Jammu & Kashmir High Court
Kanwar Sanjay Kishan Kaul And Ors. vs State Of J And K And Ors. on 3 September, 2007
Equivalent citations: 2008(1)JKJ271, AIR 2008 JAMMU AND KASHMIR 68, 2009 (1) AKAR (NOC) 97 (J.&K.) = AIR 2008 JAMMU AND KASHMIR 68, 2009 AIHC (NOC) 47 (J. & K.) = AIR 2008 JAMMU & KASHMIR 68
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. Petitioners through the medium of present writ petition are seeking quashing of Notification No. HB/LA/LME-07 of 2003 dated 17th of May'03, issued under Section 4 of the Land Acquisition Act, 1990, (here-in-after called the Act) and the notification/declaration made under Sections 6 and 9 of the Act in respect of land and Orchards comprised in Khasra Nos. mentioned in the writ petition measuring 185 kanals and 5 marlas situated in the Revenue Estate of village Ferozpur, Tehsil Tangmarg, District Baramulla.
2. The Collector, Land Acquisition (LMEO), Jammu and Kashmir Housing Board, Jammu, in exercise of powers vested in him under Sub section (1) of Section 4 of the Act, issued the notification impugned stating therein that land measuring 181 kanals 19 marlas is needed for public purpose namely for the development of a Housing Colony at village Ferozpur, Tehsil Tangmarg, district Baramulla, by the Jammu and Kashmir Housing Board, Jammu. It was mentioned in the notification that objections, if any, regarding the acquisition of the said land can be preferred before the said officer within fifteen days from the date of publication of the said notification. But subsequently, a corrigendum was issued on 9th of June'03 with regard to acquiring of some additional land also measuring 3 kanals 15 marlas situated in the same village and it was stated in the corrigendum that objections, if any, may be filed in the office of the Deputy General Manager, Housing Unit No. II, Sringar, Chhanpura, District Budgam, within fifteen days of the issuance of the said corrigendum during office hours on any working day.
3. Petitioners have impugned the aforesaid notification on the grounds that even though the same was published in the Government gazette but no other requirement like giving of wide publicity as indicated in the rules was followed, and therefore, there was no occasion for the petitioners to know about the issuance of notification impugned. It is stated that the petitioners came to know about the issuance of the said notification from their personal sources. It is further stated that there is complete departure, non-compliance and violation of the mandatory provisions of Section 5A and other provisions of the Act. It is stated that the said property is an ancestral property of the petitioners and the same includes an orchard apart from a house constructed on the part thereof and there are large number of fruit trees; that the position of the land is sloppy and in the shape of terrace and therefore, it cannot be used for developing the residential colony; that the policy of acquisition of land which is in the shape of Orchard is contrary to the. Policy of the State; that the physical location of the Orchard is about one kilometer away from Tangmarg and abutting forest land and there is no direct excess to the Orchard except by crossing over the land of the other persons; that there exists large chunk of vacant land belonging to other persons also but the respondents with malafide intention at the behest of political persons have notified the land and orchard belonging to the petitioners for acquisition; that the objections in terms of Section 5A of the Act were sent by the registered post on 25th of July'03 but the same were not considered on the ground that these have been received after the due date; that notice in terms of Sections 5 and 5A of the Act indicates addresses of the petitioners as Lal Mandi, Srinagar, whereas the petitioners were actually residing at Delhi and only an intimation to the Chowkidars was made the basis for adjudication of the objections in terms of Section 5A. It is stated that the Chowkidars have also made a statement that they are not aware as to whether the owners are prepared to part with their property. It is further stated that the report of the Collector to the Financial Commissioner dated 22nd of July'03 shows that notice dated 4th of June'03 is stated to have been issued to the land owners requiring them to remain present at Ferozpur Tangmarg on 16th of June'03 but there is no evidence on record to show that any such notice was ever dispatched to the petitioners at the address of New Delhi where the petitioners reside. It is thus stated that the whole exercise was done by the respondents in violation of the provisions of the Act and even there is no compliance of principles of natural justice.
4. On notice, respondent-Board filed counter pleading therein that notice under Section 5A of the Act was issued to the land owners vide Office No. HB/LMEO/83-85 dated 4th June'03, requiring the petitioners to remain present at Ferozpur Tangmarg on 16th of Aug'03 but they chose not to appear and the case was thereafter recommended to the Government for issuance of the Declaration under Sections 6, 7 and 17 of the Act as there was an urgency for acquisition of land in question for development of a Housing Colony. It is stated that the Government has made a Declaration and it was directed to proceed under Section 17 and 17A of the Act and as per Rs. 63 of the Land Acquisition Rules, a tentative award of Rs. 2,77,31,901/- has been submitted to the District Collector (Deputy Commissioner), Baramulla. It is stated that as the interested persons did not choose to receive the compensation, reference application under Sections 17-A and 32 of the Act was filed on 3rd of Sept'04 and a cheque amounting to Rs. 2,34,71,151/- was deposited with the learned District Judge, Baramulla, with a request for disbursing the same to the actual land owners whose land stands acquired. It is stated that the Tehsildar Tangmarg vide his Office No. 508-12/QQ dated 3rd of Sept'04 has handed over the possession of the land in question to the Deputy General Manager, Housing Unit No. II, Srinagar, and the said possession has been taken over after following due process of law.
5. Mr. D.C. Raina, learned Senior counsel, appearing for the petitioners submitted that the proceedings initiated by the Collector for the acquisition of land are vitiated because the Collector has not followed the mandatory provisions of Section 5 of the Act. He contended that after the issuance of Notice under Section 4(1)(a) of the Act, it is mandatory on the part of the Collector to issue a notice to the interested persons to file objections. It is further submitted that the petitioners have migrated from the valley where the land in question is situated due to militancy which commenced in the year 1988-89, and the respondents by misuse of power have issued the notification impugned and deprived the petitioners of their right to property. It is stated that neither the objections filed by the petitioners were considered by the Collector nor any hearing as required under the Act and Rules was given to the petitioners. It is submitted that on this score alone, the proceedings stand vitiated. In support of his submissions, reliance has been placed on the judgments of the Apex Court reported as , Hindustan Petroleum Corporation Ltd v. Darius Shapur Chenai and Ors. and , Competent Authority v. Barangore Jute Factory and Ors.
6. On the other hand, Mr. NA Choudhary, learned Counsel for respondents submitted that for the acquisition of the land in question, the notification was issued in the Government gazette and also published in two newspapers namely Greater Kailash and Himalayan Mail and the notices were also affixed at the convenient places in the locality through the Tehsildar concerned, local Panchayat and the Patwaries. It is stated that even the statement of the chowkidars engaged by the petitioners was also recorded. It is stated that the petitioners submitted their objections to notice issued under Section 5 of the Act from Delhi which have been signed on 24th of July'03 and the same were received by the Collector on 30th of July'03 and the same being time barred were not considered as the case had already been submitted to the Financial Commissioner for seeking declaration under Sections 6,7 and 17 of the Act. It is stated that declaration under Section 17 of the Act has been made and the Collector has been empowered to take possession from the Revenue department. It is stated that the Collector has also made compliance of Section 9 and 9-A of the Act and the declaration as indicated above under Section 17 of the Act has been issued by the Collector. It is stated that 50% of the compensation has been deposited with the learned District Judge, Baramulla, for disbursing the same to the actual land owners. It is thus stated that no judicial review is warranted at this stage as the land stands already handed over to the intending department by the revenue authorities. Reliance in this regard has been placed on , lshwarlal Girdharilal Joshi v. State of Gujarat and Anr. AIR 1966 Punjab 59, Murari Lal Gupta v. The State of Punjab and Anr. and , Jaykrishna Basu and Anr. v. State of West Bengal and Ors. It is further submitted that even notice need not to be given to the owners that possession would be taken on a particular date. In support of this submission, the learned Counsel for respondent has placed reliance on Narayan Bhagde v. MD Bhagwat and Ors. It is stated that the petitioners with ulterior motive have filed the present writ petition so that the respondents are not in a position to part with the land.
7. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the record.
8. Before considering the rival contentions of the parties, it will be appropriate to notice the relevant provisions of the Act under which the land is sought to be acquired.
9. Section 4 deals with the preliminary investigation and powers of the officers thereupon, Section 5 deals with the payment for damage and Section 5A deals with the hearing of objections. These Sections in-so-far-as relevant are being reproduced below:
4. Publication of preliminary notification and powers of officers thereupon.- Whenever land in any locality is needed or is likely to be needed for any public purpose the Collector shall notify it-
(a) through a public notice to be affixed at convenient places in the said locality and shall also cause it to be known by beat of drum and through the local Panchayats and Patwaries;
(b) in the Government Gazette; and
(c) in two daily newspapers having largest circulation in the said locality of which at least one shall be in the regional language.
...
5. Payment for damage--The officer so authorized shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and, in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the Provincial Revenue authority within thirty days of its being pronounced, whereupon, the decision of that officer shall be final.
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 (xxx) 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 authorized 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 purpose 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.
10. Section 5A of the Act gives a valuable right to an interested person whose land is sought to be acquired to file objections, if any, and also affording him a personal opportunity of being heard either in person or by a pleader or by a person authorized by him. It is only after considering the objections filed by the interested person or giving him a personal hearing and after making such further inquiry, if any, the officer concerned i.e. Collector can submit the case to the Government for its decision.
11. In Hindustan Petroleum Corporation Ltd's case (supra), their Lordships of the Apex Court have held as under:
It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision making process must not commit any misdirection in law. It is also not in dispute that Section 5A of the Act confers a valuable important right and having regard to the provisions contained in Article 300A of the Constitution it has been held to be akin to a fundamental right.
11. In paragraphs 15 and 16 of the aforesaid judgment, it has further been observed as under:
Section 5A of the Act is in two parts. Upon receipt of objections, the Collector is required to make such further enquiry as he may think necessary whereupon he must submit a report to the appropriate Government in respect of the land which is the subject matter of notification under Section 4(1) of the Act. The said report would also contain recommendations on the objections filed by the owner of the land. He is required to forward the records of the proceedings held by him together with the report. On receipt of such a report together with the records of the case, the Government is to render a decision thereupon. It is now well settled in view of a catena of decisions that the declaration made under Section 6 of the Act need not contain any reason.
16. However, considerations of the objections by the owner of the land and the acceptance of the recommendations by the Government, it is trite, must precede a proper application of mind on the part of the Government....
12. In the present case, it is to be seen whether there is compliance of Section 5A of the Act.
The Collector, J & K Housing Board, Jammu, issued notices under Sections 5 and 5A of the Act, inviting objections with regard to acquiring of the land at Village Ferozpur, Tehsil Tangmarg for developing a Housing Colony. The notices are alleged to have been issued to the interested persons on 4th of June'03, for their appearance on 16th of June'03 at 1.30 pm at Ferozpur Tangmarg, failing which action under rules was to be taken. Copy of these notices were forwarded to Tehsildar Tangmarg for effecting service through special messenger/Process server and to return the same after service.
13. Thereafter, the copy of the notices, as per the record, seems to have been received by Tehsildar Gulmarg. On 6th of June'03, Tehsildar Gulmarg directed the process server to get the service effected on the persons concerned with the assistance of Numberdar and Chowkidar and return the same to the office after effecting service. The concerned Process Server thereafter reported that the notices have been affixed at the concerned place namely Tangmarg Ferozpura and Chandipora in presence of Numberdar and Chowkidar whose signatures have been obtained. The Tehsildar Gulmarg under his office dispatch No. 423/0...dt. l6th of June'03, forwarded the served notices to the office of J & K Housing Board, Jammu, for further necessary action.
14. As noticed above, the notices were forwarded to Tehsildar Tangmarg for effecting service on the interested persons through special messenger/process server. In the record, however, there is no endorsement of Tehsildar Tangmarg that he received the said notices and forwarded the same to Tehsildar Gulmarg. How the notices reached the office of Tehsildar Gulmarg has remained a mystery. In these notices, as noticed above, the address of the petitioners was given as Lal Mandi Srinagar. There is no report to the effect that the said notices were served or affixed at the above address given in the notices. As per the report of the Process Server, the notices were affixed at Tangmarg Ferozpura and Chandipora.
15. The Collector, Housing Board, Jammu, is alleged to have recorded a joint statement of the chowkidars namely Ghulam Mohi-u-Din Rishi, S/o Habibullah Rishi, R/o Tarin Tangmarg, Ghulam Ah.Rishi, S/o Mohd Ramzan, R/o Tarin Tangmarg and Aijaz Ahmad Rishi, S/o Gh. Qadir Rishi, R/o Tarin Tangmarg. In their statement they have deposed that the petitioner Manmohan Kishan Koul has engaged them as Chowkidars to look after the land and orchard and they are doing this job for the last so many years. They receive monthly wages from the said petitioner. At present the owners of the property are living at Delhi and they have been informed on telephone that the Government wants to acquire the property. They, however, do not know as to whether the owners of the property want to sell the said property or not.
16. The Collector of the Housing Board, Jammu, in its letter dt. 22nd of July'03, (Annexure R.3 with the objections/counter) addressed to the Financial Commissioner, Revenue, J & K Govt, Srinagar, has observed as under:
...Notices under Section 5 & 5A was issued vide this office No. HB/LMEO/83-85 dated 04.06.2003 to all the land owners to the concerned Department to remain present at Ferozpur on 16.06.2003 with a registered letter to the owners who have been reported to have been residing at Delhi H. No. 39, Rajpora, Delhi. No owner was present on spot except paid labourers attended and stated before me that they have informed the concerned owners on telephone that their proprietary land is being acquired. The absence of the owners it seems is clear indication that they are not willing to part away with the land. The willful absence for attendance is best known to the owners. However, photo copy of Receipt telegram is also enclosed for favour of kind perusal....
17. A perusal of the above communication of the Collector, J & K Housing Board, Jammu, shows that he was aware of the fact that the permanent address of the petitioners is Lal Mandi, Srinagar and they at the time of issuing of notices were living at Delhi but the said officer did not send the notices to the petitioners at the address of Delhi nor as noticed above, the notices were affixed at Lal Mandi Srinagar and these were affixed only at Tangmarg Ferozpura and Chandipora to show that there is compliance of Sections 5 and 5A of the Act. If the petitioners were not available at the address given in the notice, then the proclamation was to be affixed in that very locality where the petitioners reside, which was not done. Thus from the entire record, it is clear that the respondents have fabricated the same to show that the service has been effected upon the petitioners.
18. For the reasons mentioned above, this petition is allowed. The proceedings initiated by the respondents under Section 5 and 5A of the Act as also the subsequent proceedings shall stand vitiated. The petitioners shall be free to file their objections afresh within fifteen days of the receipt of the copy of this order. The Collector, J & K Housing Board, Jammu, will consider these objections and shall also give personal hearing to the petitioners at its Camp office in Jammu, and proceed further in accordance with the law. Disposed of accordingly. No order as to costs.