Gul Mohammad And Ors vs State Of J&K And Ors
2023 Latest Caselaw 1677 j&K

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU


                                                   OWP No. 542/2012 (O&M)


                                                   Reserved on : 10.08.2023
                                                   Pronounced on : 19.08.2023

Gul Mohammad and ors.                                                 .....Petitioner

                        Through: Mr. M. Y. Akhoon, Adv.

                  Vs

State of J&K and ors.                                             ..... Respondents

                        Through:     Ms. Nazia Fazal, Adv. vice
                                     Mrs. Monika Kohli, Sr. AAG for R- 1 to 4.
                                     Mr. Harshwardan Gupta, Adv. for R- 5 and 6.


Coram:     HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE


                                   JUDGMENT

Prayer:

1. Petitioners through the medium of the present petition are calling in

question the notification No. 84/ADC/Rbn of 2011-12 dated 20.10.2011 issued

by respondent No. 4 under Section 4 of the J&K Land Acquisition Act, 1990

(for short, the Act of 1990) and also notification/Declaration No.25/DCR of

2011 dated 26.11.2011 issued under Section 6 of the Act of 1990 by

respondent No. 3, besides challenging the public Notice No. 94/ADC/Rbn of

2011-12 dated 30.11.2011 issued by respondent No. 4 under Sections 9 and 9A

of the Act of 1990.

2. Petitioners have sought declaration that all the proceedings initiated by

the respondents for acquisition of the land in question measuring 01 kanal 17

Marlas falling under Khasra No. 729, land measuring 02 kanals 07 marlas

falling under Khasra no. 729 min land, measuring 02 kanals and 05 marlas

falling under Khasra No. 730, land measuring 09 kanals and 14 marlas falling

under Khasra No. 731min and land measuring 04 marlas (02 marlas each of the

petitioner No. 1 and 2) falling under Khasra no. 3219/683 situated at Village

Khari (Seeran), Tehsil Banihal, District Ramban be declared as non-est in the

eyes of law, besides seeking a writ of Prohibition.

Arguments on behalf of the counsel for the petitioners

3. The short submission which has been advanced by the learned counsel

for the petitioners is that respondents while issuing the impugned notification

under Section 4 of the Act of 1990 has not followed the procedure as

envisaged under the Act of 1990 with particular reference to Section 6 of the

Act of 1990.

4. Learned counsel appearing on behalf of the petitioners vehemently

argued that said declaration in terms of Section 6 of the Act of 1990 shall be

conclusive evidence that the land is needed for public purpose and after

making such declaration the Government may acquire the land in the manner

indicated in the aforesaid statutory provision. Learned counsel has laid much

emphasis on the aforesaid provision of law which in unambiguous terms

provides that it is only the satisfaction of the Government on the receipt of the

report which is required with respect to the acquisition of the land for public

purpose and in the instant case, respondent No. 3 in complete departure of the

mandate procedure of Section 6 of the Land Acquisition Act have issued the

declaration. Learned counsel further submits that satisfaction as envisaged in

the aforesaid statutory provision is only required to be recorded by the

Government and that would mean the erstwhile Government of J&K and not

any other authority/officer at district level like Deputy Commissioner in the

instant case. Learned counsel with a view to substantiate his claim has referred

to the impugned notification dated 25/DCR of 2011 dated 26.11.2011 wherein

it is manifestly clear that Deputy Commissioner, Ramban has recorded his

satisfaction in pursuance of the report furnished by the Collector Land

Acquisition (ADC) Ramban vide No. 1009-14/ACQ/RPLY dated 18.11.2011

with respect to the fact that land is required for public purpose and the said

satisfaction which has been recorded by the Deputy Commissioner is no

satisfaction and thus entire proceedings which have commenced in pursuance

of the impugned notification mentioned (supra) is nullity in the eyes of law.

5. Learned counsel appearing for the petitioners submits that it was

incumbent on the part of the respondents to give wide publicity while issuing

notification under Section 4 of the Act of 1990 and since no wide publicity has

been done, the very purpose of the issuance of the notification under Section 4

get vitiated. Further case of the petitioners is that petitioners have filed

objections under Section 5-A, but the same were not accorded any

consideration and the petitioners have condemned unheard as no opportunity

of being heard has been given to them. Learned counsel further submits that

the question of being heard arises only in case notices as required under Sub

Section 2 of Section 5-A of the Act of 1990 were ever issued. Learned counsel

has relied upon law laid down by the Apex Court in case titled Omkar Nath

Khashoo v. State of J&K and ors. reported as 1981 SriLJ 468 wherein it has been

held that failure on the part of the Collector to comply with the provision by

not giving hearing to the owners in support of their objections renders all

proceedings and subsequent thereto including under Section 6 without

jurisdiction. The relevant paragraph is reproduced as under:

"The law is thus well settled that Sec 5-A is mandatory in character and failure on the part of the Land Acquisition Collector to comply with its provisions by not giving a hearing to the owner in support of his objections renders all proceedings taken subsequent thereto, including the notification issued u/s 6, without jurisdiction. I find no substance in Mr. Maliks contention that the only objection that an owner can take to the acquisition is with regard to the existence of the public purpose. Sec 5-A does not impose any limitation on the right of an owner to raise objection to the intended acquisition. He is entitled to raise any kind of objection, and once he has raised it within the time prescribed, he has a statutory right to be heard in support thereof irrespective of its nature or merit. An owner may, for instance, admit the public purpose and at the same time object to the acquisition of his land by pleading that such a public purpose may be more beneficially or economically met by acquiring some other land or by acquiring only a part of the land sought to be acquired."

Arguments on behalf of the respondents.

6. Respondents, while filing the reply, have taken a stand that only such

cases which involve the compensation of more than one crore has to be

submitted to the competent authority and thus notification which has been

issued by Deputy Commissioner under Section 6, being the competent

authority, is valid in the eyes of law keeping in view the pecuniary jurisdiction

of the case. Respondents with a view to reject the claim of the petitioner have

relied upon SRO 235 dated 11.08.2009 which provides that the Government

has authorized the Financial Commissioner (Revenue), Divisional

Commissioner, and the Deputy Commissioner within their pecuniary

jurisdiction for exercising the power under Sections 6 and 7 of the J&K Land

Acquisition Act.

7. Respondents have taken a specific stand that objections in terms of

Section 5-A of the Act of 1990 have been received in pursuance of issuance of

notification under Section 4(1) of the Act of 1990 and the objections so filed

by the interested persons have been disposed of after hearing the interested

persons. Respondents have further stated that SRO 235 was issued by the

Government keeping in view the speedy acquisition of land for projects of

national importance and payment of compensation without delay.

8. Although the foundation of the petitioners in the present petition is with

respect to the violation of the procedure envisaged under Section 6 of the Act

of 1990 and there is no specific reply in this regard while filing the objections,

however, respondents on the other hand have placed reliance on SRO 235,

which provides the pecuniary jurisdiction to adjudicate the issue by various

officers only.

9. The instant petition was listed before this Court on 16.04.2012 and this

Court has been pleased to direct the parties to maintain the status quo till next

date and the said order continues to be operative till today as per the learned

counsel for the petitioners.

10. This Court vide order dated 22.12.2022 has granted last and final

opportunity to Mr. Harshwardhan Gupta, Advocate for filing reply, failing

which, it was observed that right to file the same shall stand closed. Today,

when the matter was taken up Mr. Gupta learned counsel appearing on behalf

of respondents No. 5 and 6 submits that he want to adopt the reply already

filed on behalf of respondents No. 1 to 4 for respondents 5 and 6 as well. His

statement is taken on record. Ordered accordingly.

Legal Analysis

11. Having heard learned counsel for the parties and perused the material on

record, I am of the opinion that decision of this petition hinges upon the

determination of following questions:

(i) Whether the Deputy Commissioner exercising the powers of a particular district has been delegated with the power to make a declaration under Section 6 of J&K Land Acquisition Act, 1990 which could be conclusive evidence that the land is needed for public purpose.

(ii) Whether the satisfaction in terms of Section 6 of the Act of 1990 is required to be recorded by the Government or by the Deputy Commissioner that a particular land is needed for public purpose as envisaged under Section 6 of the Act of 1990.

12. With a view to appreciate the controversy in question, it would be apt to

reproduce Section 6 of the Act of 1990 and SRO 235 dated 11.08.2009:

"6. Declaration that land is required for public purpose (1) When the Government is satisfied after considering the report, if any, made under Section 5-A, sub section (2) that any particular land is needed for public purpose, a declaration shall be made to that effect under the signature of the Revenue Minister or of some officer duly authorized in this behalf:

[Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid wholly or partly out of the public revenues of some fund controlled or manages by a local authority].

(2) The declaration shall be published in official Gazette, and shall stated the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate areas and where a plan shall have been made of the land, the place where such plan may be inspected.

(3) The said declaration shall be conclusive evidence that land is needed for a public purpose, and after making such declaration the Government may acquire the land in manner hereinafter appearing."

"SRO 235 is reproduced herein below for facility of reference:

"In exercise of the powers conferred by or section 6 and 7 of the Jammu and Kashmir Land Acquisition Act Svt. 1990 (X of 1990) and in supersession of Notification SRO 689 dated 20th December 1984 the Government hereby authorize Financial Commissioner (revenue), Divisional Commissioner and Deputy Commissioner within their pecuniary jurisdiction for purpose of the said section."

13. From a bare perusal of Section 6 of Act of 1990, it is apparently clear

that when the Government is satisfied after considering the report, if any, made

under Section 5-A, Sub Section 2 that any particular land is needed for the

public purpose, a declaration shall be made to that effect under the signature of

the revenue officer or some other officer duly authorized in this behalf and the

said declaration shall be published in the official gazette besides stating the

district or other territorial division in which the land is situated and also the

purpose for which the same is needed, its approximate areas and where a plan

shall have been made of the land, the place where such plan may inspected.

14. A bare perusal of Sub Section 1 of Section 6 of the Act of 1990

emphatically clears that a declaration under Section 6 is to be made when the

Government is satisfied that land is needed for the public purpose and such

declaration was required to be made under the signature of the Revenue

Minister or some other Officer duly authorized in this behalf. In other words,

Sub Section (1) of Section 6 envisages two essential requirements namely (i)

recording of the satisfaction of the Government that the land is needed for the

public purpose; and (ii) publication of such declaration under the signature of

the Revenue Minister or by some other Officer duly authorized in this behalf.

15. From a bare perusal of the notification issued under Section 6, it is

evident that no such satisfaction as envisaged under Section 6 has been

recorded nor there is any reference in the impugned notification. However, the

reference has been made that the satisfaction has been recorded by the Deputy

Commissioner, Ramban on the basis of the report furnished by the Collector

Land Acquisition Ramban which is alien to the procedure prescribed under the

aforesaid statutory provision. Thus, the import of Section 6 is twin fold viz.

recording of the satisfaction has to be by the Government is one part of the

requirement and issuance of the declaration is another part of the statutory

requirement of the provision and the procedure prescribed.

16. The recording of the satisfaction has to be by the Government alone and

not by any other person or authority as the said power has not been delegated

either to the Deputy Commissioner or to the Collector Land Acquisition to

arrive at a satisfaction on behalf of the Government and once, the said

satisfaction has been recorded by the Government, then the issuance of the

notification/declaration can be either by the Revenue Minister or any other

officer authorized to do so.

17. Record reveals that notification under section 6 has been issued by the

Deputy Commissioner, Ramban who has himself recorded the satisfaction

which is not permissible under law and the respondents while filing the

objections have taken a specific stand in paragraph 8 of the reply that insofar

as the issuance of the notification under section 6 by the Deputy Commissioner

is concerned, he has been authorized, as such, to issue such notice vide SRO

235-36 dated 11.08.2009.

18. From a bare perusal of the aforesaid SRO, it is manifestly clear that the

aforesaid SRO authorizes the Financial Commissioners, Divisional

Commissioners and Deputy Commissioners to exercise the power under

Sections 6 and 7 of the Act of 1990 in the context with making a necessary

declaration under Section 6(1) of the Act of 1990, which otherwise is to be

made under the signature of the Revenue Officers or from some other officer

duly authorized in this behalf which, by no stretch imagination, can be

construed that Government has delegated the power to record the satisfaction

as envisaged under Section 6 of the Act of 1990 to the aforesaid officer. A bare

reading of the aforesaid SRO reveals that Deputy Commissioner exercising the

power of a particular district has been delegated with the power of the Revenue

Minister to make a declaration under Section 6 of the Act of 1990, but for all

practical purposes, the power exercisable by the Government for recording

satisfaction as to whether the land is needed for public purpose or not, has not

at all been delegated to any authority. What is mandatory in terms of Section 6

of the Act of 1990 is that satisfaction ought to have been recorded by the

Government and not by the Deputy Commissioner, as it has happened in the

instant case.

19. Now this Court will deal with the questions framed hereinabove.

Question No. (i) Whether the Deputy Commissioner exercising the powers of a particular district has been delegated with the power to make a declaration under Section 6 of J&K Land Acquisition Act, 1990 which could be conclusive evidence that the land is needed for public purpose.

20. In so far as question no. (i) is concerned, this Court is of the view that

SRO 235 simply authorizes the Financial commissioner (Revenue), Divisional

Commissioners and Deputy Commissioners to exercise the power under

Sections 6 and 7 of the Act of 1990 in context with making the declaration

under Section 6(1) of the Act which otherwise is to be made under the

signatures of the Revenue Minister or some other officer duly authorized on

this behalf. It cannot be construed to mean that the Government has also

delegated its power to record satisfaction to the aforesaid officers In fact, it

cannot be so delegated in the absence of any recital to the effect. Thus, in view

of the aforesaid SRO, the Deputy Commissioner has been delegated with the

power of the Revenue Minister to make a declaration under Section 6(1) of the

Act but the power exercisable by the Government for recording satisfaction as

to whether the land is needed for public purpose or not has not been delegated.

Thus, the power to record satisfaction on behalf of the Government is not

delegable to any officer.

21. Accordingly, I hold that Deputy Commissioner exercising the powers of

a particular district has not been delegated with the power to make a

declaration under Section 6 of J&K Land Acquisition Act, 1990 which is

conclusive evidence that the land is needed for public purpose.

Question No. (ii)

Whether the satisfaction in terms of Section 6 of the Act of 1990 is required to be recorded by the Government or by the Deputy Commissioner that a particular land is needed for public purpose as envisaged under Section 6 of the Act of 1990.

22. Insofar as question no. (ii) is concerned, this court is of the view that the

satisfaction, as envisaged in Section 6 of the Act of 1990, is only required to be

recorded by the Government and that would mean the erstwhile Government

of J&K and not any other authority/officer at district level like Deputy

Commissioner in the instant case. The Deputy Commissioner is neither the

Government nor the authority competent to record satisfaction as to whether a

particular land is needed for public purpose or not. It is only when the

Government is satisfied after considering the report that any particular land is

needed for public purpose, a declaration has to be made to that effect under the

signatures of the Revenue Minister or of some office duly authorized in this

behalf.

23. It is pertinent to mention that the said declaration is conclusive evidence

that the land is needed for public purpose and after making such declaration

the Government may acquire the land in the manner indicated in the aforesaid

statutory provision. Thus, it is only the satisfaction of the Government on the

receipt of the report which is required with respect to the acquisition of the

land for public purpose and in the instant case, respondent No. 3 in complete

departure of the mandate procedure of Section 6 of the land Acquisition Act

has issued the declaration.

24. The record in the instant case reveals that satisfaction has been recorded

by the concerned Deputy Commissioner who has issued the impugned

notification and thus, the action of the concerned Deputy Commissioner is in

flagrant violation of the mandatory procedure as envisaged under Section 6 of

the Land Acquisition Act.

25. Accordingly, I hold that satisfaction in terms of Section 6 of the Act of

1990 is required to be recorded by the Government and not by the Deputy

Commissioner that a particular land is needed for public purpose as envisaged

under Section 6 of the Act of 1990.

26. Even otherwise also, the issue with respect to the recording of the

satisfaction and the issuance of the notification under Section 6 is no more res

integra in light of the law laid down by the Division Bench of this Court in

OWP No. 1329/2012 titled, Virender Pandoh v. State of J&K and ors.

[decided on 08.09.2021]. The relevant paras are reproduced as under:

"17. In view of the aforesaid SRO, the Deputy Commissioner has been delegated with the power of the Revenue Minister to make a declaration under Section 6(1) of the Act but the power exercisable by the Government for recording satisfaction as to whether the land is needed for public purpose or not has not been delegated obviously as it is not delegable. The satisfaction in this regard has to be of the Government. The record produced before us does not contain any document which records the satisfaction of the Government in this regard.

25.The record does not contain any document recording the satisfaction of either the Governor or the Cabinet and that the satisfaction recorded by the Deputy

Commissioner in the light of SRO 235 is no satisfaction on the part of the Government.

26.In view of the aforesaid facts and circumstances, as declaration/notification under Sub Section 1 of Section 6 of the Act has been issued by the Deputy Commissioner without there being any satisfaction recorded by the State Government that the land is needed for public purpose, we find it difficult to sustain the said declaration."

27. Again, the Division Bench of this Court in OWP No. 816/2012 titled,

Bashir Ahmed Bhat and others vs. State and others [decided on 02.12.2022]

has observed as under:-

"Obviously, the District Collector, Srinagar, is not the Government either under Jammu and Kashmir General Clauses Act, Svt. 1997, nor could it be so construed in terms of the business Rules framed by the Government under Section 43 of the Constitution of Jammu and Kashmir, as it was applicable at the relevant point of time. Without going much deeper into the issue, suffice is to say that the Deputy Commissioner/District Collector is neither the Government nor the authority competent to record the satisfaction as to whether a particular land is needed for public purpose or not."

Conclusion

28. For the foregoing reasons, I find merit in this petition, and the same is

accordingly, allowed. The impugned notification No. 84/ADC/Rbn of 2011-12

dated 20.10.2011 issued by respondent No. 4 under section 4 of the J&K Land

Acquisition Act as well as Notification/Declaration No. 25/DCR of 2011 dated

26.11.2011 issued by respondent No. 3 under section 6 and public notice No.

94/ADC/Rbn of 2011-12 dated 30.11.2011 issued by respondent No. 4 under

Section 9 and 9A of the J&K Land Acquisition Act are quashed.

29. As a necessary corollary, all the subsequent proceedings for acquisition

undertaken by the respondents are also declared non-est in the eye of law, and

therefore quashed. The quashment of acquisition proceedings initiated under

the Act of 1990 by this Court shall not come in the way of the respondents to

acquire the subject land, if the same is needed for the public purpose by

following strictly the provisions of the Right to Fair Compensation and

Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013,

which is in vogue.

30. The writ petition shall stand disposed of in the manner indicated above.

Jammu                                                      (Wasim Sadiq Nargal)
19.08.2023                                                    Judge
Paramjeet




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