Jammu & Kashmir High Court - Srinagar Bench
Bansi Lal Bhat vs State Of J&K And Ors on 13 August, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 320 of 2011 CMP No. 517 of 2011 Bansi Lal Bhat Petitioners State of J&K and ors. Respondents !Mr. M. Ayoub Bhat, Advocate ^Mr. Z. A. Shah, Advocate Mr. Asif Maqbool, Advocate Mr. N. H. Shah, Advocate Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date:13/08/2012 : J U D G M E N T :
M. M. Kumar, CJ
1. These two appeals* under Clause 12 of the Letters Patent are directed against the common judgment and order dated 23.12.2011 rendered by the learned Single Judge of this Court, dismissing the writ petition, OWP no. 963/2011 and CMP no. 1528/2011.
2. The appellant-writ petitioners are aggrieved by acquisition of their land which is sought to be acquired by the respondent-State for a Public purpose of developing a Heritage site near Mausoleum of Poet Souch Kral at Village Inder (Pulwama). The appellant-writ petitioners are migrants and they placed reliance on a decision of the State Government dated 14.07.2009 which postulates that the land and property belonging to the migrants should not be included in the acquisition and should be acquired only as a last resort.
3. Facts in brief which have led to the filing of the instant appeal are that the appellant-writ petitioners and the proforma respondent no. 4 are owners in possession of land bearing survey nos. 876, 887, 888, 895, 896 and 908 situated at Vilage Inder Tehsil and District Pulwama. The case set up by them is that they were forced to migrate from the Village in the year 1990 or thereafter due to militancy as such they are living as migrants at Jammu. A notification bearing no. 22 of 2008 dated 28.01.2008 was issued by the Collector Land Acquisition, Pulwama under Section 4(i) of the Jammu and Kashmir Land Acquisition Act, 1990 (for brevity to be referred as the Act) reflecting the intention of the State to acquire 17 kanal 11 marlas of land situated at Village Inder Tehsil and District Pulwama. The aforesaid notification included the land belonging to the appellant-writ petitioners. They raised objections under Section 5-A of the Act. The notification in fact, lapsed as is evident from the perusal of the original record. The noting on the file would show that the intending department of Tourism did not deposit the funds which eventually led to the conclusion in para no. 31 of the original file that the notification issued under Section 4 of the Act proposing the acquisition of land had lapsed and de-notification was suggested.
4. A new beginning was made again by issuing a fresh notification under Section 4 of the Act on 24.05.2011 for acquisition of the land of the appellant-writ petitioners and the proforma respondent no.4. The total area of land was reduced to 8 kanal and 1 sarsai. The appellant-writ petitioners filed their objections under Section 5-A of the Act on 06.06.2011. Thereafter notification under Section 6 of the Act was issued on 29.06.2011. Another notification was issued under Section 9 on 14.07.2011. The appellant-writ petitioners filed OWP no. 963/2011 challenging the issuance of notification on numerous grounds. They complained that their fundamental right to hold and enjoy the property and their rights being the migrants given by the State by issuing Circular dated 14.07.2009 have also been violated. It was also urged that there was no public purpose and the personal hearing was required to be afforded to them as is contemplated by the provisions of Section 5-A of the Act. However, the learned Single Judge dismissed the writ petition.
5. A perusal of the impugned judgment would show that the learned Single Judge rejected various arguments of the appellant-writ petitioners. The first argument was based on Circular dated 14.07.2009 which contemplates that acquisition of migrant properties would be contradictory to the commitment of the State Government to encourage the process of their return to the Valley. It was thus emphasised upon all concerned that acquisition of land belonging to Kashmiri Pandit must be avoided and it must be acquired only as a last resort. The argument has been rejected by the learned Single Judge by recording the finding, which reads as under:-
In the instant case near the Mauseleum of Souch Kral the said area/land is available. From the records as have been produced for perusal it is quite clear that there is no other alternate land available for the purpose. That apart, the land is not being taken without compensation. As per records Rs. 50/ lacs (fifty lacs) have already been deposited by the indenting Department with the Collector for payment to the interested parties/owners of the land. The individual interest has to yield to the public interest. The acquisition which is meant for public purpose in any manner will not defeat any rehabilitative process for dignified return of the migrant Pandits, moreso in view of the implementation of the process of the rehabilitative measures.
6. The other argument that the development of Village Inder is not covered by expression Public Purpose was also rejected. According to the learned Single Judge, the expression Public Purpose has been defined under Section 3(g) of the Act, which incorporates inclusive definition which cannot be construed as exhaustive and, therefore, it has to be construed to include any other purpose like developing a heritage site near the Mauseleum of Souch Kral. The learned Single Judge also rejected the contention that method prescribed under Section 4 of the Act has not been adhered to by observing that the argument pales into insignificance because the purpose of following the modes and methods contemplated by Section 4 of the Act is to apprise all interested persons about the acquisition for public purpose so as to enable them to file their objections. The appellant-writ petitioners filed their objections which were considered against the original notification dated 28.01.2008 issued under Section 4 of the Act. As a result the subsequent notifications reduced the area of land proposed for the acquisition. The learned Single Judge also felt satisfied while rejecting the argument concerning the denial of opportunity of hearing under Section 5-A of the Act by observing in para 17, which reads as under:-
The next contention of the learned counsel for the petitioners is that in terms of Section 5-A, the Collector (Assistant Commissioner Revenue) while receiving the objections was required to give personal hearing to the petitioners, same has not been done but from the records it appears that the petitioners have been representing all along and whatever grievances they had have been projected in various applications as are available on record. They have also represented before the higher authorities and it is only after hectic considerations the matter has been settled. The object of hearing the petitioners in support of their objections has been achieved. After all acquisition is for public purpose. The petitioners by one pretext or the other pretext cannot be permitted to upset the whole proceedings by saying that they have not been heard. In effect they have been heard. Lot of representations and objections have been made to various authorities from time to time which are available on the records as have been produced which would amply substantiate that the object of hearing has been accomplished.
7. It is interesting to notice that the argument that the Deputy Commissioner was not competent to issue declaration under Section 6 of the Act has also been summarily rejected by the learned Single Judge by noticing SRO 235 dated 11.08.2009, holding that there is valid delegation of power. The learned Single Judge in that regard observed as under:-
Plain reading would indicate that the Deputy Commissioner has been authorized to take action required for the purposes of Section 6 & 7 of the Act. This notification has not been challenged till date. The requirement of Section 5-A is that the Collector (Assistant Commissioner Revenue) on receipt of the objections under Section 5-A has to formulate the report and to submit the same to the Government for consideration. On consideration, if the Government is satisfied that the land is needed for public purpose, a declaration has to be issued but now since the powers have been conferred to Deputy Commissioner and has been authorized to deal with the matters for the purposes of Section 6 and 7 and it is in that background Deputy Commissioner has considered the matter and was satisfied that the land is required for public purpose, so has come out with the declaration in terms of Section 6 of the Act.
8. Mr. M. Ayoub Bhat, learned counsel for the appellant-writ petitioners has made following submissions before us:-
a. That fresh notification under Section 4 of the Act was issued without any authority/power vested with the Collector Land Acquisition. According to the learned counsel when the earlier notification was issued on 28.01.2008, objections filed by the migrants were sustained and the Revenue Minister vide his Order dated 17.09.2009 had directed that property under acquisition is migrant property and process of cancellation of the acquisition should be started. A reference has also been made to the endorsement of the Minister of Social Welfare which has examined the notification. The aforesaid submissions have been made to substantiate the policy reflected in the Circular dated 14.07.2009, which keeps in front the aim of facilitating the process of rehabilitation and return of migrant Kashmiri Pandits to their original place. That could only be possible if their land and properties were not to be acquired. b. The second submission made by Mr. Bhat is that the property belonging to migrants, as per policy reflected in Circular dated 14.07.2009, should be acquired as a last resort. According to the learned counsel the land belonging to local people is available in village Inder, Pulwama for developing the area as heritage site near Mausoleum of Poet Souch Kral and the learned Single Judge is incorrect in recording a finding that no land near Mausoleum of Poet Souch Kral is available.
c. Another submission made by Mr. Bhat is that the procedure for acquisition provided by Section 4 of the Act has not been followed at all. The publication by beat of drum, as contemplated by Section 4 and through the local Panchayats and Patwaries, has not been made. He has maintained that the opinion expressed by the learned Single Judge suffers from legal infirmity that once objections were filed then basic object of following various procedural steps stood complied with and the lapse in following the procedure would be rendered directory. d. Mr. Bhat has also vehemently argued that it is not sufficient for the Collector to examine the objections of the interested persons submitted in writing. The Collector is obliged to issue a notice to afford an opportunity of hearing to all interested persons including the land owners and objectors. There is no opportunity of hearing provided as is revealed from the record.
e. Learned counsel has also submitted that notification under Section 6 has not been published in the official Gazettee nor it has been made public. A copy of the notification has also not been served on the proforma respondent no.4 in accordance with the prescribed mode under the Act.
f. Another submission made by learned counsel is that under Section 6 a declaration is required to be made under the signature of the Revenue Minister or some other officer duly authorized in this behalf. According to the learned counsel all proceedings have been conducted by the Land Acquisition Collector and it has not been signed by the Revenue Minister or any officer authorized by him.
9. Mr. N. H. Shah, learned Dy. Advocate General has supported the judgment and order of the learned Single Judge and has rebutted all the submissions made by learned counsel for the appellant-writ petitioners. He has submitted that by SRO 235 dated 11.08.2009 the powers have been conferred on the Financial Commissioner (Revenue), Divisional Commissioners and Deputy Commissioner according to their pecuniary jurisdiction to act under the provisions of the Land Acquisition Act and, therefore, it cannot be argued that the notifications have been issued by a person who is unauthorized to do so. It has further been submitted that Section 6(3) of the Act puts it beyond any doubt that once the declaration in accordance with Section 6 (1) (2) has been published then it would be regarded as conclusive evidence of the fact that land is needed for a public purpose. He has maintained that once objections in writing have been submitted and examined in exhaustive manner then no further right of hearing could be assumed by the appellant-writ petitioners because the principles of natural justice are deemed to be satisfied. The learned State counsel has maintained that all procedural steps have been religiously followed and if any insignificant step has not been followed then such a defect is curable by virtue of Section 6(3) of the Act. It has also been argued that the government policy does not go to the extent of creating a complete bar to acquire the property of a migrant by virtue of letter dated 14.07.2009. It only emphasise that all efforts should be made to spare such property and it should be acquired as a last resort.
10. Mr. Z. A. Shah, learned senior counsel appearing for the newly added respondent, has adopted the submissions of Mr. Shah.
11. We have thoughtfully considered the submissions made by the learned counsel for the parties.
12. Before embarking upon the various issues raised, it would be necessary to read the provisions of Section 4(1) and 6 of the Act, which are as under:-
4. Publication of preliminary notification and powers of officers thereupon Whenever land in ay 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. (2) .......................................................
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 in 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 divisions 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.
13. A bare perusal of Section 4 would reveal that whenever land in any locality is needed for any public purpose the Collector is obliged to notify the same through a public notice. It postulates the publication of public notice (a) to be affixed at convenient places in the said locality; (b) The Collector is also obliged to cause it to be known by beat of drum through the local Panchayats and Patwaries. The other mandate of Section 4 is (c) that it should be published in the Government Gazette and (d) two daily newspapers having largest circulation in the locality of which at least one should be in the regional language.
14. In order to find out whether the aforesaid provisions were complied with, we have summoned the original record. After abandoning the earlier notification issued on 28.01.2008, notification no. 12 of 2011 dated 24.05.2011 was issued which has been duly signed by the Collector Land Acquisition Pulwama. However, nothing is revealed from the original record that mandatory provisions of Section 4 have been complied with. As already noticed, the Collector is under obligation to publish the notification in any locality where the land is situated by affixing public notice at convenient places in the locality. He has also to cause the notice to be given to general public by beat of drums and also through local Panchayats and Patwaries. There is nothing on record to show that the Collector has notified through public notice the intention of the State to acquire the land by affixing public notice at convenient places in the locality where the land is situated. Like wise, there is no publication of notification dated 24.05.2011 in two daily newspapers nor any notification under Section 6 of the Act. The respondents appear to be satisfied with the earlier process which ended in abandoning the acquisition of the land in question. There appears to be wholesome violation of mandatory provisions of Section 4 and 6 of the Act. The question whether the provisions are mandatory or directory is no longer res integra. Honble the Supreme Court has construed the provisions of J&K Act 1990 itself in case of J&K Housing Board v. Kunwar Sanjay Krishan Koul (2011) 10 SCC 714. In that case the lapse committed by the Collector Land Acquisition was that no publication in the regional language was made. The State tried to argue that the provisions of Section 4 of the Act were directory. Rejecting the aforesaid argument their Lordships of the Supreme Court in para nos. 18, 19 and 32 held as under:-
18. As per Section 4, whenever land in any locality is needed for any public purpose, the Collector has to notify it in the manner provided in clauses (a), (b) and
(c) of sub-section (1) of the said section. Public purpose has been defined in Section 3(g) of the State Act. There is no dispute that the public purpose mentioned in the notification issued under Section 4(1) of the Act refers to development of housing colony by the Board at Village Ferozpur, Tehsil Tangmarg, District Baramulla. Undoubtedly, the said purpose is a public purpose in terms of Section 3(g) of the State Act. However, the main question before us is whether the Collector has fully complied with the mandates and procedures provided in clauses
(a), (b) and (c) of sub-section (1) of Section 4. The opening part of Section 4 i.e. whenever land in any locality is needed or is likely to be needed for any public purpose the Collector shall notify it makes it clear that the procedure provided in clauses (a), (b) and (c) of sub-section (1) is mandatory and the same has to be strictly complied with.
19. As far as affixing of notice in the locality and information through beat of drum as well as through local panchayats and patwaris are concerned, provided in sub-section (1)(a), those have been complied with. The notification was duly published in the Government Gazette which satisfies sub-section (1)(b) of Section 4. Sub-section (1)(c) of that section mandates that the Collector has to notify his intention to acquire the land/lands needed for public purpose in two daily newspapers having largest circulation in the said locality of which at least one shall be in the regional language.
32. It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefor in the Act. Merely because the parties concerned were aware of the acquisition proceedings or served with individual notices does not make the position alter when the statute makes it very clear that all the procedures/modes have to be strictly complied with in the manner provided therein. Merely because the landowners failed to submit their objections within 15 days after the publication of notification under Section 4(1) of the State Act, the authorities cannot be permitted to claim that it need not be strictly resorted to.
15. It is appropriate to point out that Honble the Supreme Court in the case of Syed Hasan Rasul Numa v. Union of India (1991) 1 SCC 401, has categorically held in para no. 13 that the provisions of Section 4 (1) of the Land Acquisition Act 1894 were mandatory in character. The aforesaid para is set out to highlight that the provisions of Section 4(1) is mandatory in character, which reads thus:-
13. There is a broad basis for the view that we have taken from the decisions of this Court although on the provisions of other enactment. Section 4(1) of the Land Acquisition Act, 1894 provides for publication of the notification in the Official Gazette and in two daily newspapers circulating in that locality where the land is situated of which at least one shall be in the regional language. Section 4(1) further provides that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. In Khub Chand v. State of Rajasthan, AIR 1967 SC 1074 Subba Rao, C.J., while construing the object and scope of Section 4(1) expressed the view that provisions of the section requiring public notice are mandatory and the legislature thought that it was absolutely necessary that the owner of the land should have a clear notice of the proposed acquisition. It was said that the fact that the owner may have notice of the particulars of the intended acquisition by any other means does not serve the purpose of Section 4 and does not absolve the obligation to follow the method of publication of the notification. It was also observed that the notification issued under Section 4(1) without complying with the mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would also be void. This view has been reiterated in a number of subsequent decisions of this Court. In Collector v. Raja Ram Jaiswal most of the earlier decisions have been referred to and the view taken in Khub Chand case has been reiterated.
(Emphasis added)
16. In an another judgment of the Supreme Court, namely, Kunwar Pal Singh v. State of U.P (2007) 5 SCC 85, the provisions of Section 6(2) of the Land Acquisition Act 1892 were examined and it was held that all the three requirements of (a) publication in the official Gazette, (2) publication in two daily newspapers circulating in the locality in which the land is situated of which at least one shall be in the regional language and (3) causing public notice of the substance in the locality where the land is situate, are mandatory. Para 16 of the judgment in Kunwar Pal Singhs case (supra) reads as under:-
16. Section 11 speaks about enquiry into measurements, value, claims and award by the Collector. Section 12 makes it clear that the award passed by the Collector shall be final and conclusive evidence as between the Collector and the persons interested. Sub-
section (2) of Section 12 mandates that the Collector shall give immediate notice of his award to such of the persons interested, as are not present personally or by their representatives when the award is made.
Section 17 relates to special powers entrusted to the Collector in case of urgency. Section 18 speaks about the reference to court to determine the objections as to the quantum of compensation or the measurement of land and procedure to be followed thereupon. In the last part i.e. Part VIII, which provides miscellaneous provisions, Section 43 speaks about the service of notice and makes it clear that how notice under this Act shall be made, etc.
17. The provisions in Jammu and Kashmir Land Acquisition Act are not different in sum and substance then the provisions of Land Acquisition Act, 1892. Therefore, we are of the considered view that there is wholesome violation of mandatory requirement of Section 4(1) and 6 (2) of the Act in publication of notification dated 24.05.2011 and same would not be sustainable. The learned Single Judge has not appreciated the legal position and has committed error in law by observing that the object of publication of notice under Section 4 is to apprise the land owners of their rights to file objections and once the objections have been filed by the appellant-writ petitioners then non-compliance with regard to the mode and method of publication of notice under Section 4 (1) stands cured. In the face of the settled law by Honble the Supreme Court, the view of the learned Single Judge is obviously not acceptable.
18. In order to appreciate the issue with regard to grant of opportunity of hearing in respect of objections filed by the interested persons, it would be necessary to read Section 5-A of the Act, which is as under:-
5-A Hearing of objections (1) Any person interested in any land which has been notified under section 4, sub-section (1) , as being needed or likely to be needed for a public purpose may within fifteen days after such land is notified in the manner prescribed in clause
(a) of sub-section (1) of section 4 as being needed or likely to be needed for a public purpose object to the acquisition of the land or of any land in the locality, as the case may be;
(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader or by a person authorised by him and shall after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the Government, together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Government on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.
19. A perusal of the aforesaid provision would show that the Collector is under an obligation to grant an opportunity of hearing to an objector either in person or by pleader or by a person authorised by him. It would necessarily involve issuance of a notice fixing a place, date and time for hearing of objections. It is after hearing of objections and making any such further enquiry; he is required to submit the case for the decision of the government together with the record of the proceedings held by him and a report containing his recommendation on the objections. The decision of the Government on the objections shall be final.
20. However, a perusal of the original record shows that admittedly no such opportunity was afforded. There is not a whisper in the record to show that any notice of hearing was given to the objectors disclosing them time and place of hearing. For the proposition that affording an opportunity of hearing of objections is mandatory, we place reliance on various judgments of Honble the Supreme Court rendered in cases of Tej Kour v. State of Punjab (2003) 4 SCC 485, Hindustan Petroleum Corporation v. Darius Shapur Chemicals (2005) 7 SCC 627, Radhy Shyam v. State of U.P (2011) 5 SCC 553, Raghubir Singh v. State of Haryana (2011) 1 SCC 792, Farid Ahmed v. Municipal Corporation (1976)3 SCC 719 and Essco Fabs v. State of Haryana (2009) 2 SCC 377. We are, therefore, of the view that on a plain reading of Section 5-A, furnishing of opportunity of hearing is mandatory as has also been held in the aforesaid judgments of Honble the Supreme Court that the hearing is mandatory. To say that once the objectors have filed objections which have been duly considered then the opportunity of hearing was not required to be afforded or the opportunity is deemed to be afforded would amount to violation of the settled principles of law. In view of the over whelming authority of law requiring the Collector to afford opportunity of hearing to the interested persons / appellant-writ petitioners, the acquisition of land in the present case cannot be sustained on that ground also.
19. We could have proceeded to examine numerous other arguments including one based on Circular dated 14.07.2009 which protects the property of the migrant Kashmiri Pandits from acquisition, however, in view of our findings on the non-compliance of Section 4, 5-A and 6 of the Act, we are not inclined to consider the other arguments.
20. As a sequel to the above discussion, the appeal succeeds. The impugned judgment of the learned Single Judge is set aside and notification dated 24.05.2011, seeking to acquire land measuring 8 kanal and 1 sarsai situate at Village Inder Tehsil and District Pulwama, and subsequent proceedings are declared void and are hereby quashed. It is declared that the land belonging to the appellant-writ petitioners and the proforma respondent no.4 would be free from any proceedings issued in pursuance to notification dated 24.05.2011. The appellant-writ petitioners are entitled to costs which is quantified at Rs. 25,000/-. The cost shall be paid to them by an account payee cheque within a period of two months.
(Hasnain Massodi) (M. M. Kumar) Judge Chief Justice Srinagar 13.08.2012 Anil Raina, Secy 1. LPA no. 320 of 2011 & CMP 517/2011 Bansi Lal Bhat and ors v. State and ors 2. LPA no. 174 J of 2011 Shiban Lal Bhat v. State & Ors (Hasnain Massodi) (M. M. Kumar) Judge Chief Justice Srinagar 13.08.2012 Anil Raina, Secy