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2017 DIGILAW 74 (JK)

Kaka Ram v. State of Jammu and Kashmir

2017-02-17

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2017
JUDGMENT : Tashi Rabstan, J. This Letters Patent Appeal is directed against the judgment and order, dated 03.01.2015 delivered by the learned single Judge in OWP No. 57/2013, whereby while dismissing the writ petition of appellants-writ petitioners, the learned single Judge has upheld the award passed by the Special Collector, Land Acquisition Army, Udhampur in respect of land of appellants-writ petitioners, measuring 199 kanals and 12 marlas, situate at Village Kashirah, Tehsil & District Udhampur, thereby rejecting the plea of writ petitioners that no service of notice under Section 9 of the J&K Land Acquisition Act, 1990 would have the effect of vitiating the acquisition proceedings and rendering the award illegal. 2. The main bone of contention of present controversy, as projected by the appellants-writ petitioners before this Court as well as before the Writ Court was that no service of notice in respect of acquisition proceedings of the land-in-question in terms of Section 9 of the Act had ever been effected on the appellants-writ petitioners, even no immediate notice in regard to making of the award on 09.04.1999 in terms of Section 12(2) of the Act was issued to them, rather the same was issued only on 18.01.2003, i.e., after more than three years and nine months of passing of the award, that too the same was never served/effected upon the appellants-writ petitioners nor the appellants-writ petitioners were in knowledge of the same. Thus, the appellants-writ petitioners claim that since the respondents have failed to satisfy the provisions of Land Acquisition Act, 1990 (hereinafter, for short, the Act), the award passed by the Collector respondent No. 3 herein, requires to be quashed. 3. However, the learned Writ Court, while dismissing the writ petition, rejected the plea of writ petitioners with the observation that it would not be correct to say that the award should be made and announced after issuing notice to the interested persons in terms of Section 9 of the Act and/or in their presence, as such, no service of notice in terms of Section 9 of the Act would not have the effect of either vitiating the acquisition proceedings or rendering the award illegal. Hence, the present Letters Patent Appeal. 4. Before proceeding further, it would be relevant to reproduce Section 9 of the Act, hereunder: '9. Notice to persons interested. Hence, the present Letters Patent Appeal. 4. Before proceeding further, it would be relevant to reproduce Section 9 of the Act, hereunder: '9. Notice to persons interested. - (1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that the claims to compensation for all interests in such land may be made to him. (2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent, before the Collector at a time and place therein mentioned (such time not being earlier then fifteen days after the date of publication of notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests and their objections (if any) to the measurements made under Section 8. The Collector may in any case, require such statements to be made in writing and signed by the party or his agent. (3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside, or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate. (4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered in accordance with the Postal Rules in force for the time being in that behalf. 9-A. The Collector shall also cause a notice to be served on the Head of the Department for which land is to be acquired or his nominee requiring him to appear before him on the date fixed under Section 9 for the appearance of the interested persons and to state his objections, if any, to the measurement made and to the amount of the tentative compensation that may be assessed.' 5. Section 9(3) of the Act clearly stipulates that the Collector has to serve notice in terms of Section 9(1) & 9(2) of the Act on the occupier, if any, of the land to be acquired by the Government. Whereas, what does Section 9(2) of the Act stipulates that' such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent, before the Collector at a time and place therein mentioned...' The words 'shall require' appearing in the said section is sort of mandatory in nature, as requirements with 'shall' are the mandatory requirements and it can be paraphrased as ' has the duty to'; meaning thereby the Collector was not only duty bound to issue notice to the appellants-writ petitioners in terms of the said section in respect of acquisition proceedings of the land-in-question, but was also required to ensure that service of notice is effected on them, although it was another thing whether the appellants-writ petitioners chose to appear before the Collector or not. However, it seems the learned single Judge while deciding the issue has mis-interpreted the section. 6. The purpose of this Section is to enable the landholders/interested persons to furnish their claims to compensation for the land to be acquired by the Government for public purpose. Therefore, in terms of the said section, the appellants-writ petitioners were also required to furnish their respective claims/interests to compensation for the land to be acquired by the writ respondents once notice in terms of Section 9 of the Act was served upon them by the Collector. Therefore, in terms of the said section, the appellants-writ petitioners were also required to furnish their respective claims/interests to compensation for the land to be acquired by the writ respondents once notice in terms of Section 9 of the Act was served upon them by the Collector. Since it has come on record in the judgment delivered by the learned Writ Court that the learned AAG appearing before it had failed to show from the record produced that notice under Section 9 of the Act had actually come to be issued by the Collector to the appellants-writ petitioners or that they had refused service of notice, we are of the considered view that the writ respondents have failed to satisfy the provisions of Section 9 of the Act, rather the Collector without satisfying the requirements of said Section has passed the award at the back of appellants-writ respondents Since no service of notice was ever effected upon the appellants-writ petitioners before passing of the award and they had no occasion to put forth their respective claims for the land to be acquired by the writ respondents, the same has the effect of vitiating the acquisition proceedings and rendering the award illegal. 7. The appellants-writ petitioners have also assailed the award on the ground that the Collector had failed to issue immediate notice of his award to them in terms of Section 12(2) of the Act. 8. Admittedly, the award came to be made by the Collector on 09.04.1999, however, notice in terms of Section 12(2) of the Act was issued to the appellants-writ petitioners only on 18.01.2003, i.e., after more than three years and nine months of passing of the award; whereas in terms of said section, the Collector was required to issue immediate notice of his award after passing of the same. Further, the respondents have failed to show whether the notice issued on 18.01.2003 in terms of Section 12(2) of the Act had actually been served upon the appellants-writ petitioners or, whether they were in receipt of the said notice either actually or constructively. Whereas, it is the specific case of appellants-writ petitioners that they were never in receipt of such notice nor they had the knowledge of same. 9. Here, we would like to reproduce hereunder the relevant portion of paragraph-5 of the judgment of Apex Court delivered in a case, titled as, Harish Chandra v. Dy. Whereas, it is the specific case of appellants-writ petitioners that they were never in receipt of such notice nor they had the knowledge of same. 9. Here, we would like to reproduce hereunder the relevant portion of paragraph-5 of the judgment of Apex Court delivered in a case, titled as, Harish Chandra v. Dy. L.A. Officer. AIR 1961 SC 1500 : ' ..... Therefore, if the award made by the Collector is in law no more than an offer made on ' ¢behalf of the Government to the owner of the property then the making of the award as properly understood must involve the communication of the offer to the party concerned. That is the normal requirement under the contract law and its applicability to cases of award made under the Act cannot be reasonably excluded. Thus considered the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words 'the date of the award' ? Occurring in the relevant section would not be appropriate.' ? 10. Same view has been taken by the Apex Court in a case, titled as, Bhagwan Dass v. State of U.P. (2010) 3 SCC 545 : ( AIR 2010 SC 1532 ) 11. Also, it is to be seen that Section 11-B of the Act mandates the Collector to make the award within a period of two years from the date of publication of declaration, failing which the entire proceedings for the acquisition of land shall lapse. 12. Also, it is to be seen that Section 11-B of the Act mandates the Collector to make the award within a period of two years from the date of publication of declaration, failing which the entire proceedings for the acquisition of land shall lapse. 12. In the present case, the writ record reveals that in terms of Section 6 of the Act, the declaration to the effect that the land-in-question is required for public purpose was published in the Government Gazette on April 10, 1997, the approval of rate proposed by the Collector was conveyed by the Financial Commissioner, J&K Government on April 6, 1999, through Divisional Commissioner, Jammu vide his endorsement dated April 07, 1999 and the Collector made the award on April 09, 1999, i.e., exactly on the last date of completion of two years from the date of publication of declaration, otherwise the acquisition proceedings would have lapsed and died its own death due to efflux of time. Although it reveals that the respondents have made an effort to convince the Court that making of award was within time from the date of declaration, yet one fails to understand that what prompted the writ respondents to issue immediate notice of award to the appellants-writ petitioners in terms of Section 12(2) of the Act after more than three years and nine months of passing of the award. Even the respondents have failed to show whether the said notice had actually been served upon the appellants-writ petitioners or not. Thus, it clearly reveals that the Collector did not satisfy the provisions of Section 12(2) of the Act, and it is nothing but a total laxity on the part of writ respondents in dealing with public matters of great importance. Thus, it clearly reveals that the Collector did not satisfy the provisions of Section 12(2) of the Act, and it is nothing but a total laxity on the part of writ respondents in dealing with public matters of great importance. Therefore, all the above discussion compels us to come to the conclusion that the writ respondents or the Collector were only concerned with the making of award within the stipulated period in order to avoid the period of limitation without bothering whether the provisions of Land Acquisition Act, more particularly Section 19 of the Act were being complied with or not in the given facts, we find force in the contention of learned counsel for appellants-writ petitioners that making of award by the Collector on April 09, 1999 might have been back-dated only to meet the period of limitation, especially when it has come on record of the writ petition that the intending department too after more than three years and nine months of passing of the award had deposited the amount of compensation. Even the Collector in paragraph-23 of objections to the writ petition had admitted that the intending department had made available the awarded amount after more than three years and nine months of passing of the award. Therefore, in the given circumstances, the acquisition proceedings as well as the award do not sustain and are liable to be quashed and set aside. 13. Further, this Court on 19.12.2016 enquired from the learned counsel for writ respondents whether the possession of land-in-question has been taken over by the intending department or not, notification for which was issued more than two decades earlier, i.e., on 18.09.1986. When this matter was taken up on 31.01.2017, Mr. Jamwal, learned Sr. Panel Counsel fairly stated that the possession of land-in-question has not been taken as yet from the appellants-writ respondent; meaning thereby the said land still lies in possession of appellants-writ respondents from the date of issuance of notification two decades earlier. Now it is February, 2017 and the market value of said land must have risen to a great extent. It has also come on record that compensation in respect of the land-in-question has also not been paid to the appellants-writ petitioners. 14. What is held by the Apex Court in paragraph-17 of a case, titled as, Velaxan Kumar v. Union of India, AIR 2015 SC 1462 is reproduced hereunder: '17. It has also come on record that compensation in respect of the land-in-question has also not been paid to the appellants-writ petitioners. 14. What is held by the Apex Court in paragraph-17 of a case, titled as, Velaxan Kumar v. Union of India, AIR 2015 SC 1462 is reproduced hereunder: '17. On considering the facts and circumstances of the present case in the light of the legal principles laid down by this Court in the cases referred to supra, we are of the view that neither compensation has been paid by the respondents to the appellant for the said acquisition even though more than five years have elapsed from the date of Award when the Act of 2013 came into force w.e.f. 01.01.2014 nor physical possession of the land belonging to the appellant has been taken by the respondents. Therefore, the acquisition proceedings in respect of the appellants land have lapsed in terms of Section 24(2) of the Act of 2013. In view of the law laid down by this Court in Pune Municipal Corporations case and other cases referred to supra, we are of the opinion that the same are applicable to the fact situation on hand in respect of the land covered in this appeal for granting the relief as prayed by the appellant in the application.' 15. Also, what is held by a co-ordinate Bench of this Court in State of J & K v. Mani Ram, AIR 1994 J & K 62, is reproduced hereunder:- '10. So it emerges and is held that Section 4 of the J&K Land Acquisition Act has laid down that in addition to the publication of notice in the official gazette, the Collector must also give publicity of the substance of such notification in the concerned locality wherefrom the land in question is required to be acquired by the Government for a public purpose. Unless both these conditions are satisfied, Section 4 cannot be said to have been complied with. The publication of a notice at a convenient place in the concerned locality and made it to be known by beat of drum and through the local Panchayats and Patwari, is a mandatory requirement and is not directory in nature. Unless both these conditions are satisfied, Section 4 cannot be said to have been complied with. The publication of a notice at a convenient place in the concerned locality and made it to be known by beat of drum and through the local Panchayats and Patwari, is a mandatory requirement and is not directory in nature. It has an important purpose behind it, for in the absence of such publication, all the interested persons may not be able to file their objections about the acquisition proceedings and they will thus be deprived of their right of representation, provided under Section 5A of the J&K Acquisition Act, which is a very valuable right available to a party, who has an interest in the land, which is being acquired by the Government for public purpose. It is only when the notification is published in the Govt. Gazette and it is accompanied by/or immediately followed by the public notice that a person interested in the property proposed to be acquired, can be recorded to have the notice of such proposed acquisition. 11. We are, therefore, entirely in agreement with the view taken by the learned single Judge that such a requirement as required under Section 4 of the J&K Land Acquisition Act has not been fulfilled by the appellant-State and as such the learned single Judge has been right in allowing the writ petition of the respondents and quashing the acquisition proceedings taken in the matter.' 16. In the present case too, notification for acquiring the land was issued on 18.09.1986 and declaration to the effect that the land-in-question is required for public purpose was published in the Government Gazette on April 10, 1997, whereas, though as per writ respondents, the Collector made the award on April 09, 1999, yet they failed to show whether the appellants-writ respondents were in receipt of notice of making of award or not in terms of Section 12(2) of the Act. Anyhow, even after more than two decades of issuance of notice on 18.09.1986, neither the possession of land-in-question has been taken over by the intending department nor compensation has been paid to the appellants-writ petitioners. Therefore, on this count too and in view of the decisions of Apex Court (supra), neither the acquisition proceedings nor the award sustain and the same are liable to be quashed and set aside. 17. Therefore, on this count too and in view of the decisions of Apex Court (supra), neither the acquisition proceedings nor the award sustain and the same are liable to be quashed and set aside. 17. Therefore, in view of what has been discussed above, we find merit in the appeal. Accordingly, the same is allowed and the judgment, impugned herein, is set aside Consequently, the writ petition filed by the appellants-writ petitioners is also allowed and the acquisition proceedings as well as the award passed by the Collector in respect of the land-in-question are quashed and set aside. However, the writ respondents/Collector are at liberty to issue notice to the appellants-writ petitioners afresh for acquisition of the land-in-question after following due procedure as mandated in the J&K Land Acquisition Act. Connected miscellaneous petition, if any, accordingly stands disposed of.