Mohd. Ayoub & Others vs State Of J&K & Others
2021 Latest Caselaw 1098 j&K

      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU


                                             Reserved on : 31.08.2021
                                             Pronounced on : 14.09.2021


                                                 OWP No.391/2019
                                                 CM Nos.1890/2021,
                                                 1926/2019 (1/2019)


Mohd. Ayoub & others                                          .....Petitioner


                        Through: Mr. H.C. Jalmeria, Advocate
               versus

State of J&K & others                                        ..... Respondent(s)

                        Through: Mr. S.S. Nanda, Sr. AAG

          HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
Coram:
          HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE


                               JUDGMENT

Per Tashi-J

1. Petitioners through the medium of this writ petition are seeking a writ in

the nature of certiorari for quashing Notification No.AC/LA/573-76 dated

01.09.2017 issued by the Assistant Commissioner (Rev), Collector Land

Acquisition, Rajouri - respondent No.3 herein, under Section 4(1) of the Land

Acquisition Act 1990 (Svt) and also the record of Notification

No.AC/LA/1299-1302 dated 02.03.2018 issued by the Assistant Commissioner

(Rev), Collector Land Acquisition, Rajouri under Sections 9 & 9A of the Land

Acquisition Act.

2 OWP 391/2021

2. The facts-in-brief, as averred in the writ petition, are that the petitioners

are owners of agricultural land measuring 75 kanals, 17 marlas and 06 sarsai

comprising under Khasra Nos.29, 30, 33, 42, 43, 44, 57, 58, 59 and 88 situate

in Village Muradpur, Tehsil & District Rajouri, which is the main source of

their livelihood and their families. It is averred that some of the petitioners are

refugees from Pak Occupied Area of the State since 1947 and they have been

allotted land in this village for their survival. It is also averred that some of the

petitioners have also constructed residential houses on the said land. Further, it

is averred that respondent No.3 without prior information to the petitioners

herein issued Notification No.AC/LA/573-76 dated 01.09.2017 under Section

4(1) of the Land Acquisition Act 1990 (Svt) declaring therein that the

aforementioned land is required by the Law Department for public purpose,

i.e., for construction of District Court Complex at Rajouri. By way of said

notification, respondent No.3 invited objections within 15 days from the date

of said notification.

3. It is averred that though the respondents did not publish the said

notification in any newspaper, yet the petitioners herein filed their objections

and also recorded their statements in support of their objections when they

were called for hearing in the office of respondent No.3. It is averred that

without going through the objections of petitioners and the concern raised by

them, respondent No.3 issued Notification No.AC/LA/1299-1302 dated

02.03.2018, which too was not published in any newspaper. Though, the

petitioners herein filed their objections on 11.08.2018, but the respondents did

not accede to their request.

3 OWP 391/2021

4. Learned counsel appearing for petitioners submitted that the petitioners

have small agricultural land which is the main source of their livelihood. He

further argued that the acquisition proceedings have been initiated without

adopting due procedure established by law, rather it amounts to forcible

eviction of petitioners from their agricultural land; neither adequate

opportunity was provided to the petitioners to file their objections nor

objections have been given due consideration nor consent of owners was

obtained.

5. Objections have been filed on behalf of respondent No.3 contending

therein that notice under Section 4(1) of the Land Acquisition Act was

published in the daily leading news paper Udhan dated 12.09.2017. Not only

this, the acquisition proceedings had been widely publicized through the beat

of drum and copy of the notice under Section 4(1) of Land Acquisition Act was

also pasted on the spot through Tehsildar concerned, even copy of said notice

was also served upon the interested persons. After the service of said notice,

the Tehsildar concerned acknowledged the same and returned vide

No.OQ/1398 dated 26.09.2017. Further, it is averred that in response to the

said notification, 16 interested persons (land owners) filed their respective

objections in the office of respondent No.3. They also recorded their

statements in the office of respondent No.3. Thus, it is averred that sufficient

opportunity of being heard was given to the petitioners. It is further averred

that the Government of Jammu and Kashmir after thoroughly examining the

case disposed of the objections filed by the petitioners thereby issuing

Notification No.56-Rev(LAJ) of 2018 dated 09.02.2018 and, accordingly, 4 OWP 391/2021

issued declaration under section 06 and directive under section 7 of the J&K

Land Acquisition Act for acquiring the aforementioned land for public

purpose, i.e., for construction of District Court Complex, Rajouri. Thereafter, it

is averred, that respondent No.3 issued Notification No. AC/LA/1299-1302

dated 02.03.2018 under Sections 9 & 9A of the Land Acquisition Act calling

upon objections from interested persons and department. Since no objection

was received during the stipulated time period, final award for the land

measuring 75 kanals 17 marlas and 06 sarsai was issued by respondent No.3

vide No.AC/LA/659 dated 02.11.2018 and No.AC/LA/942-46 dated

27.03.2019 for an amount of Rs.7,89,75,580/- by adopting a rate of Rs.09.05

lac per kanal plus 15% jabrana.

6. Thus, learned senior AAG stated that due procedure as mandated under

the J&K Land Acquisition Act was followed and sufficient opportunity of

being heard was given to the petitioners before acquiring the land-in-question.

7. Heard learned counsel appearing for the parties, considered their rival

contentions and perused the file.

8. The main bone of contention of present controversy, as projected by the

writ petitioners before this Court, is that the land-in-question is the main source

of their livelihood and that there was non-compliance of the provisions of

sections 4(1), 6 and 9 of the of the Land Acquisition Act 1990 (Svt)

(hereinafter referred to as the Act) regarding publication of notifications in the

newspapers. In short, the petitioners claim that the respondents have failed to

satisfy the provisions of Land Acquisition Act, 1990 (hereinafter, for short, the

Act).

5 OWP 391/2021

9. The facts which are not in dispute in the present case are that on

01.09.2017 notification was issued u/s 4(1) of the Act for acquisition of

aforementioned land. The aforesaid notification was followed by a notification

u/s 6 and directives under section 7 of the Act was 09.02.2018. Thereafter,

notification dated 02.03.2018 under Sections 9 & 9A of the Act came to be

issued by respondent No.3. Thereafter, final award came to be issued on

26.03.2019 and compensation assessed was Rs.7,89,75,580/- at the rate of

Rs.9.05 lacs per kanal plus 15% jabrana.

10. The petitioners though claim that the respondents without prior

information to the petitioners herein issued notification under Section 4(1) of

the Act on 01.09.2017, which too was not published in any newspaper,

however, as per own admission of petitioners in the writ petition that in

response to the said notification they filed their objections; meaning thereby

the petitioners were well aware of the notification, they not only filed

objections to the said notification but also recorded their statements in support

of their objections. The file also reveals that the respondents published the

notice under Section 4(1) of the Act in Udhan news paper in its edition dated

12.09.2017. Further, it is the specific stand of respondents that Tehsildar

concerned served the copies of notice upon the interested persons for filing

objections, if any, and in response to said notification 16 interested persons

(land owners) filed their respective objections in the office of respondent No.3.

Not only this, they also recorded their statements. The annexure annexed with

the objections reveal that the respondents dealt with the objections filed by the

interested persons/land owners in detail and then disposed of the same.

However, the file reveals that when no objections were received from the 6 OWP 391/2021

interested persons in response to notification dated 02.03.2018 issued under

Sections 9 & 9A of the Act, final award came to be passed on 26.03.2019.

11. The intent of issuance of notification under section 4 is to make the

people aware about the intention of the Government to acquire the land. Such a

notice can either be actual, implied or constructive. From the facts and

circumstances, inference of implied or constructive notice can be drawn,

hence, the purpose of section 4 is fulfilled. Even if the argument of learned

counsel for the petitioners that the notifications were not published in absolute

conformity with the provisions of the Act are considered, the same cannot be

held to be tenable in view of the judgments of Hon‟ble the Supreme Court

in Ramniklal N. Bhutta and another vs. State of Maharashtra and others; AIR

1997 SC 1236; and Jaipur Metro Rail Corporation Limited vs. Alok Kotalwala

and others, AIR 2013 SC 754, wherein the Court has opined that such projects

should not be halted as the same would be against the larger public interest and

the constitutional courts should weigh public interest vis-à-vis private interest

while exercising its discretion, even if minor discrepancies in following the

procedure is observed. Relevant extracts from the judgments of Hon'ble the

Supreme Court referred (supra) are reproduced hereunder:

i) Ramniklal N. Bhutta's case:

"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognized on all hands that the infrastructure necessary for sustaining such a pace of 7 OWP 391/2021

progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernization. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in Courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. 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 interest coalesce. They are very often one and the same. Even in a 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-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even by 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 lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceeding is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. 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."

ii) Jaipur Metro Rail Corporation Limited's case:

"31. With respect to ecological balance, there has to be sustainable development and such projects of immense public importance cannot he halted. It is not the case that requisite permissions from the Central Government and the State Government have not been obtained, thus, objections were flimsy. In other petitions also pertaining to the same Project, this Court has held that such project of immense public importance should not be put to halt. Thus, flimsy and untenable objections were raised, which have been rightly rejected after due application of mind.

xxxx

48. On merits, we find the order of interim stay passed by the single Bench to be untenable, thus, we have no hesitation in setting aside 8 OWP 391/2021

the same. Suffice it to observe that in such cases of public importance of Metro Rail Project, there should not be any interim stay, rather an effort should be made to decide the matter finally at an early date. Staying the land acquisition proceedings is not appropriate and would be against the larger public interest involved in such projects. Thus, relying upon the decision in the case of Ramniklal N. Bhutta, (AIR 1997 SC 1236) (supra), we hold that in the matter of immense public importance like the present one, the power to grant interim stay under Article 226 of the Constitution should not be exercised in the normal course."

12. In the conspectus of what has been observed herein above, it is

unambiguously clear that the land in question has been acquired and is

essential to fulfill the public purpose, namely construction of District Court

Complex at Rajouri. The same assumes significance as it is essential for the

overall infrastructural development of judiciary. The concept of public purpose

cannot remain static for all the times. While interpreting the same, the horizons

of the definition needs to be expanded and a broad and overall view has to be

taken so as to ensure maximum benefit to public at large. The scope of the

same cannot be narrowed down by inclining towards the individual interest

only, as the same has to give way to the larger public interest. The procedural

irregularities as has been pointed out by the petitioners, in the absence of any

mala fide being pointed out, certainly needs to be overlooked and are

insufficient to convince this Court to stall the infrastructural development

process. The scope of judicial review in such like cases is limited and in land

acquisition cases, the Court must focus its attention on the social and economic

justice as well. While examining these questions of public importance, the

Courts, especially the Higher Courts, cannot afford to act as mere umpires. The

reference in this regard can be made to the principle laid down by the Hon‟ble 9 OWP 391/2021

Apex Court in Authorised Officer, Thanjavur and another v. S. Naganatha

Ayyar and others, reported as(1979)3 SCC 466.

13. Supplementing the view taken supra, reference to the observations of the

Apex Court in Pratibha Nema and ors. vs. State of M.P. and ors. reported as

AIR 2003 SC 3140, reproduced hereunder, would be relevant.

"When no prejudice has been demonstrated nor could be reasonably inferred, it would be unjust and inappropriate to strike down the Notification under Section 4(1) on the basis of a nebulous plea, in exercise of writ jurisdiction under Article 226. Even assuming that there is some ambiguity in particularizing the public purpose and the possibility of doubt cannot be ruled out, the constitutional courts in exercise of jurisdiction under Article 226 or 136 should not, as a matter of course, deal a lethal blow to the entire proceedings based on the theoretical or hypothetical grievance of the petitioner. It would be sound exercise of discretion to intervene when a real and substantial grievance is made out, the non-redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose, especially, in a matter like this where it is possible to take two views, is not something which affects the jurisdiction and it would, therefore, be proper to bear in mind the considerations of prejudice and injustice."

14. Therefore, in view of peculiar facts of this case, the judgments cited by

the learned counsel for petitioner has no significance.

15. As regards Circular No.05-JK(GAD) of 2019 dated 28.11.2019 regarding

using of Government land as a first resort for setting up of new projects, we

make it clear that the acquisition proceedings commenced in July, 2017 and

final award came to be issued on 26.03.2019, i.e., much before the issuance of

said circular. Therefore, the said circular has no bearing on the present matter.

16. If seen in the light of enunciation of Law as referred to above, the

petitioners have not been able to make out a case for interference by this Court 10 OWP 391/2021

as large public interest has to be given preference over the private interest in

the matter of acquisition of land for development of infrastructural projects.

Accordingly, we deem it proper to dismiss the writ petition. Dismissed as such

along with connected CMs. Interim direction shall stand vacated forthwith.

              Jammu:                           (Puneet Gupta)              (Tashi Rabstan)
              14.09.2021                           Judge                       Judge
              (Anil Sanhotra)




                                       Whether the order is reportable ?        Yes
                                       Whether the order is speaking ?          Yes




ANIL SANHOTRA
2021.09.17 17:03
I attest to the accuracy and
integrity of this document