Chaman Kumar And Others vs Union Territory Of J&K And Others
2021 Latest Caselaw 516 j&K

Whether approved for reporting? Yes


               HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU


Reserved on   : 29.01.2021
Pronounced on : 27.04.2021
CJ Court


Case: LPA No. 157 of 2020
(Through Video Conferencing)


Chaman Kumar and Others                                           ...Appellant(s)
                                 Through: Mr. O.P.Thakur, Sr. Advocate with
                                          Mr. R.K.S.Thakur, Advocate

                         v/s
Union Territory of J&K and Others                              .... Respondent(s)
                                  Through: Mr. S.S.Nanda, Sr. AAG



CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE


                                 JUDGMENT

PANKAJ MITHAL, CJ:

1. The instant Letters Patent Appeal (LPA) has been preferred by the

appellants against the Judgment and order dated 28.12.2020 passed by the

learned Single Judge of this Court dismissing their writ petition under Article

226 of the Constitution of India challenging the land acquisition proceedings.

2. The land in dispute which is under acquisition is about 03 kanals

08 marlas of Khasra No. 134 min of village Jhajjar Kotli in District Jammu.

3. One Mr. Kakru owned about 06 kanals and 14 marlas of land. On

his death, the said land was inherited by his son Dharam Chand and two

daughters. The said Dharam Chand and his successors were running a Dhaba

over it for many years. A part of this land measuring about 03 kanals and 6

marlas including the land of the Dhaba was acquired. The remaining land

continued to be owned and possessed by the petitioners and it is said that the

petitioner Nos.1 and 2 established a new Dhaba over the part of the remaining

land.

4. Now, this remaining land has been notified to be acquired vide

Notifications dated 30.04.2016 and 27.01.2017 issued under Sections 4 and 6

respectively of the Jammu and Kashmir Land Acquisition Act, SVT., 1990 (for

short 'the Act') which are in pari meteria with the provisions of the land

Acquisition Act., 1894.

5. An award in respect of the said acquisition has been passed on

10.07.2017 under Section 11 of the Act.

6. The petitioners by invoking the writ jurisdiction not only

challenged the above notifications and the award but also notices issued under

Section 9/9-A of the Act as well as the subsequent notice dated 07.02.2020 by

which they were directed to remove their structures and to vacate the land as

the same has already been acquired.

7. In assailing the aforesaid acquisition proceedings, on behalf of the

petitioners, it was contended that their running business of Dhaba is not to be

uprooted. The land is not being acquired for the public purpose but for the

purposes of a Company, National Highway Authority of India but without

following the provisions of Chapter VII of the Act. The Notification under

Section 4 of the Act has not been published in a proper manner as

contemplated under the Act and that the newspapers in which the publication is

alleged to have been made were of English only and were not having wide

circulation in the locality. This has deprived the petitioners from filing

objections under Section 5-A of the Act.

8. The Writ Court dismissed the writ petition holding that the

acquisition is for providing 'way side amenities' namely, of parking trucks

along the four laning National Highway and as such is for public purpose. The

public purpose has to be given precedence over private interest. The acquisition

is not for any Company. The purpose of the publication of the Notification

under Section 4 is to give notice of the proposal of acquisition to the affected

persons and that such a notice can either be constructive or by way of

implication and even if it is accepted for a moment that the notification was not

published in conformity with the provisions of the Act, it is not necessary for

the court to interfere with the acquisition which is for the public purpose.

9. The learned Single Judge in observing as above, cited various

precedents from the decisions of the Supreme Court and concluded his findings

accordingly.

10. We heard Shri O.P. Thakur, Senior counsel assisted by Shri

R.K.S.Thakur, learned counsel for the appellants and Shri S.S.Nanda, Senior

Additional Advocate General for respondent Nos. 1 to 5.

11. Shri Thakur has attacked the impugned judgment basically on

three counts. First, the acquisition has been done at the behest of the National

Highway Authority of India and as such is for the purposes of the Company.

Accordingly, acquisition ought to have been under Chapter VII of the Act. In

fact he even contended that the land for National Highway Authority of India

should have been acquired under the special Act, i.e., National Highway

Authority Act., 1988 itself. Secondly, the Notification under Section 4 of the

Act was not published in a proper mode as contemplated under the Act and that

the newspapers in which the said notification is alleged to have been published

had no wide circulation in the locality. There was no publication of notification

in any newspaper of vernacular language. Thus, the acquisition stands vitiated.

Lastly, he submitted that the present Dhaba of the appellants in existence has

not been notified to have been acquired but even then the directions have been

issued for preparing a supplementary award thereof.

12. Shri Nanda, on the other hand, contends that there is no error or

illegality in the impugned Judgment passed by the learned Single Judge. The

land has been acquired in a proper and legal manner for a public purpose.

There is hardly any scope for interference with it in appeal when the writ court

has declined to exercise its discretionary jurisdiction in the matter and the said

decision is on legal principles.

13. The land in dispute has been acquired on the indent of the Project

Director, National Highway Authority of India for the public purpose for

providing road side amenities (Truck parking) along with four laning of the

National Highway. The purpose of providing road side amenities (Truck

parking) on the four laning National Highway is certainly a public purpose and,

as such, the State can very well acquire the said land in exercise of its eminent

domain. The land has not been acquired for the National Highway Authority

of India but by the State Government for providing road side amenities (Truck

parking) by the side of the National Highway. The National Highway

Authority of India is only the working agency with whom the acquired land

would not vest permanently and, as such, it is not an acquisition for National

Highway authority or for any Company but by the State on the request of the

Project Director, National Highway Authority of India.

14. In view of the above, the learned Single Judge relying upon the

decision of the Supreme Court in Nand Kishore Gupta and Others v. State of

U.P. and Others, AIR 2010 SC 3654, has rightly held that the land has not

been acquired for the company and, therefore, the provisions of Chapter VII of

the Act would not come into play.

15. The submission that the land ought to have been acquired under

the provisions of the National Highway Authority of India Act., 1988 is bereft

of merit for the simple reason that the land has been acquired for the benefit of

the State and not for the purposes of the National Highway Authority of India.

Moreover, if two remedies are available for acquisition, it is for the authority

concerned to choose one of the remedies. Accordingly, if the State has chosen

to acquire the land under the general provisions of the Land Acquisition Act

instead of choosing to go under the special enactment, there is no illegality in

it.

16. One of the submissions that the land of the Dhaba has not been

notified for acquisition but even then award in respect of it is likely to be

pronounced is completely mis-conceived, inasmuch as, till date no award has

been made in respect of the structure of the Dhaba and as per the appellants

themselves, the structure of Dhaba has not been acquired. Simply if the

structure of Dhaba has not been physically acquired, it would not render

acquisition bad in law, as acquisition of land would entail acquisition of

superstructure for which appellants may be entitled to compensation.

17. The last and the basic submission of Sh. Thakur is regarding the

non-publication of the notification issued under Section 4 of the Act in the

manner prescribed.

18. The relevant part of the aforesaid Section 4 of the Act reads as under :-

"4. Publication of preliminary notification and powers of officers thereupon.--

(1) Whenever land in any locality is needed or is likely to be needed for any public purpose the Collector shall notify it--

(a) through a public notice to be affixed at convenient places in the said locality and shall also cause it to be known by beat of drum and through the local Panchayats and Patwaries;

(b) in two daily newspapers having largest circulation in the said locality of which at least one shall be in the regional language.‖

19. The aforesaid provision clearly stipulates that the Collector shall notify

the notification through the public notice to be affixed at convenient places in

the locality, shall also cause it to be known by beat of drums, local Panchayats

and Patwaries and by publication in two daily newspapers having largest

circulation in the said locality of which at least one shall be in regional

language.

20. It may be useful to mention that the purpose of publication of the

aforesaid notification is to call upon the persons interested to file their

objections against the proposal to acquire the land and if after consideration of

said objections, the Government decides to acquire it, the final declaration

under Section 6 of the Act is made to acquire the same unless the filing of

objections are dispensed with by invoking the urgency clause.

21. The filing of objections under Section 5-A of the Act to the

proposed acquisition is in consonance with the principles of natural justice and

Article 300-A of the Constitution of India which recognizes the right to

property not only a constitutional right but akin to a fundamental right and

above all a basic human right. It is, therefore, necessary to hear the persons

interested before they are deprived of their above valuable right. The non-

publication of the notification proposing to acquire the land would certainly

affect the above right of the persons interested and, as such, its publication

acquires immense importance.

22. A reading of the aforesaid provision would reveal that the

legislature has used the word 'shall' for the manner of publication of the

notification. Therefore, the publication of the notification through affixation at

a convenient place in the locality, by beat of drums and two daily newspapers

having largest circulation of which one at least should be of the regional

language, is mandatory and sine qua non for proceedings ahead with the

acquisition proceedings.

23. The appellants in paragraph 9 of the writ petition have

categorically stated that the appellants came to know that the copy of the

notification issued under Section 4 of the Act was sent to the Joint Director

Information, Jammu for publication in two of the leading English newspapers

with the request to send the copy of the newspapers on publication. The Joint

Director Information, Jammu on inquiry being made by the appellants

informed that the said notification has been published on 03.05.2017 in three

newspapers 'State Times', 'Jammu Jotting' and 'News Now'. All the said

newspapers are in english and, as such, the notification has not been published

in the regional language. The said newspapers have no wide circulation in the

locality and at least two of them 'Jammu Jotting' and 'News Now' are not

even having wide circulation in the city of Jammu also.

24. It has also been stated that in fact the notification has not been

published in any newspaper or in the Government Gazette. Thus the appellants

have been deprived of their right to file objections under Section 5-A of the

Act.

25. The submission is that in view of the above averments, the court

could not have proceeded to dismiss the petition without calling for the

response from the respondents. In the absence of the counter-affidavit, the

averments made by the appellants to the above effect remained uncontroverted

and, as such, they ought to have been treated as true and correct rendering the

notification to be bad in law.

26. A perusal of the award reveals that it simply mentions that wide

publicity was given to the notification issued under Section 4 of the Act but it

fails to point out how and in what manner the wide publicity was given and in

which newspapers the notification was published.

27. In such a scenario, the averments made by the appellants remained

uncontroverted. No material or even the newspapers were brought on record

to prove due publication of the notification. Thus, in the absence of any

material showing due publication of the said notification, it is but natural to

conclude that the notification was not properly published in any of the modes

prescribed.

28. It is also well recognised that if a thing is required to be done by

the statute in a particular way, it has to be done in the manner so provided or

not at all.

29. Nazir Ahmad versus Emperor (No.2), (1936) 38 BOMLR 987,

highlights the doctrine as applied in Taylor versus Taylor (1875) 1 Ch. D. 426,

431 that where a power is given to do a certain thing in a certain way, the thing

must be done in that way or not at all as other methods of performance are

necessarily forbidden meaning thereby that the notification under Section 4(1)

of the Act has to be published in the manners prescribed and not otherwise.

30. 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.

31. 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.

32. 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 three requirements of

modes of notice are mandatory and 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 in the manner prescribed only. The fact that the parties

concerned were aware of the acquisition proceedings or there is service of

individual notices makes no difference.

33. In State of Haryana and another versus Raghubir Dayal, 1995

SCC(1) 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.

34. In view of the above discussion, the notifications dated

30.04.2016 and 27.01.2017 issued under Sections 4 and 6 of the Land

Acquisition Act are certainly in violation of the statutory provision and the

entire acquisition proceedings consequent to them would be bad but for the

involvement of the public interest.

35. It is pertinent to mention here that the land was acquired in 2017

and the award was passed on 10.07.2017. The possession was also taken and

probably it has also been utilized for the public purpose.

36. In view of the above facts and the finding that the notification was

not duly published in accordance with law, the court has been called upon to

examine to what extent it can interfere in the matter in exercise of its extra

ordinary jurisdiction and, if so, the relief it can grant to the appellants.

37. It is settled that the forum of writ petition is not as a matter of

right or an appellate forum but is an extra ordinary remedy provided to check

miscarriage of justice which has to be exercised sparingly and at the discretion

of the court. It is not necessary to be exercised in each and every case of

infringement of a right. The courts in exercise of its discretionary jurisdiction

has to balance the competing interests of the parties in such a way that public

interest prevails over the private one in granting relief thereof.

38. It is also equally settled in law that the acquisition of land for

public purpose if challenged by any one person only or by the owner of a small

piece of the acquired land is not sufficient to vitiate the entire proceedings of

acquisition more particularly where there are no malafidies.

39. The Apex Court in 'the Authorized Officer, Thanjavur and

another versus S. Naganatha Ayyar 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 and the court must focus its attention more on social

and economic justice and should not exercise a lethal blow on the entire

acquisition proceedings.

40. 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.

41. The relevant observations of the Supreme Court 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. Ant 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 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.‖

42. It is also important to note that the appellate court should always be slow

in interfering with the decision of the court of first instance. More so, where it

refuses to exercise its discretionary jurisdiction and such a refusal is based

upon sound legal principles.

43. We, in this appeal, have not been shown that the writ court has acted in

an arbitrary manner in passing the impugned order or that its decision is not

legally sound.

44. Thus, applying the above principles of law laid down by the Apex Court

to the facts and circumstances of the case, even though we have found that the

notification under Section 4 of the Act was not in consonance with the

provisions of the Act, we do not intend to quash the same and instead provide

that ends of justice would be sub-served if the appellants are provided by way

of damages additional compensation which may be worked out as on the date

of this judgment in accordance with the provisions of the Act by making a

fresh award in respect of the land of the appellants only within a period of three

months and to pay the compensation accordingly after adjusting the amount

already paid within a further period of one month and keeping it open for the

appellants to avail the remedies available to them in law for seeking

enhancement, if necessary.

45. The appeal is allowed partly as above.

1.

                    (RAJNESH OSWAL)                          (PANKAJ MITHAL)
                              JUDGE                            CHIEF JUSTICE
Jammu
 27.04.2021
Tilak
                          Whether the order is speaking?     Yes
                          Whether the order is reportable?   Yes