Balwant Singh And Others vs State Of J&K And Others
2021 Latest Caselaw 1693 j&K

                                                                         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.

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.

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

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

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

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

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

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,

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

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,

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.

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

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.

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.

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.