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2021 DIGILAW 564 (JK)

Mohammad Ramzan Lone v. State of J&K

2021-10-28

PANKAJ MITHAL, VINOD CHATTERJI KOUL

body2021
JUDGMENT : Pankaj Mithal, J. 1. Heard Mr. M. A. Qayoom, learned counsel for the petitioner and Mr. B. A. Dar, learned Sr. AAG, for the respondents. 2. The petitioner by means of the present writ petition is challenging the land acquisition proceedings in respect of his land measuring 1 kanal 3 marlas covered by survey no.168 situate at Bumhama, Kupwara. 3. The aforesaid land along with some other land total measuring 5 kanals and 15 marlas was notified to be acquired for the purpose of construction of a residential quarter of Planning Department Tehsil and District Kupwara. The proposal to acquire the land under Section 4(1) of the Jammu and Kashmir Land Acquisition Act Samvat 1990, hereinafter to as the Act, was published on 03.03.2014 and was followed by a declaration dated 30.01.2018. In connection with the aforesaid acquisition, the award under Section 11 of the Act was pronounced on 06.03.2018 and consequently its possession was taken over on 07.03.2018. 4. The primary argument of learned counsel for the petitioner is that the aforesaid purpose of constructing a residential quarter for Planning Department is not a public purpose and the land cannot be acquired for it. Secondly, the notification issued under Section 4 of the Act was not published in the manner prescribed under law. Similarly the declaration made under Section 6 was also not properly published especially in the Gazette. Therefore, the acquisition proceedings stand vitiated in law. The learned counsel for the petitioner has also contended that the acquisition has been done without following the procedure prescribed under Section 5-A of the Act and in violation of Section 9(2) and 9(3) of the Act as the said notices were never served upon the petitioner. The possession of the acquired land could not have been taken without payment of 80% of the estimated compensation in accordance with Section 17-A of the Act. 5. In order to decide whether the land has been validly acquired or not the first and the foremost question which is to be considered is whether the notifications issued under Sections 4 and 6 of the Act have been validly published and if not what is the effect of the same? 6. 5. In order to decide whether the land has been validly acquired or not the first and the foremost question which is to be considered is whether the notifications issued under Sections 4 and 6 of the Act have been validly published and if not what is the effect of the same? 6. The petitioner in one of the paragraphs of the writ petition has clearly stated, referring to the notification issued under Section 4 of the Act on 03.03.2014, that “the notice was also neither served nor published in the newspaper in the manner provided by Section 4(1) of the Land Acquisition Act. “In one another paragraph, referring to notification issued under Section 6 of the Act dated 30.01.2018, it has been categorically stated that ?the notification dated 30.01.2018 had not been served by the respondents on the petitioner and it has also not been published in the official Gazette…..” 7. In view of the above pleadings made by the petitioner in the writ petition, the petitioner contends that the land acquisition proceedings stand vitiated in law for want of proper publication of the notifications issued under Section 4 and 6 of the Act in the manner prescribed in law. 8. The respondents were given ample time to respond to the writ petition. In response two sets of objections have been filed basically on behalf of respondent no.4-Deputy Commissioner, Kupwara, and respondent no.6-Assistant Commissioner (Revenue), Kupwara. 9. The respondent no.4 in his reply accepts that on the indent of the Director General, Economics and Statistics, Jammu & Kashmir, dated 05.09.2013 land for construction of office cum residential accommodation of the District Statistics and Evaluation office and its agencies was notified to be acquired by issuing a notification dated 03.03.2014 under Section 4(1) of the Act. He also states that the compensation in respect of the said land was settled with most of the land holders in the Private Negotiation Committee but some of the land owners including the petitioner showed reluctance to accept the rate so settled. Therefore, proceedings for compulsory acquisition were continued and a notification under Section 6 of the Act was issued followed by the consequential notices. The respondent no.4 in the aforesaid counter has not stated anything regarding the manner of publication of the notifications issued under Sections 4 and 6 of the Act. Therefore, proceedings for compulsory acquisition were continued and a notification under Section 6 of the Act was issued followed by the consequential notices. The respondent no.4 in the aforesaid counter has not stated anything regarding the manner of publication of the notifications issued under Sections 4 and 6 of the Act. The petitioner’s specific averment regarding the improper publication of the notifications has not been replied to at all. 10. A perusal of the reply filed by respondent no.6 also reveals that it mentions about the issuance of the notifications but again fails to disclose the manner in which the notifications under Sections 4 and 6 of the Act were published. The averments of the petitioner in that regard have not been replied. 11. It is pertinent to reproduce Sections 4 and 6 of the Act which reads as under: “4. Publication of preliminary notification and powers of officers thereupon.— (1) 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 two daily newspapers having largest circulation in the said locality of which at least one shall be in the regional language. (2) After the Collector has notified any land in the manner prescribed in clause (a) of sub-section (1) as being needed or likely to be needed for a public purpose] it shall be lawful for any officer, either generally or specially authorised by the Government in this behalf, and for his servants and workmen,— to enter upon and survey and take levels of any land in such locality ; to dig or bore into the sub-soil ; to do all other acts necessary to ascertain whether the land is adopted for such purpose ; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon ; to make such levels, boundaries and line by placing marks and cutting trenches ; and where otherwise the survey cannot be completed, and the levels taken and the boundaries and lines marked, to cut down and clear away any part of any standing crop, fence or jungle : Provided that, no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least [ten days] notice in writing of his intention to do so. 6. Declaration that land is required for public purpose. –– (1) When the Government is satisfied after considering the report, if any, made under section 5-A, sub-section (2), that any particular land is needed for public purpose, a declaration shall be made to that effect under the signature of the Revenue Minister or of some officer duly authorised in this behalf : Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid wholly or partly out of the public revenues or some fund controlled or managed by a local authority. (2) The declaration shall be published in official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate areas and where a plan shall have been made of the land, the place where such plan may be inspected. (2) The declaration shall be published in official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate areas and where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that land is needed for a public purpose, and after making such declaration the Government may acquire the land in manner hereinafter appearing.” 12. A reading of the Section 4 of the Act discloses that the Collector is obliged to notify the need of any land for any public purpose through a public notice to be affixed at convenient places of the locality and shall cause it to be known to the public by beat of drum and through local panchayats and patwaris. He shall also notify the same in two daily newspapers having largest circulation in the locality and at least one of the daily newspapers shall be in the regional language. In short, the publication of the notification under Section 4 shall be in the following way: (i) Public notice by affixation at convenient places of the locality; (ii) Publication by beat of drums and through local panchayats and patwaris; and (iii) By publication in two daily newspapers of one shall be in regional language. 13. Now coming to the essentials of the notifications issued under Section 6 of the Act, a perusal of the same would reveal that such a notification is required to be published in the official Gazette which shall be treated as conclusive evidence that the land is needed for public purpose. Therefore, the publication of the notification/ declaration issued under Section 6 of the Act in the official Gazettee is a sin-qua-non. 14. The pleadings as referred to earlier would indicate that though the petitioner has categorically stated that the notification under Section 4 was not published in the manner prescribed under the said provision and that the declaration under Section 6 of the Act was not published in the Gazette, there is no specific denial or reply to the same in the counter affidavits filed on behalf of respondents 4 and 6. The Court in the above circumstances has required Mr. B. A. Dar, learned Sr. AAG, to produce the original records relating to the acquisition of the aforesaid land. The Court in the above circumstances has required Mr. B. A. Dar, learned Sr. AAG, to produce the original records relating to the acquisition of the aforesaid land. The record was duly produced and put in possession of the Court. 15. We have duly perused the record. The record do not contain any material not even the copy of the Gazette in which the aforesaid declaration issued under Section 6 of the Act was ever published. There is no document in the record which would even indicate that the said declaration was sent for publication in the official Gazette. 16. In context with the notification issued under Section 4 of the Act, the record contains two newspapers of Urdu language, namely, The Daily Tameel Irshad and The Daily City Express dated 5th and 6th February, 2018. The said Urdu newspapers contain notices with regard to the notification issued under Section 4 of the Act but both the notices are in English language. In this situation in a way the notification under Section 4 of the Act has been published in the two newspapers but only in English though in Urdu papers. Accordingly, there is no publication of the notification in the regional language. There is no newspaper on record which may show that the publication of the aforesaid notification in any other newspaper or in any other language. 17. The purpose of publication of the substance of the notification in newspaper is to give wide publicity to enable the affected or interested person to know of the intention of the respondents. It is with this reason only that its publication in regional language is also mandatory. The publication of notification in a newspaper of regional language but in English is not a publication in regional language. 18. In view of the aforesaid facts and circumstances, the notification issued under Section 6 of the Act has not been published in the Gazette and the notification issued under Section 4 of the Act has not been published in the newspapers in the regional language and in the manner prescribed i.e., either by pasting the notice in some conspicuous place of the locality or by beat of drum or through local panchayats and patwaris. There is no publication whatsoever of the aforesaid notification in the regional language in any newspaper. 19. There is no publication whatsoever of the aforesaid notification in the regional language in any newspaper. 19. The use of the word ‘shall’ in Sections 4 and 6 of the Act clearly establishes that the compliance of the aforesaid provisions is mandatory. It is imperative upon the respondents to publish the two notifications in all the modes prescribed thereunder. 20. It is well settled that if a Statute provides for doing a thing in a particular manner then it should be done in the manner so prescribed or not at all. Therefore, when the Statutes provide for publication of the notifications in the locality, by beat of drum, though local panchayats and patwaris, newspapers and in the Gazettee, the notifications ought to be published in all the aforesaid modes. 21. In Special Deputy Collector, Land Acquisition C.M.D.A v. Sivaprakasam and others : (2011) 1 SCC 330 , the Apex Court dealing with the nitigrities of the manner of publication of the notifications issued under Section 4 of the Land Acquisition Act highlighted the purpose behind the said publication and went on to hold that even if the newspapers are having market of 2% to 3% percent of the total circulation of newspapers in the locality it would be a regular and steady circulation but finally held that if there is failure to publish the notifications in two daily newspapers or if the publication is in two newspapers that have no circulation at all in the locality, the notification under Section 4 and the consequential acquisition proceedings will be vitiated on the ground of non-compliance of the essential condition. 22. Another decision of the Supreme Court in J&K Housing Board and another v. Kunwar Sanjay Krishan Kaul and others : (2011) 10 SCC 714 in context with the notification under Section 4 of the above Act held that the publication of the notification in all the prescribed modes is mandatory and merely because land owners had knowledge or failed to file objections would not make the notification valid if it is not published in the manner provided. It has been categorically laid down that the expression ?Collector shall notify? occurring in Section 4(1) of the Act makes it clear that the procedure provided under Section 4(1)(a) and 4(1)(b) is mandatory and has to be strictly complied with. It has been categorically laid down that the expression ?Collector shall notify? occurring in Section 4(1) of the Act makes it clear that the procedure provided under Section 4(1)(a) and 4(1)(b) is mandatory and has to be strictly complied with. Accordingly, the judgment of the High Court quashing the notification issued under Section 4 of the Act was upheld. 23. The aforesaid two decisions clinches the issue in favour of the petitioner and it can safely be said that as the notifications issued under Sections 4 and 6 of the Act were not published in the manner prescribed under law, the land acquisition proceedings consequent to the said notifications stand vitiated and cannot be recognized as valid. Accordingly, the notification issued under Section 4 of the Act dated 03.03.2014 and the notification under Section 6 of the Act dated 30.01.2018 in so far as the land of the petitioner is concerned are held to be invalid and the consequential proceedings thereto are meaningless. 24. In view of the above opinion expressed by us on one of the points raised in the writ petition, we do not deem it necessary to touch the other points. 25. Both the writ petitions are accordingly allowed in the aforesaid terms with no order as to costs. 26. The record produced by Mr. B. A. Dar, learned Sr. AAG, be returned to him.