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2018 DIGILAW 537 (JK)

Mohammad Rafiq Sofi v. State of J&K

2018-07-19

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. The Collector Land Acquisition, Budgam (hereinafter to be referred as ‘the Collector’) issued the initial Notification dated 19.08.1996 under Section 4(1) of the State Land Acquisition Act, 1990 (hereinafter to be referred as ‘the Act’) notifying that land measuring 8 kanals comprising of Khasra Nos. 665 min (0K-1M), 668 (0K-7M), 669 min (1 K 3 M), 672 m (3K-2M), 673m (3K-1M) and 674m (0K-6M) situate at village, Budgam, Tehsil and District, Budgam was required for a public purpose, namely, construction of Fire Service Station, Budgam and invited objections in this regard. On the recommendation of the Collector made by him vide his No. Land Acq/Collector/843-44 dated 03.12.1996 Government issued Notification under Section 6 of the Act dated 03.02.1997. The Collector issued notice under Sections 9 and 9A dated 06.03.1997 and made and announced the final award on 14.10.1998. 2. In this petition under Article 226 of the Constitution of India read with Section 103 of the State Constitution, the petitioners, who claim to be the owners of the land comprised in Khasra No. 669 min (1K) and 672 min (3K-2M), challenge and seek writ of certiorari to quash the aforementioned Notification under Section 4 of the Act and writ of mandamus to restrain the respondents from causing any interference with their possession over the land comprised in Khasra Nos. 669 min and 672 min. 3. Heard Mr. J. H. Reshi, Advocate, appearing on behalf of the petitioners and Mr. M. A. Wani, learned Senior Additional Advocate General, appearing on behalf of the respondents. I have perused the record. 4. The impugned Notification and in that the entire acquisition proceedings are challenged by the petitioners, primarily, on the ground that the acquisition proceedings have been conducted behind their back and without providing them opportunity of being heard before depriving them of their fundamental right to hold their land. It is contended that the impugned notification under Section 4(1) of the Act was not published in the manner as prescribed therein inasmuch as the same was sent to the Manager, Srinagar Times, for publication in daily newspaper “Srinagar Times” and was not published in any other newspaper. It is contended that notice dated 25.11.1996 was issued to the petitioner through Patwari after expiry of the time prescribed in the Notification under section 4 of the Act. 5. The bottom line of submissions made by Mr. It is contended that notice dated 25.11.1996 was issued to the petitioner through Patwari after expiry of the time prescribed in the Notification under section 4 of the Act. 5. The bottom line of submissions made by Mr. Reshi, appearing on behalf of the petitioners, was that Section 4(1) of the Act, besides providing for issuance of initial notice for acquisition of land, also prescribes the procedure for publication of the said notice and the notice as well as the subsequent acquisition proceedings are vitiated and rendered illegal, if the prescribed procedure is not followed. Learned counsel submitted that the prescribed procedure was patently ignored and violated by the Collector by sending the copy of the Notification to one newspaper alone, notwithstanding that the Notification was required to be published in two daily newspapers including one in regional language and was further required to be affixed in the locality and announced by beat of drum. Mr. Reshi cited a Division Bench judgment of this Court in Farooq Ahmed Band and ors. v. State of Jammu and Kashmir and ors, 2017 (1) JKJ 552 . 6. The Collector, herein respondent No.3, in his short reply has raised a preliminary objection in regard to the maintainability of the writ petition contending that pursuant to the award dated 14.10.1998 the possession of the land stands handed over to the department and challenge to the award after long lapse of time is barred by delay and laches. Similar objection has been raised by the indenting department, herein respondent No.4. 7. The objections in regard to the delay and laches in filing the writ petition and the maintainability of the writ petition on account of the alleged handing over of the possession of the acquired land to the indenting department are taken up first. 8. Learned Senior Additional Advocate General, Mr. Wani, appearing on behalf of the respondents, pointed out that this writ petition has been filed in the year 2003, that is, about five years after passing of the award and submitted further that under Section 16 of the Act, with the taking over of possession of the acquired land from the land owners, the ownership vests absolutely in the Government and right of challenging the acquisition does not survive to the land owners. 9. 9. The clear and unequivocal stand of the petitioners in their petition as well as the rejoinder filed at a later stage is that the possession of the subject land has never been taken over from them by the Collector or handed over to the indenting department and they continue in possession of and are growing crop on the said land. It is contended also that even the compensation of the land has not been received by the petitioners. It has been contended that the petitioners were never served with any notice under Section 9 or 12 of the Act nor did they know that any award has been passed. The possession of the land continues with them and they are growing paddy in the said land. They were under a reasonable belief that the said land has not been acquired. Specific plea of the petitioners is that few weeks prior to filing of the writ petition, they decided to raise construction on the subject land and started making preparations in this regard, when they came to know that award has been passed on 14.10.1998. It is contended in the rejoinder also that the Collector has even proposed to the State that some alternate land can be arranged for acquisition for the said public purpose as the petitioners are basically the ‘Dal dwellers’ likely to be shifted from Dal Lake and have purchased this land for construction of their residential houses. 10. It is well settled indeed that once all the steps in acquisition proceedings have been taken, award has been passed and possession of the acquired land taken over from its owner, the acquired land will be deemed to have vested in the Government and the court should be loath to entertain any challenge to the acquisition and quash the acquisition proceedings. (See. Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Limited (1996) 11 SCC 501 , Star Wire (India) Ltd. v. State of Haryana (1996) 11 SCC 698 , C. Padma v. Deputy Secretary to the Government of Tamil Nadu (1997) 2 SCC 627 , Municipal Council, Ahmednagar v. Shah Hyder Beig (2000) 2 SCC 48 and Swaika Properties (P) Ltd. v. State of Rajasthan (2008) 4 SCC 695 ). Contextually, it is by now well settled that High Court will not entertain a petition under Section 226 of the Constitution filed after long lapse of time because that may adversely affect settled/crystallized rights of parties. In Banda Development Authority, Banda v. Moti Lal Aggarwal and ors, (2011) 5 SCC 394 , the Supreme Court, while dealing with a case involving delay of about six years between passing of the award and filing of writ petition, has held that “in matters involving challenge to the acquisition of land for public purpose, this court has consistently held that delay in filing the writ petition should be viewed seriously and relief denied to the petitioner if he fails to offer plausible explanation for the delay” and that “the delay of even few years would be fatal to the cause of petitioners, if the acquired land has been partly or wholly utilized for the public purpose.” 11. Admittedly this writ petition has been filed about five years after passing of the award dated 14.10.1998. The important questions, thus, arising for consideration in determining the affect of five years’ delay in filing the writ petition by the petitioners and the maintainability of the petition would be; whether the possession of the subject land was taken over by the Collector and/or handed over to the indenting department, whether the said land has been wholly or partially used for the public purpose for which it was acquired and whether the petitioners have given plausible explanation for five years’ delay in filing the writ petition. 12. Respondent No.3, the Collector, in the reply filed on his behalf has not disclosed the mode and the manner in which possession of the acquired land was taken from the petitioners, much less, as to when the same was done. Even the indenting department, respondent No.4, in the reply filed on their behalf, does not say that the subject land has been actually handed over to them and that the said land has been put to use for the purpose it was acquired for. Even the indenting department, respondent No.4, in the reply filed on their behalf, does not say that the subject land has been actually handed over to them and that the said land has been put to use for the purpose it was acquired for. The respondent No.4 have rather explained in paragraph 3 of their reply that they are in possession of another land duly transferred to the Fire Services Department by virtue of Government Order dated 09.06.1980 but a portion of the said land has been encroached upon by Department of Health and therefore, alternate land and building in lieu of the encroached portion of their land has been promised by the Health Department. The indication given is that the land notified by the impugned Notification under Section 4 of the Act is to be provided to respondent No.4 in lieu of their land, which has been encroached upon by the Health Department. 13. On the other hand, the petitioners in their rejoinder have produced two documents which would rather clinch the controversy in regard to taking over of the possession of the subject land from the petitioners and/or handing over of the possession to the indenting department, that is, respondent No.4, besides copies of the Khasra entries for the year 2002 (Rabi) and 2011 (Kharief) and 2012 (Rabi). One of these documents is the Letter No. Land Acq/Coll/1731-33 dated 12.12.2002 written by the Assistant Commissioner ® Budgam to the Revenue Minister of the State and the other is the Letter No. Land Acq/Coll/409-11 dated 08.07.03 written by the Assistant Commissioner Revenue to the Special Assistant to Revenue Minister. From a collective reading of the said two letters, it is evident that the petitioners have been clamoring for not being deprived of their land and to be permitted to raise their residential houses on the said land because of their displacement due to ‘Dal development’. Further it is revealed that the possession of the land has not been taken over either by the indenting department, that is, the Fire Services Department or by the Health Department, which it appears, has to provide alternate land to the Fire Services Department in lieu of their land occupied by the Health Department. Further it is revealed that the possession of the land has not been taken over either by the indenting department, that is, the Fire Services Department or by the Health Department, which it appears, has to provide alternate land to the Fire Services Department in lieu of their land occupied by the Health Department. These two letters, however, do not indicate that possession of the acquired land was ever taken by the collectorate and prove beyond doubt that the acquired land has not been put to use for the purpose for which it has been acquired, not even partially. 14. It hardly needs to be stated that mere passing of award by the Collector does not tantamount taking of possession of the acquired land by the Collector or its transfer to the indenting department. Section 16 of the Act contemplates a specific act of taking the possession of the acquired land, which is to be done after the award has been made and announced by the Collector. Section 16 is reproduced for ready reference: “16. Power to take possession: When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances.” 15. Though Section 16 of the Act does not lay down any mode or procedure for taking the possession of the acquired land from the owners of the land, nonetheless, it is well settled that taking of possession from the landowners within the meaning of Section 16 means taking of possession on spot. It is neither a possession on paper nor a symbolic possession. The party, say the Collector, when it pleads that consequent upon the award, possession of the land was taken, must state as in what manner and when the possession was so taken. (See. Balwant Narayan Bhagde v. M.D.Bhagwat, (1976) 1 SCC 700 and Banda Development Authority (supra)). 16. In Banda Development Authority’s case (supra), the Supreme Court after surveying series of judgments of the Court has culled out following principles in regard to the mode of taking possession of the acquired land under Section 16 of the Act : “The principles which can be culled out from the above noted judgments are: (i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. (iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document. (v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.” 17. As pointed out above, the mode and the time of taking over the possession of the subject land by the Collector has not been stated in the reply filed on his behalf. The record produced on behalf of the respondents was examined with the assistance of the learned Senior Additional Advocate General appearing on behalf of the respondents. Nothing has been found on the said record to show that the act of taking the possession of the acquired land by the Collector was ever performed by or on behalf of the Collector on spot or even on papers. Record would show that after passing of the award there had been a long exchange of correspondence between the Collector, the Fire Services Department and the Health Department in regard to taking possession of the acquired land by the Fire Services Department, that is, the indenting department. Record would show that after passing of the award there had been a long exchange of correspondence between the Collector, the Fire Services Department and the Health Department in regard to taking possession of the acquired land by the Fire Services Department, that is, the indenting department. Two worth noticing communications are the Letter No. ADB/BD/598-601 dated 12.08.2002 written by the Assistant Director, Fire Services to the Director, Fire Services and letter No. 195-26/LAc dated 23.08.2002 written by the Tehsildar, Budgam to the Collector. Collective reading of these two letters would show that the Naib Tehsildar, Budgam and the Assistant Director, Fire Services, Budgam accompanied with a team of the officials of Tehsildar’s Office had gone on spot for demarcating the land on 08.08.2002. However, the demarcation was not allowed by the land owners. Record also reveals that, in the meantime, the petitioners had approached the Revenue Minister and the aforementioned letters relied upon by the petitioners were written by the Collectorate in that context confirming that possession had not been handed over to the indenting department even up to date of communication No. Land Acq/Coll/409-11 dated 08.07.03. Nonetheless, the record contains a document dated 11.03.04, at its page No. 183 showing that on that day possession of the entire acquired land was handed over by Naib Tehsildar, Budgam to the Station Officer, J&K Fire Services. However, again nothing could be found on the record as to how and in what mode the possession was handed over to and taken over by the said Station Officer. No record has been produced on behalf of the respondents to show that even this paper formality done on 11.03.2004 was ever reflected in the revenue records. The record produced on behalf of the respondents contains Khasra entries for the year 2003 (Kharief) and 2004 (Rabi) wherein the subject land mentioned in aforementioned two Khasra numbers has been shown in ownership and possession of the petitioners. 18. On the analysis of the record produced before this court, as also having regard to the pleadings of the parties, it can be safely concluded that possession of the acquired land was never taken by or on behalf of the Collector, physically, symbolically or even on papers. 18. On the analysis of the record produced before this court, as also having regard to the pleadings of the parties, it can be safely concluded that possession of the acquired land was never taken by or on behalf of the Collector, physically, symbolically or even on papers. It was only on 11.03.2004 that paper formality of handing over the possession to the indenting department by the Naib Tehsildar was done without the possession ever having been taken by or on behalf of the collectorate on spot and handing over the same on spot to the indenting department. Further, it is clear from the record that activity in regard to taking of the possession from the petitioners had started after passing of the award in the year 1998 and had gained momentum in the year 2002 with exchange of the series of communications between the Collector, the indenting department and the Health department. It was around this time that the petitioners, who initially approached the Revenue Minister, filed this writ petition in July, 2003. 19. In backdrop of the above discussed facts and circumstances, in particular the fact that petitioners remained in continuous possession of their land and the possession was never taken over by or on behalf of the Collector, this petition cannot fail on the ground of delay or laches and I would hold that the petitioners approached this Court at the appropriate time when they were not allowed to make preparation for raising construction on and apprehended their dispossession from the land. 20. Reverting back to the non-compliance of Section 4(1) of the Act, which is the main plank of the petitioners' challenge to the impugned initial Notification issued by the Collector and the entire acquisition proceedings, Section 4(1) is reproduced: “4 (1). Publication of preliminary notification and powers of officers thereupon Whenever land in any locality is needed or is likely to be needed for any public purpose the Collector shall notify it – (a) Through a public notice to be affixed at convenient places in the said locality and shall also cause it to be known by beat of drum and through the local Panchayats and Patwaries; (b) In the Government Gazette; and (c) In two daily newspapers having largest circulation in the said locality of which at least one shall be in the regional language.” 21. Section 4(1) of the Act lays down clear and complete procedure for publication of the initial Notification issued by the Collector that sets in motion the process of acquisition of the land under the Act. It lays down the different modes of publication of the notice, which are to be followed simultaneously and not in exclusion of each other. These are (i) by affixing a public notice at a convenient place in the locality in which the land sought to be acquired is located, (ii) by reading out the notice by beat of drum through the local Panchayats and Patwaries, (iii) publication of the Notification in the Government Gazette and (iv) publication of the Notification in two daily newspapers having largest circulation in the said locality, of which at least one shall be in the regional language. 22. The reply filed on behalf of the Collector does not refer to the mode in which the Notification under section 4 was published, though it states slightly that all requisite procedure under the Act was fulfilled. The Notification lying on the record would show that one of its copies was sent to Manager, Government Press, Srinagar for publication in the next issue of the Gazette and a copy was sent to the Manager, “Srinagar Times” for publication in ‘Daily Srinagar Times’. One copy was sent to the Tehsildar, Budgam for necessary action. 23. It is, thus, clear that the Collector did not direct the publication of the Notification in two newspapers, one of them being in regional language and publication by affixing its copy or a notice in the locality or by beat of drum. There is nothing on record to show that affixing of the Notification or beating of drum in the locality was done. The Notification though was sent for publication in the Government Gazette and in one named English Daily, record does not even show that the same was done. It is, thus, clear that the Notification was not published in the manner as prescribed under Section 4 (1) of the Act. Contextually, petitioners have produced copy of a summons (Annexure B) issued to them by Patwari Halqa, Budgam on 25.11.1996, whereby they were asked to file objections, if any, to the acquisition of the land in question. It is, thus, clear that the Notification was not published in the manner as prescribed under Section 4 (1) of the Act. Contextually, petitioners have produced copy of a summons (Annexure B) issued to them by Patwari Halqa, Budgam on 25.11.1996, whereby they were asked to file objections, if any, to the acquisition of the land in question. It is not understandable from the record as to how this notice came to be issued, when the Notification under Section 4 (1), which was issued on 19.08.1996, provided 15 days’ time only for filing the objections. The said summons, however, it can be said, was totally useless and meaningless because, having been issued on 25.11.1996, it required the interested persons to file the objections by 05.11.1996, that is, a date much prior to the date of summons. 24. Strict compliance of Section 4(1) of the Act is not only necessary and mandatory, but a significant requirement of law as it ingrains compliance with the principle of natural justice by providing the land owners or interested persons right of hearing and opposing the acquisition as provided under Section 5 (A) of the Act. As the Notification under Section 4 (1) was not published in the prescribed manner, in particular, by affixing and announcing the same by beat of drum in the locality, it can well be believed that the petitioners did not get the opportunity to raise any objection against acquisition of their land, which they claim to have purchased for raising their residential houses after their displacement from their native place. The non-compliance of Section 4(1) became the reason for the Collector to report to the Government in his recommendation dated 13.12.1996(supra) that no objection was received from the concerned Zamindars by him. 25. The effect and consequences of non-publication of the initial Notification in the manner as prescribed in Section 4(1) of the Act and thereby depriving the interested persons/land owners of their right of hearing under Section 5 (A) has been accorded consideration by a Division Bench of this Court recently in Farooq Ahmed Band and ors. (supra) in a similar fact situation, where the Notification under Section 4(1) of the Act was not published in two daily newspapers, but has been published only in one newspaper. (supra) in a similar fact situation, where the Notification under Section 4(1) of the Act was not published in two daily newspapers, but has been published only in one newspaper. Learned Division Bench has held that “when there is non-compliance of Statutory Provision which affects the fundamental right of a person to hold immovable property, the acquisition proceedings are rendered illegal and unconstitutional” and has quashed the Notification issued under Section 4(1) and the subsequent Notifications including draft award, however, keeping it open for the respondents therein to initiate fresh process for acquisition of the subject land. 26. In this case also, there has been clear and significant breach of Section 4 (1) of the Act. The Notification admittedly was sent for publication in one newspaper only and not in two, one of them in regional language. The record does not show that the Notification was published by affixing the same at the conspicuous place in the locality or beat of drum. The Notification as well as all subsequent proceedings including the final award, therefore, are vitiated and rendered illegal. 27. For all that said and discussed above, this petition is allowed and by issue of a writ of certiorari, the impugned Notification under Section 4(1) of the Act and all subsequent proceedings including the final award qua the petitioners’ land are quashed and by issue of a writ of mandamus, respondents are directed not to cause any interference in the use and occupation by the petitioners of their land comprised in Khasra Nos. 669 min and 672 min (supra). It shall, however, remain open for the respondents to commence fresh acquisition proceedings, if so desired. 28. Record be remitted back through the counsel for the respondents.