Jammu & Kashmir High Court
Balwant Singh And Others vs State Of J&K And Others on 16 December, 2021
Author: Pankaj Mithal
Bench: Chief Justice, Mohan Lal
Sr. No. 11
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
CJ Court
Reserved on 16.11.2021
Pronounced on: 16.12.2021
Case: OWP No. 879 of 2014
Balwant Singh and Others .....Appellant/Petitioner(s)
Through :- Sh. Pranav Kohli, Senior Advocate with
Sh. Arun Dev Singh, Advocate
v/s
State of J&K and Others .....Respondent(s)
Through :- Sh. S.S.Nanda, Sr. AAG
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
PANKAJ MITHAL, CJ:
1. The petitioners claim that they were owners in possession of land measuring 486 kanals and 19 marlas forming part of Khasra No. 2528 situated at village Baghala Tehsil and District Samba which devolved upon them through succession. The name of the petitioners was duly mutated vide Mutation No. 2877 and 2454, which is duly reflected in the revenue records.
2. That respondents-State Authorities initiated proceedings for acquiring about 626 kanals and 05 marlas of land in District Samba for the establishment of a Central University at the indent of the Higher Education Department, Jammu.2 OWP No. 879 of 2014
3. The petitioners contend that the aforesaid acquisition includes their land as well and, as such, aggrieved by the aforesaid action, they have been compelled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India.
4. The petitioners, accordingly, have preferred this petition seeking quashing of the notification dated 26.12.2011 issued by the Collector, Land Acquisition/Assistant Commissioner, Revenue, Samba under Section 4 (1) of the Land Acquisition Act, 1990 (for short 'the Act') and the consequential notices purported to have been issued under Sections 9 and 17 of the Act, the draft award dated 28.09.2012 with directions restraining the respondents from raising any further construction on the acquired land. In short, petitioners want quashing of the entire land acquisition proceedings in connection with the above land.
5. It may be pertinent to note that the petitioners have not challenged the declaration made under Section 6 of the Act by which the aforesaid land was finally notified to have been acquired. The said declaration under Section 6 of the Act was allegedly issued on 30.01.2012 by the Commissioner/Secretary to the Government, Revenue Department, Jammu and Kashmir.
6. The petitioners have challenged the acquisition proceedings as aforesaid primarily on the ground that the procedural requirement as envisaged under Section 4 (1) of the Act was not followed by the State Authorities in issuing the notification dated 26.12.2011 under Section 4 (1) of the Act.3 OWP No. 879 of 2014
7. It is contended that as the notification under Section 4 (1) of the Act was never notified/published in accordance with the manner prescribed under Section 4 (1) of the Act, therefore, the acquisition is bad in law. It is specifically alleged that the aforesaid notification was not published in the locality wherein the land is situated. There was no publication of the substance of the notification either in the locality or the two newspapers having large circulation.
8. This apart, it has been alleged that the notices issued under Sections 6,7, 9, 9A and 17 of the Act were never served upon the petitioners but the petitioners on acquiring Knowledge of the aforesaid acquisition proceedings in the month of January 2012, filed their objections to the proposed acquisition on 23.01.2012 and 03.03.2012 with the bonafide belief that their objections would be duly considered but the respondents without providing any opportunity of hearing proceeded with the acquisition and acted in violation of Section 5A of Act. No compensation as contemplated under Section 17A of the Act was paid to the petitioners.
9. The respondents Nos. 1 to 4 filed objections to the writ petition contending that on the indent placed by the Higher Education Department for setting up Central University, the Collector land Acquisition, Samba issued a notification dated 26.12.2011 under Section 4 of the Act. The petitioners were personally served with the above notification through the Tehsildar, Samba, who deputed the concerned Patwari to effect service upon the petitioners. The notification under Section 4 of the Act was also affixed in the office of 4 OWP No. 879 of 2014 the Collector as well as on the conspicuous places of the land under acquisition. In response to the said notification, the interested persons filed objections on 23.01.2012 through petitioner No. 15, Upjeet Singh.
Thereafter, notice was issued to the petitioners on 09.01.2012 fixing 14.01.2012 for hearing but none of the petitioners attended the office of the Collector. Accordingly, a report was prepared by the Collector on 21.01.2012 and was submitted to the Divisional Commissioner, Jammu for onward transmission to the Government for issuing the necessary declaration under Section 6 of the Act. The Government, after being fully satisfied that the land is needed for public purpose, vide notification dated 09.06.2012 issued a declaration under Section 6 of the Act. The said notification was issued under the signatures of the Commissioner/Secretary to the Government, Revenue Department.
10. The respondents further state that as the Collector/Government was satisfied that there was urgency in the matter, thus the provisions of Section 17 of the Act were also invoked so as to take possession of the land before the pronouncement of the award. Accordingly, the possession of the land was obtained on 16.10.2012 and after due consideration final award was announced on 22.12.2012.
11. Sh. Pranav Kohli, senior counsel argued that as the notification under Section 4 (1) of the Act was not published in the prescribed manner, it stands vitiated in law. Since opportunity of hearing was not afforded to the petitioners and the procedure prescribed under Section 5A of the Act was not followed, the entire acquisition is bad. The 5 OWP No. 879 of 2014 acquisition is also faulty for the reason that notices under Sections 9, 9A and 17 of the Act were not served upon the petitioners.
12. The record of the petition reveals that sometime in the year 2014, Sh. S.S.Nanda, Senior AAG was directed to produce the record in relation to the aforesaid acquisition. Due to non-production of the record, even bailable warrants were issued. Subsequently, the record was produced and was presented before us at the time of hearing. At that time, he sought further time as he felt that the record was short of certain documents. The court reluctantly in the interest of justice, allowed him a week's time to collect the necessary documents, such as, the newspapers in which the notification issued under Section 4 of the Act was alleged to have been published or the gazette in which the declaration made under Section 6 of the Act was published. The record was again produced on the next date of hearing and was placed in possession of the court.
13. The averment that the notification issued under Section 4 (1) of the Act was not published in the manner provided and in the two newspapers has not been specifically replied to by the respondents except for stating that it was pasted in the locality and was personally served upon the persons interested. The respondents have not averred that it was actually published in the newspapers.
14. We have gone through the record and find that there is no document therein which may establish that the notification issued under Section 4 of the Act was published in all the three modes prescribed under Section 4 of the Act. At least there is no newspaper in the record 6 OWP No. 879 of 2014 which may indicate that the substance of the said notification was published in the two newspapers.
15. It is important to note that according to Section 4 (1) of the Act, the notification proposing to acquire the land has to be published by: (i) affixing it at convenient places in the locality; (ii) by beat of drums through local Panchayat and Patwaries; and (iii) in two daily newspapers of which one shall be in regional language. In view of the use of the word 'shall' in the aforesaid provision, the publication of the notification in all the prescribed modes is mandatory as has been held by the Supreme Court in 'State of Haryana and Another versus ReghubirDayal, (1995) 1 SCC 133,. It has also been settled by the larger Bench of the Supreme Court in the 'The Madhya Pradesh Housing Board versus Mohd. Shafi, (1992) 2 SCC 168, that if the notification under Section 4 (1) of the Act is not issued in accordance with law or is defective, it would vitiate the proceedings for acquisition of the land. Similarly, 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, the notification and the consequential proceedings for acquiring the land would stand vitiated for non-compliance of the essential conditions of Section 4 (1) of the Act.
16. In connection with the State of Jammu and Kashmir itself, the Supreme Court in 'J&K Housing Board and another versus Kunwar Sanjay Krishan Kaul and others, (2011) 10 SCC 714,'interpreting the 7 OWP No. 879 of 2014 phrase 'Collector shall notify' occurring in Section 4 (1) of the Act held that it makes it clear that the notification is mandatorily required to be published in all the modes prescribed and it has to be strictly complied with. The mere fact that the parties concerned came to know of it or there is service of individual notices would not cure the defect in the publication of the notification as contemplated by law.
17. In view of the aforesaid legal position and the record placed before us, it is clear that even though the petitioners may have been individually served with the contents of the notification under Section 4 of the Act or they may have acquired knowledge through some other source but the notification was not published in the two newspapers and was not even announced by beat of drums or otherwise in the locality.
18. It is important to note that though in Special Deputy Collector, Land Acquisition CMDA (supra), it may have been held that the non- publication of the notification issued under Section 4 (1) of the Act in the newspapers may be fatal to acquisition proceedings but it further observes that the purpose of publication of such a notification in the modes prescribed is twofold. First is to ensure adequate publicity to enable the land owners or the persons interested to file their objections as required under Section 5A of the Act. Secondly, to put the land owners/interested persons or the occupants of the land to notice that the Government officers would be entering upon the land for carrying out activities in connection with the acquisition. The purpose of such a publication stands served if the land owners or the persons interested had notice/knowledge of the acquisition and have filed objections under 8 OWP No. 879 of 2014 Section 5A of the Act in which circumstances non-publication of the notification in one of the appropriate modes would not affect the rights of such land owners/persons interested or prejudice their rights. Accordingly, it was held that whether notification was published in the newspapers having wide circulation or not would make no difference and such persons having notice/knowledge of the notification cannot complain about the publication or the defect in publication of the notification.
19. The aforesaid decision is prior in time than the decision of the Supreme Court rendered in J&K Housing Board and Another (supra), but it appears that the same was not brought to the notice of the court while deciding the above case.
20. In view of what has been said above, it is clear on record that the notification issued under Section 4 (1) of the Act was not published in any newspaper and there is no evidence to show that it was notified in any other manner contemplated in law.
21. The contention that the objections of the petitioners filed under Section 5A of the Act were not considered before issuing the declaration under Section 6 of the Act is bereft of merit. The persons interested admittedly filed objections through Upjeet Singh, petitioner No. 15. Upon filing of the said objections, the Collector after affording hearing though no one appeared, submitted a report for the decision of the Government. The declaration issued under Section 6 of the Act states that the Government is satisfied on the material on record obviously referring to the report of Collector and the documents placed by him, 9 OWP No. 879 of 2014 that the land is needed for public purpose and, as such, directs for its acquisition.
22. Section 5A (2) of the Act provides that the decision of the Government on the objections shall be final. The aforesaid provision has to be read in conjunction with Section 6 of the Act which specifies that when the Government is satisfied after considering the report, if any, made under Section 5A (2) of the Act that the land is needed for public purpose, shall order for the declaration to be made under Section 6 of the Act. In other words, on consideration of the objections received under Section 5A of the Act, a report is to be submitted whereupon on the satisfaction of the Government, a declaration under Section 6 of the Act shall be directed to be made. The satisfaction recorded by the Government by itself is sufficient to mean that the objections have been dealt with whereupon a conscious decision to acquire the land has been taken resulting in the non-acceptance or rejection of the objections. There is no requirement of law that each and every set of objections filed under Section 5A of the Act should be dealt with by the Government individually by a separate or a common order. The satisfaction recorded by the Government to issue a declaration under Section 6 of the Act is sufficient compliance of the provisions of Section 5A of the Act in regard to the objections of the land owners/persons interested.
23. The submission that the final award nowhere states that the objections of the petitioners were considered as provided under Section 5A of the Act is not material, inasmuch as, the award is only supposed 10 OWP No. 879 of 2014 to state the relevant facts in brief and to offer the compensation to the interested persons. The award in no way is required to contain the details with regard to the objections received, hearing and the satisfaction recorded by the Government. It has to concentrate on the determination of the rate/quantum of compensation, measurement of land of various persons and entitlement of persons interested and not on the background facts.
24. In view of the above, the submission that the objections of the petitioners were not considered has no force and stands rejected.
25. Insofar as the non-compliance of Sections 9/9A of the Act is concerned, it only contemplates of issuing notice before taking possession of the land notified to be acquired. The non-issuance of such a notice on or before the time of taking possession does not affect the validity of the acquisition proceedings in any manner. At best it can only lead to a conclusion that the State Authorities have acted in an unjustified manner in taking possession of the acquired land.
26. In view of the above, the non-service of the notice under Sections 9/9A of the Act upon the petitioners cuts no ice.
27. Similarly, non-tendering of 80% of the compensation at the time of taking possession as provided under Section 17A of the Act cannot be treated as fatal to the validity of the acquisition proceedings and is a mere irregularity which can be cured by tendering the requisite amount.
28. This apart, though the petitioners have not categorically pleaded and challenged that the declaration under Section 6 of the Act was not published in the gazette and have not asked for its quashing, 11 OWP No. 879 of 2014 nonetheless, as the record does not contain any gazette notification wherein such a declaration is said to have been published, it can be held that the same was not published in the gazette. Sufficient time was allowed to the counsel for the respondents to complete the record and to procure the gazette notification but in vain. The publication of the declaration issued under Section 6 of the Act in the gazette is a sine qua non and its absence results in vitiating the entire proceedings for the acquisition.
29. In view of the aforesaid facts and circumstances, we are of the opinion that in the first instance, the notification issued under Section 4 of the Act was not published in all the prescribed modes and, secondly, there is no material to establish that the declaration under Section 6 of the Act was published in the gazette. These shortcomings are sufficient to declare the proceedings as bad in law but for the fact that in exercising extra ordinary discretionary jurisdiction, the court is obliged to weigh the national public interest vis-à-vis the right of the private individuals.
30. The Apex Court in 'the Authorized Officer, Thanjavur and another versus S. NaganathaAyyar and others', 1979 (3) SCC 466, observed that procedural irregularities in acquiring the land in the absence of malafidies needs to be overlooked. The development of infrastructure should not be hampered and that scope of judicial review in such matters of land acquisition ought to be very limited. The court must focus its attention more on social and economic justice and should not exercise a lethal blow on the entire acquisition proceedings. 12 OWP No. 879 of 2014
31. In 'Jaipur Metro Rail Corporation Limited versus Alok Kotahwala and others', 2013 0 AIR (CC) 754, it has been opined that projects of national importance such as Metro Rail cannot be put on halt or stand still on technical grounds like ecological balance and the courts have to weigh public interest vis-à-vis the private interest while exercising its discretionary powers. Even if the High Court finds that the acquisition was vitiated on account of noncompliance of some legal requirement, instead of quashing the acquisition proceedings, the person interested may be compensated by awarding lumpsum damages in addition to the compensation admissible to him in law.
32. In 'Ramnikhal N. Butta and another versus State of Maharashtra and others', AIR 1997 SC 1236, it has been observed that power of the High Court under Article 226 is discretionary. It should be exercised in furtherance of interest of justice and not merely on making out of legal points. It was also observed that the High Court may devise ways and methods to adequately compensate the person interested instead of quashing the acquisition proceedings in its entirety.
33. The relevant observations of the Supreme Court appearing in the above case are reproduced herein below: ― "The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point.
And in the matter of land acquisition for public purposes, the interests of justice and the public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in civil suit, granting of injunction or 13 OWP No. 879 of 2014 other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interest. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
34. We are informed that the land notified for acquisition has already been utilized for the purposes of establishing a Central University which is undoubtedly a bonafide public purpose especially in the Union Territory of J&K where massive development for the upliftment of the people at large is very expedient.
35. In view of the peculiar facts and circumstances of the case, as narrated above, we are of the opinion that quashing of the acquisition proceedings would not suffice the purpose as the land has already been utilized and the petitioners can adequately be compensated for the illegal doings of the respondents in some other manner.
14 OWP No. 879 of 2014
36. In the end, Sh. Kohli, senior counsel made a feeble attempt to contend that on account of the enforcement of the 'Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter for short 'the New Act')' which became applicable to the Union Territory of J&K with effect from 31 st October 2019, the petitioners are entitled to compensation in accordance with the provisions of the said Act.
37. The aforesaid submission, though attractive, has no legs to stand, inasmuch as, in the case at hand, the notifications under Sections 4 and 6 of the Land Acquisition Act were issued on 26.12.2011 and 30.01.2012 respectively, the possession of the land was taken over on 16.10.2012 and the final award was made on 22.12.2012 much before the new Act became applicable to the Union Territory of J&K.
38. Section 24 of the New Act provides that where the land acquisition proceedings are initiated under the Act but where no award is made thereunder, all provisions of the New Act relating to determination of the compensation shall apply but where the award has already been made under the provisions of the Act then the proceedings shall continue under the provisions of the previous Act itself as if the said Act has not been repealed. The aforesaid provisions of Section 24 of the New Act clearly establish that it is only where proceedings for acquisition were initiated under the previous Act and no award had been passed thereunder that the provisions of New Act would apply for determination of compensation.
15 OWP No. 879 of 2014
39. Therefore, as in the present case, the proceedings for acquisition were initiated under the previous Act and the award was also made under the said Act, there is no reason to apply the New Act for the determination of the compensation.
40. Accordingly, in the facts and circumstances of the case, as narrated earlier, instead of quashing the proceedings, we direct for the payment of exemplary damages to the petitioners. Since the said exemplary damages are beyond determination by this Court as there is no material in respect thereof, as a token, we quantify the said damages @ Rs. 1,25,000/- per annum from the date of possession, i.e., 16.10.2012 till the date of this judgment, to be paid to the petitioners, within a period of three months from today in addition to the compensation offered to them vide final award dated 22.12.2012. The Commissioner/Secretary to Government, Revenue Department would ensure compliance of the above directions and to submit affidavit of compliance within fifteen days of the expiry of the above period of three months. In the event the aforesaid amount is not paid to the petitioners within the period fixed, interest @ 12% shall be paid on it from the date of expiry of the above time till its payments.
41. The writ petition stands disposed of accordingly with no order as to costs.
(MOHAN LAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU
16.12.2021
Tilak
Whether the order is speaking ? : Yes.
Whether the order is reportable? : Yes.