Jammu & Kashmir High Court
Muzzafar Ahmed Beigh And Others vs State Of J&K And Others on 24 November, 2021
Author: Pankaj Mithal
Bench: Chief Justice, Mohan Lal
Sr. No. 11
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
CJ Court
Reserved on 10.11.2021
Pronounced on: 24.11.2021
Case: OWP No. 1472 of 2013
Muzzafar Ahmed Beigh and Others .....Appellant/Petitioner(s)
Through :- Sh. Abhinav Sharma, Senior Advocate
with Sh. Vishal Sharma, Advocate
v/s
State of J&K and Others .....Respondent(s)
Through :- Sh. S.S.Nanda, Sr. AAG for respondent
Nos. 1 to 4
Sh. Ravinder Gupta, AAG for
respondent No. 5
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
PANKAJ MITHAL, CJ:
1. The three petitioners are brothers and have preferred this writ petition for the quashing of the notification dated 12.04.2008 issued under Section 4(1) of the Jammu and Kashmir Land Acquisition Act, 1996 (hereinafter referred to as „the Act‟); quashing of the notification dated 28.07.2010 issued under Sections 6 & 7 of the Act; quashing of the notices dated 29.07.2010 issued under Sections 9 and 9A of the Act;
and for the quashing of the final award dated 27.07.2011 passed under Section 11 of the Act. A further prayer has been made that the respondents be restrained from dispossessing the petitioners from their land/house.
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2. The petitioners claim ownership and possession of 18 marlas of land of Khasra No. 459 situated in Mouza Birshalla Tehsil and District Doda.
3. It is stated that out of the aforesaid 18 marlas of land, 10 marlas of land is a vacant piece of land whereas on the remaining 8 marlas, two houses of the petitioners exist.
4. It is alleged that on the request of the Executive Engineer, PWD (R&B), Special Sub-Division Doda-respondent No. 5 dated 12.04.2008, the Collector Land Acquisition, Doda-respondent No. 4 issued a notification under Section 4 (1) of the Act notifying to acquire 01 kanal and 4 ¼ marlas of the land in the village which included three marlas of the land of the petitioners. The said notification was, however, not published in the manner prescribed in law. It was never affixed at convenient places in the locality or was not caused to be known to the people by beat of drums or through local Panchayat /Patwaris.
5. The petitioners were not provided with hearing on objections as contemplated by Section 5-A of the Act so as to oppose the proposal to acquire the land. The notification issued under Section 4 (1) of the Act was made known to the petitioners only on 24.08.2008 and the petitioners immediately within four days filed their objections to the proposed acquisition before the Collector. The objections were within time from the date of service /knowledge of the notification.
6. The petitioners, in the objections, apart from other things, alleged that the proposal to acquire the aforesaid land for the purposes of link road is not justified. The said link road is not needed by the residents of 3 OWP No. 1472 of 2013 the place and that there is no demand for such a link road as in the vicinity there is already double sided highway available. The proposal to acquire the said land for construction of road is mischievous and is not for a bonafide public purpose, rather it is for the benefit of one individual.
7. The petitioners further allege that they were not given any opportunity of hearing on the aforesaid objections and straight away without recording of the satisfaction of the State Government, a declaration under Section 6 of the Act was issued. The award incorrectly states that objections to the proposal to acquire the land were not filed whereas in fact, pursuance to the notification dated 12.04.2008 which was served upon the petitioners on 24.08.2008, they had filed objections within four days which were not considered and placed before the State Government. The aforesaid acquisition is otherwise also bad in law as it has been undertaken at the instance of the brother-in-law of the local MLA, who would be the sole beneficiary of the above acquisition/construction of the link road.
8. A response to the writ petition has been filed by respondent Nos. 1 to 4 stating that the notification issued under Section 4 of the Act was widely circulated but objections were not filed by anyone within the stipulated time. In the absence of the objections, the competent authority prepared a report and submitted it to the prescribed authority for issuing a declaration under Section 6 of the Act. The Deputy Commissioner empowered by the Government to issue the declaration under Section 6 of the Act rightly issued the same and, thereafter, the proceedings for 4 OWP No. 1472 of 2013 acquisition ended with the passing of the award dated 27.07.2011 under Section 11 of the Act. The petition suffers from delay and latches as it has been filed after more than five years of the notification issued under Section 4 of the Act.
9. The reply of respondent Nos. 1 to 4 also states that the copy of the notification issued under Section 4 (1) of the Act was sent to the Tehsildar for service upon all interested persons and also to the Manager, Government Ranbir Press, Jammu for publication in the Government Gazette.
10. It is further stated that the notices issued under Sections 9 and 9-A of the Act were sent to Tehsildar, Doda for service upon the interested persons, a copy was also pasted on spot with copies to the Manager, Government Ranbir Press, Jammu for publication in the Gazette as well as to the District Information Office, Doda for getting it published in the newspaper but even then the objections were not filed by the petitioners within time and, as such, no illegality has been committed in making declaration under Section 6 of the Act.
11. A separate set of objections have been filed on behalf of respondent No. 5, who simply reiterates the facts as stated by respondent Nos. 1 to 4 but in addition states that in pursuance to the final award dated 27.07.2011, full amount has been advanced to the Collector for payment of compensation.
12. On the above pleadings, Sh. Abhinav Sharma, senior counsel appearing for the petitioners submits that the entire acquisition proceedings stand vitiated in law for want of non-publication of the 5 OWP No. 1472 of 2013 notifications issued under Sections 4 and 6 of the Act in all the prescribed modes and for non-affording opportunity of hearing to the petitioners on their objections filed under Section 5-A of the Act. Lastly, it has been contended that the declaration made under Section 6 of the Act is without jurisdiction as the Government has not recorded its satisfaction that the land is actually needed for the public purpose.
13. In the light of what has been said above, three issues arise for our consideration, namely, first, whether the notification issued under Section 4 of the Act has been published in the manner prescribed in law and, if not its effect; Secondly, whether the petitioners have filed objections to the proposed acquisition and were given notice or opportunity of hearing by the Collector and report thereof was placed for consideration of the State Government; and lastly; whether there was due publication of the declaration made under Section 6 of the Act after the Government has recorded its satisfaction that the land is needed for public purpose.
14. Section 4 of the Act in unequivocally terms provides that whenever any land is needed for any public purpose, the Collector shall notify it by (i) public notice to be affixed at convenient places in the locality; (ii) shall cause it to be known by beat of drums and through local Panchayats and Patwaries; and (iii) by publishing it in two daily newspapers having largest circulation in the locality of which one at least shall be in the regional language.
15. A reading of Section 4 of the Act clearly reveals that the publication of the notification issued under Section 4 of the Act is 6 OWP No. 1472 of 2013 mandatorily required to be published in all the three modes as referred to above. This is implicit by use of the word „shall‟ therein.
16. The Apex Court in context with similar and identical provision contained under Section 4 of the Land Acquisition Act 1894 in „State of Mysore v. Abdul Razak Sahib,' AIR 1973 SC 2361' categorically lays down that unless both the modes of publication prescribed under Section 4 of the Act are satisfied, i.e., publication of the notice in the locality as well as in the gazette the notification would not be valid inasmuch as the said requirement is mandatory in nature and deprives the person interested from his valuable right of filing their objections.
17. In „State of Haryana and another versus Raghubir Dayal, (1995) 1 SCC 133, it has been held that requirement of publication of the substance of the notification in the locality under Section 4(1) of the Act is mandatory.
18. It is in the light of the above legal position that we have to examine if the notification issued under Section 4 of the Act was properly published and if not its effect.
19. The petitioners have categorically pleaded that "the provisions of Clause (a) of Sub-section (1) of Section 4 of the Land Acquisition Act were not followed as the notice dated 12.04.2008 was neither affixed at convenient places in the said locality, nor caused to be known by beat of drums or through local Panchayats and Patwaries...."
20. In response thereof, the objections of respondent Nos. 1 to 4 simply states that the notification issued under Section 4 (1) of the Act was sent to the Tehsildar, Doda for service upon all interested persons 7 OWP No. 1472 of 2013 (including petitioners) and a copy thereof was also sent to the Manager, Ranbir Government Press, Jammu for its publication in the Government gazette.
21. The respondents have not brought on record any document to show that the Tehsildar, Doda had effected the service of the notification upon the persons interested or has caused it to be published by beat of drums or by pasting it at some convenient place of the locality. It has also not been said that the notification was announced in the locality by beat of drums or was got published in the locality through local Panchayats or Patwaries. There is no material enclosed with the reply to establish that the Manager, Ranbir Government Press, Jammu took any initiative to get the notification published in the two daily newspapers or that it was actually published.
22. The respondent No. 5 in his reply to the writ petition is completely silent in regard to the averments made by the petitioners in context with the publication of the notification issued under Section 4 of the Act.
23. The original record of the acquisition, as produced by Sh. S.S.Nanda, Senior AAG, upon careful consideration reveals that no document, as referred to above, which may establish that the substance of the notification issued under Section 4 of the Act was published in any newspaper or was pasted at some convenient place in the locality or was announced by beat of drums or otherwise through the local Panchayat or Patwari or Tehsildar.
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24. In view of the aforesaid facts and circumstances, it is as clear as crystal that the notification issued under Section 4 of the Act was not published in the modes as prescribed under the Act rendering the said notification to be invalid in law.
25. The principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way only or not at all as laid down in „Taylor versus Taylor (1876) 1 Ch. D. 426' is well settled and well recognized. It has been followed umpteenth times by the Supreme Court and the High Courts of the country.
26. In view of the above principle, the notification issued under Section 4 of the Act which is mandatorily required to be published has to be published in all the prescribed modes and not in any other way.
27. In „The Madhya Pradesh Housing Board versus Mohd. Shafi, (1992) 2 SCC 168,' the larger Bench of Supreme Court held that if the notification under Section 4(1) of the Act is not issued in accordance with law or is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition to be bad.
28. In „The Special Deputy Collector, Land Acquisition, CMDA versus J. Sivaprakasan and others,' (2011) 1 SCC 330, the Supreme Court inter alia opined that if there is failure to publish the notification in two daily newspapers or if the publication is in two newspapers that have no circulation at all in the locality, the notification and the consequential acquisition proceedings will be vitiated for the non- compliance of the essential condition of Section 4(1) of the Act. 9 OWP No. 1472 of 2013
29. The Supreme Court in „J&K Housing Board and another versus Kunwar Sanjay Krishan Kaul and others, (2011) 10 SCC 714,' in considering the provisions of Section 4 of the Act itself held that the expression „collector shall notify„ occurring in Section 4(1) makes it clear that the notice is mandatory required to be published in all the three modes and the provision has to be strictly complied with as when a statutory provision provides a particular manner for doing a particular act, the said thing must be done only in the manner prescribed and not otherwise. The fact that the parties concerned were aware of the acquisition proceedings or there is service of individual notices makes no difference.
30. In „Bansi Lal Bhat versus State of Jammu and Kashmir and others, 2012(4) J.K.J. 272,‟ a Division Bench of this court while considering the requirements of Section 4 of the Act laid down that the publication of the notification in official gazette, in two local daily newspapers, one of which shall be in regional language and publication of the substance of the newspaper in the locality is mandatory and, if any of them is not complied with, the acquisition would be improper and liable to be quashed.
31. In view of the above discussion vis-à-vis the facts and circumstances of this case, as the notification issued under Section 4 of the Act was not published in all the prescribed modes, the said notification is non-est and invalid in the eyes of law.
32. Now coming to the second issue, it may be noted that Section 5-A of the Act provides for an opportunity to the interested persons to object 10 OWP No. 1472 of 2013 to the likely acquisition of the land by filing objections to the Collector, who is enjoined upon to give the objector an opportunity of being heard and after hearing and making such inquiry as may be necessary to submit a report for decision of the Government. This is necessary for the reason that before making a declaration under Section 6 of the Act that the land is actually needed for public purpose, the Government has to record its satisfaction in this regard after considering such a report of the Collector.
33. The aforesaid Section 5-A of the Act provides for making the objections within 15 days of the notification. However, where the notification is not published in the prescribed modes, it would be next to impossible for any person interested to file objections to it within 15 days of its issuance. In such circumstances the period of 15 days for filing objections has to be read as 15 days from the date of the knowledge of the notification rather than the date of its issuance.
34. The petitioners have categorically stated that the notification issued under Section 4 of the Act was made known to them only on 24.08.2008 at 6.00 P.M through one Mohd Ramzan, Lamberdar, Doda and before the said date they had no knowledge of it. They had filed objections to the proposed acquisition immediately thereafter vide communication dated 28.08.2009 addressed to the Collector. The award incorrectly states that the objections were not filed within time by the petitioners probably referring to the time period of 15 days from the date of the notification.
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35. It is also averred that neither the objections of the petitioners so filed were submitted to the State Government for its decision nor was the satisfaction of the Government recorded that the land is needed for public purpose before issuing the declaration. In this way, the procedure prescribed under Section 5-A of the Act was not followed in issuing the declaration under Section 6 of the Act.
36. In reply to such averments made in the writ petition, respondent Nos. 1 to 4 state that none has filed objections within the specified period of 15 days and, as such, there was no occasion to afford opportunity of hearing to them. The notification under Section 4 of the Act was issued by the Deputy Commissioner, Doda, who was duly empowered by the State Government for the purpose.
37. It may be important to mention here that though the pleadings with regard to hearing of objections are otherwise but the original record of acquisition as produced, reveals that the petitioners were given hearing on the objections which is reflected from the signatures of the petitioners on the back of the notification issued under Section 9 and 9-A of the Act certifying their presence before the Collector. In the light of the document (Page 52 of the record), it cannot be said that the procedure prescribed under Section 5-A of the Act was not followed or the petitioners were deprived of the opportunity of hearing on their objections.
38. This takes us to the last issue with regard to the publication of declaration issued under Section 6 of the Act and the satisfaction of the State Government recorded before issuing it.
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39. Section 6 (2) of the Act provides that the declaration made under Section 6(1) of the Act shall be published in the official gazette. Even though, there are no specific pleadings that the said declaration was not published in the official gazette but the petitioners have alleged that there was no proper publication of the said declaration. The record, as produced before us, does not reveal any document which may show even remotely that the declaration issued under Section 6 of the Act was published in any newspaper. It contains no copy of any gazette in which it may have been published. Therefore, the implication is clear that it has not been published in the gazette. The non-publication of the declaration issued under Section 6 of the Act in the gazette vitiates the proceeding for acquisition as the issuance and publication of such a declaration is a sine qua non for a valid acquisition.
40. It may be noted that the award which contains complete details of the acquisition also nowhere contains any averment as to the publication of the declaration issued under Section 6 of the Act in the gazette, meaning thereby that it has not been published.
41. Lastly, we deal with the argument of recording of the satisfaction of the State Government that the land is needed for public purpose.
42. A plain and simple reading of Sub-section (1) of Section 6 which is relevant for our purpose reveals that a declaration under Section 6 has to be made when the Government is satisfied that the land is needed for public purpose and such a declaration is to be made under the signature of the Revenue Minister or of some other Officer duly authorized in this behalf. In other words, Sub-section (1) of Section 6 of the Act envisages 13 OWP No. 1472 of 2013 two essential requirements, namely, 1) recording of the satisfaction of the Government that the land is needed for public purpose; and 2) publication of a declaration under the signature of the Revenue Minister or of some officer duly authorized in this behalf.
43. In respect of the above twin requirements of Sub-section (1) of Section 6 of the Act, it is to be noted that the recording of the satisfaction has to be by the Government alone and not by any other person or authority whereas the issuance of the notification/declaration can be by the Revenue Minister or any other officer authorized. The power exercisable by the Revenue Minister can be delegated where as it is not so with regard to the power exercisable by the Government.
44. Admittedly, the declaration issued under Section 6 of the Act has been issued by the Deputy Commissioner, Doda, who may be the officer to whom the power to issue the same may have been delegated but there is no document or material which records the satisfaction of the State Government. The authorization to issue the declaration to any officer of the State Government does not mean that the Government has or could have delegated its power to record satisfaction as contemplated under law.
45. In view of the aforesaid facts and circumstances, in the absence of any satisfaction recorded by the State Government that the land is needed for public purpose, the acquisition stands vitiated.
46. In „Viredner Pandoh v. State of Jammu and Kashmir and Others,' OWP No. 1329 of 2012 decided on 08.09.2021 by the Division Bench of this Court of which one of us (Hon‟ble CJ) was a member, it has been 14 OWP No. 1472 of 2013 ruled that the power of recording satisfaction as envisaged under Section 6 of the Act is non-delegable and has to be exercised by the State Government and, in the absence of such satisfaction of the State Government, the acquisition of the land would stand vitiated.
47. In the light of the above discussion, we are of the view that the notification issued under Section 4 (1) of the Act and the declaration made under Section 6 of the Act are both invalid as the notification has not been published in all the prescribed modes and the declaration has been issued without recording any satisfaction of the State Government that the land is needed for public purpose. Accordingly, we have no option but to quash the acquisition proceedings qua the petitioners and their land alone.
48. The writ petition is allowed and the original record produced is directed to be returned.
(MOHAN LAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU
24.11.2021
Tilak
Whether the order is speaking ? : Yes
Whether the order is reportable? : Yes.
Judgment is pronounced by me today in terms of Rule 138 (4) of the Jammu and Kashmir High Court Rules, 1999.
(PANKAJ MITHAL) CHIEF JUSTICE JAMMU:
24.11.2021