Jammu & Kashmir High Court - Srinagar Bench
Gazanfar Ali (Aged 68 Years) vs Union Territory Of Jammu & Kashmir ... on 9 May, 2025
Bench: Sanjeev Kumar, Vinod Chatterji Koul
1
Sr. No. 2
Suppl. List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 29.04.2025
Pronounced on: 09.05.2025
LPA No. 262/2023
CM No. 7457/2024
Gazanfar Ali (Aged 68 years)
S/o Ghulam Mohi ud din
R/o Zakoora, Srinagar, Kashmir
...APPELLANT
Through: - Mr. G.A. Lone, Advocate with Mr. Mujeeb Andrabi, Advocate
Vs.
1. Union Territory of Jammu & Kashmir through
Commissioner Secretary to Government, Revenue
Department, Civil Secretariat, Srinagar/Jammu
2. Divisional Commissioner, Kashmir, Srinagar
3. Deputy Commissioner/District Collector, Srinagar
4. Collector/Assistant Commissioner (Revenue), Srinagar
5. Custodian General, J&K, Srinagar
6. Custodian, Evacuee Property Department, Kmr. Sgr.
7. Tehsildar (North), Srinagar
8. Station House Officer (SHO), Police Station Zakoora,Sgr.
9. University of Kashmir through its Registrar, Srinagar
...RESPONDENTS
Through:- Mr. Mohsin Qadri, Sr. AAG with
Ms. Maha Majeed, Assisting counsel
Mr. Syed Faisal Qadri, Sr. Advocate with
Mr. Sikand er Hayat, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
2
JUDGMENT
Per: Sanjeev Kumar-J
1. This intra-court appeal filed by the appellant arises out of an
order and judgment dated 02.12.2023 passed by the learned
Single Judge of this Court ["the Writ Court"] in OWP no. 882/2017
titled Gazanfar Ali v. State of J&K and others, whereby the writ
petition filed by the appellant herein challenging the notification
dated 25.05.2017 issued under Section 4(1) of the Jammu and
Kashmir Land Acquisition Act ["the Act"] has been dismissed.
2. Briefly stating the facts leading to the filing of this appeal are
that a piece of land measuring 15 Kanals 13 Marlas in Khasra no.
1355/919 and 5 Kanals 8 Marlas in Khasra No. 1356/9420 situate
at Zakura in Srinagar ["the subject land"] was sought to be acquired
for respondent no. 9 for construction of Basic Science College of
Excellence. On the request of respondent no. 9, respondent no. 4
issued a notification under Section 4(1) of the Act for acquisition of
the subject land.
3. Feeling aggrieved, the appellant filed OWP no. 882/2017 to
throw challenge to the said notification. The challenge to the
notification by the appellant was premised on the ground that the
subject land was an evacue property leased out to the appellant by
respondent no. 5, the Custodian General, Jammu and Kashmir,
Srinagar. The lease was to subsist for a period of fiftyfive (55)
years. The appellant, after seeking permission from respondent no.
5 for raising the construction of the School and after obtaining
building permission from the Srinagar Municipal Corporation,
started raising the construction of the school building. While the
construction was going on, the notification impugned in the writ
petition came to be issued by respondent no. 4. The impugned
notification issued under Section 4(1) of the Act was called in
question by the appellant before the writ court on the following
grounds:-
(i) that respondent no. 4 who has issued the impugned
notification is only an Assistant Commissioner (Revenue)
and, therefore, not "the Collector" as defined under the Act;
(ii) that the subject land is an evacue property and, therefore,
cannot be made subject matter of acquisition under the Act;
(iii) that the impugned notification has not been published in the
manner prescribed under Section 4 of the Act and, therefore
all proceedings taken for initiating the process of acquisition
are vitiated;
(iv) that the impugned notification is actuated by malafide
consideration, in that, the Indenting Department i.e. the
University of Kashmir is already in possession of 300 Kanals
of land and that there is more custodian land available in the
vicinity of the University Campus which can be utilized for
setting up of a College;
(v) that with the coming into force of the Jammu and Kashmir
Re-organisation Act, 2019, an extension of right to fair
compensation and transparency in land acquisition,
rehabilitation and Re-settlement Act, 2013 ["the Act of 2013"]
to the Union Territory of J&K, a fresh process of acquisition is
required to be initiated under the new Act.
4. The writ petition was contested by both i.e. the Indenting
Department i.e., the University of Kashmir as also the other
respondents including the Collector, by filing separate objections.
5. The writ court considered the rival contentions in the light of
material on record including the record of land acquisition
proceedings and came to the conclusion that the writ petition was
devoid of any merit and deserved to be dismissed. The writ court
considered all the issues raised by the learned counsel on behalf of
the appellant. The writ court considered the grounds of challenge
and answered the issues raised in the following manner:-
(i) that vide SRO 213 dated 16.05.1966, the powers of
Collector for the purposes of land acquisition have been
vested on all territorial Assistant Commissioners and the
said notification has been issued by the Government in
exercise of powers under sub-section (4) of Section 6 of
the Jammu and Kashmir Land Revenue Act. Similarly, the
Government of Jammu and Kashmir has in exercise of its
power under sub-section (5-A) of Section 6 of the Jammu
and Kashmir Land Revenue Act has issued SRO 461
dated 19.11.1985 conferring powers of the Collector on in
as many as 22 Designated Officers which includes
Assistant Commissioner (Revenue), Srinagar. The writ
court, thus, concluded that respondent no. 4 was vested
with the powers of the Collector under the Act to initiate
acquisition proceedings and, therefore, the impugned
notification issued by respondent no. 4 was within its
jurisdiction.
(ii) that the property of an evacuee vested in the Custodian is
not immune or exempted from acquisition under the Act.
To come to this conclusion, the writ court relied upon the
Saraswati Devi v. Delhi Development Authority and others,
(2013) 3 SCC 571 and Delhi Administration v. Madan Lal
Nangia (2003) 10 SCC 321.
(iii) that though the publication of Notification in the manner
provided under Section 4(1) of the Act is mandatory, yet
no grievance can be raised with regard to the validity of
such notification by the interested person who has
sufficient notice of the publication of the notification and
has responded to the said notification by filing his
objections thereto. The writ court found that the appellant
being fully aware of Section 4(1) notification had submitted
his objections and, therefore, cannot throw challenge to
the notification on the ground that the same was not duly
published;
(iv) that it is not for the appellant to dictate to the Indenting
Department as to which land is more suitable for
establishing the College. The University has also denied
that the land to which reference is made by the appellant
in the petition is adjacent to the University Campus. The
writ court, thus, concluded that the question as to whether
the land which is subject matter of acquisition was suitable
for the needs of the respondent-University cannot be
made subject matter of determination in the proceedings
under Article 226 of the Constitution of India. The Court
noted that the appellant had already filed objections to the
impugned land acquisition notification and, therefore, the
said aspect could be considered by the Collector at the
time of deciding the objections of the petitioner.
(v) Relying upon the judgment of the Hon'ble Supreme Court
in Indore Development Authority v. Manoharlal and others,
(2020) 8 SCC 129, the writ court held that once the
authorities are disabled from taking a process to its logical
conclusion by the stay order passed by a Court at the
instance of the litigant, such litigant cannot be permitted to
take advantage of a situation which is his own creation.
The writ court, thus, found that the acquisition proceedings
could not be concluded because of the interim stay
obtained by the appellant by filing the writ petition.
6. The writ court, after discussing elaborately the rival
contentions on the issues raised, concluded that the appellant had
no case to maintain the petition and, accordingly, vide impugned
order and judgment, dismissed the petition.
7. Before us, Mr. Lone, learned counsel appearing on behalf of
the appellants, re-iterated his arguments which the writ court has
very elaborately considered in the impugned judgment. However,
Mr. Lone very fairly conceded the decision of writ court on Issue
Nos. (1), (2) and (5) and restricted his arguments only to the Issue
Nos. (3) and (4).
8. Having heard learned counsel for the parties and perused the
material on record, we are of the considered opinion that the Issue
Nos. (3) and (4), which were vehmently agitated by Mr. Lone
before us, have been very correctly decided by the writ court.
9. So far as Issue No. (3) is concerned, the same pertains to
the validity of notification issued by respondent no. 4 under Section
4(1) of the Act. The notification is attacked by the appellant on the
ground that the publication in terms of sub-section (1) of Section 4
of the Act has not been made strictly in the manner provided in the
said sub-section. It was argued that respondent no. 4 was under an
obligation to publish the notification in the locality where the land
was situated by affixing a public notice at convenient places in the
locality. The notice was also required to be published in two Daily
Newspapers having largest circulation in the locality, out of which,
atleast, one has to be in the regional language. Besides the above
modes of publication, the notice was also required to be published
in the official gazette. The notice was, it is contended, required to
be published by following all the three modes and such
requirement of sub-section (1) of Section 4 of the Act was
mandatory in nature. It was, thus, argued that failure of respondent
no. 4 to publish the notice under Section 4 (1) of the Act in the
manner provided therein has rendered the notice null and void in
the eye of law. Strong reliance is placed by Mr. Lone on the
judgment of Khub Chand and others v. State of Rajasthan and
others, AIR 1967 SC 1074, J&K Housing Board and another
v.Kunwar Sanjay Krishan Kaul and others, (2011) 10 SCC 714
and Farooq Ahmad Band and ors. v. State of J&K and ors,
2017 (1) JKJ 552 [HC].
10. The writ court has elaborately discussed this issue in the light
of law laid down by the Hon'ble Supreme Court and has arrived at
a correct conclusion that the appellant being aware of the
impugned notification and having filed objections thereto cannot be
permitted to find fault with the impugned notification on the ground
that the same has not been published by following all the modes
prescribed in sub-section (1) of Section 4 of the Act.
11. While we see no reason to take a view different from the one
taken by the writ court, yet to supplement what has been held by
the writ court, we would like to invite reference to a judgment of
Hon'ble Supreme Court in the case of Special Deputy Collector,
Land Acquisition, CMDA v. J. Sivaprakasam and others, (2011)
1 SCC 330. In the aforesaid case, which was decided by Hon'ble
Supreme Court on 18.11.2010, i.e. immediately after the decision
of Kunwar Sanjay Krishan Koul, the Hon'ble Supreme Court held
that total non-compliance with the requirements of Section 4(1) of
the Act cannot effect the validity of preliminary notification or the
consequent proceedings where the person aggrieved was well
aware of the issuance of notification and had responded to the said
notification by filing his objections. It is trite that object of issuing a
notification under Section 4 of the Act is three fold; firstly, it is the
public announcement by the Government and a public notice by
the Collector to the effect that the land is needed or likely to be
needed by the Government for the public purpose mentioned
therein; secondly, it authorizes the Officer either generally or
specially empowered by the Government in this behalf and for his
servant and workmen to enter upon and do all such acts as
enumerated in sub-section (2) of Section 4 of the Act and; thirdly,
to notify to the interested persons about the proposal for acquisition
so that they become aware of such proposal and are given
sufficient opportunity to object and respond to the proposal by filing
objections.
12. In the instant case, there is no dispute with regard to the fact
that the impugned notice issued under Section 4(1) of the Act was
published in two Daily Newspapers i.e., "Daily Greater Kashmir"
and Urdu "Daily Aftab", both dated 02.06.2017. The notification has
also been affixed in the concerned locality. It is true that the
notification as mandated by Section 4(1)(b) of the Act has not been
published in the regional language and that may be pointed as a
shortcoming in the due publication of the notification. However, in
view of the fact that the appellant had got the knowledge of
publication of the notice well in time and had also submitted his
objections to the proposal for acquisition of the subject land, it does
not lie in the mouth of the appellant to contend that he has been
seriously prejudiced by the failure of respondent no. 4 to publish a
notice in the regional language. It is also not the case of the
appellant that he can understand only the regional language and
cannot read and write or understand English or Urdu. As is held by
the Hon'ble Supreme Court in the case of J. Sivaprakasam, the
acquiring authority need not prove actual notice of the proposal to
acquire under Section 4 of the Act on the person challenging the
acquisition. Such notice can also be by way of implied notice or
constructive notice. What is held by the Hon'ble supreme Court in
paragraphs 31 and 36 is reproduced hereunder:-
"31. The acquiring authority need not prove actual notice of
the proposal to acquire under Section 4(1) of the Act, to the
person challenging the acquisition,. As the purpose of
publication of public notice proved in Section 4(1) of the Act
is to give notice of the proposal of acquisition to the persons
concerned, such notice can also be by way of implied notice
or constructive notice. For this purpose, we may refer to the
difference between actual, implied and constructive notice:
1.When notice is directly served upon a party in a
formal manner or when it is received personally by him,
there is actual notice.
2. If from the facts it can be inferred that a party knew
aboaut the subject-matter of the notice, knowledge is
imputed by implied notice. For example, if the purpose
of the notice is to require a party to appear before an
authority on a particular date, even though such a
notice is not personally served on him, if the person
appears before the authority on that date or participates
in the subsequent proceedings, then the person can be
said to have implied notice.
3. Notice arising by presumption of law from the
existence of certain specific facts and circumstances is
constructive or deemed notice. For example, any
person purchasing or obtaining a transfer of an
immovable property is deemed to have notice of all
transactions relating to such property effected by
registered instruments till the date of his acquisition. Or,
where the stature provides for publication of the
notification relating to a proposed acquisition of lands in
the gazette and newspapers and by causing public
notice of the substance of the notification at convenient
places in the locality but does not provide for actual
direct notice, then such provision provides for
constructive notice; and on fulfillment of those
requirements, all persons interested in the lands
proposed for acquisition are deemed to have notice of
the proposal regarding acquisition.
36. It is significant to note that there is no averment in the
writ petition that the respondents were not aware of the
proposed acquisition. It is evident that they were aware of the
notification. It is also inconceivable that Respondents 5 to 11
who knew about the proposed acquisition would not have
informed Respondents 1 to 4 about the proposed acquisition.
Be that as it may. Therefore, even if the publication in two
regional language newspapers is considered to be not in
compliance with the requirements of Section 4(1), it cannot
affect the validity of the preliminary notification or the
consequential proceedings in regard to Survey Nos. 186/1
and 186/2."
13. This judgment of the Hon'ble Supreme Court is delivered
after the judgment in Kunwar Sanjay Krishan Koul's case. Both
the judgments are by the Benches of co-equal strength. Kunwar
Sanjay Krishan Koul's judgment is otherwise distinguishable on
facts. As is rightly held by the writ court that in Kunwar Sanjay
Krishan Koul, the corrigendum issued for enlarging the area of
acquisition was not published at all. The land owners were the
residents of Delhi and no effort had been made by the Collector to
send them notices. Otherwise also, the issue as to whether a
person who is well aware of the issuance of notification under
Section 4(1) of the Act and has also objected to the proposal by
filing objections can be permitted to challenge the preliminary
notification on the ground that the same has not been duly
published, was not the subject matter of determination in the case
of Sanjay Krishan Koul. The judgment of the Supreme Court in
Khub Chand (supra) also does not deal with the aforesaid issue.
Khub Chand judgment is only an authority on the proposition that
the modes of publication provided under Section 4(1) of the Act are
mandatory in nature. Otherwise also, the judgment in the case of J.
Sivaprakasam is later in point of time and shall hold the field.
14. In view of the clear law laid down by the Hon'ble Supreme
Court, there is hardly any need to invite reference to the Division
Bench judgment of this Court rendered in the case of Farooq
Ahmad Band (supra) which was strongly relied upon by Mr. Lone.
In the aforesaid case, the Division Bench of this Court did refer to
the judgment of the Hon'ble Supreme Court in case of J.
Sivaprakasam but did rely on the same for no obvious reasons.
The Court distinguished the aforesaid judgment, by holding that in
the case of J. Sivaprakasam, the preliminary notification was
published in two daily newspapers whereas in the case before the
Division Bench, the notification was published only in one
newspaper.
15. Viewed from any angle, we are of the considered opinion that
the appellant who had proper notice of the preliminary notification
issued by respondent no. 4 and had objected to the proposal of
acquisition by filing his objections has suffered no prejudice by
failure of the Collector to publish the notification, in a Daily
newspaper in the regional language. One of the objectives of
notifying the proposal of acquisition under Section 4(1) of the Act
i.e. to allow the interested person to object to the acquisition,
16. So far as Issue no. 4 is concerned, the writ court has very
aptly dealt with the same. The choice of land to be acquired and its
suitability to meet the needs of Indenting Department cannot be
dictated by the interested person nor the same can be made
subject matter of determination in the proceedings under Article
226 of the Constitution of India. That apart, in terms of Section
(5)(A) of the Act, the appellant being an interested person is
entitled to raise objections to the proposal for acquisition of the
subject land. As a matter of fact, the appellant has already filed his
objections opposing the proposal for acquisition of the subject land
which objections are required to be considered and decided by the
Collector in accordance with law. Interestingly, the appellant
without waiting for the adjudication of his objections to the
proposed acquisition, approached this Court and got the entire
proceedings stayed. For this reason also, we find no substance in
the argument of Mr. Lone that in the face of availability of sufficient
land in the vicinity of University, no public purpose would be served
by acquiring the subject land where there is already a school
imparting education to the children in existence. This aspect, as is
claimed, has already been highlighted by the appellant in his
objections and we are sure that the same would be addressed by
the Collector concerned on its merit.
17. No other point was urged.
18. For the foregoing reasons, we find no merit in this appeal.
The same is, accordingly, dismissed. The respondent no. 4 shall
proceed to acquire the subject land in accordance with law.
(VINOD CHATTERJI KOUL) (SANJEEV KUMAR)
JUDGE JUDGE
Srinagar,
09.05.2025
Yasmeen, Secy.
Whether judgment is reportable: Yes
