J & K Housing
Board & ANR. Vs. Kunwar Sanjay Krishan Kaul & Ors.
J U D G M E N T
P. Sathasivam, J.
appeals are directed against the judgment and order dated 21.05.2009 passed by the
High Court of Jammu and Kashmir at Jammu in LPAOW No. 60 of 2007 CMP No. 91 of 2007
whereby the High Court dismissed the said appeal filed by the J & K Housing
Board - the appellants herein.
(a) On 17.05.2003, the
Collector, Land Acquisition (Land Management Estates Officer), Jammu and Kashmir
Housing Board, Jammu (in short `the Board') issued a Notification under Section
4 (1) of the Jammu & Kashmir Land Acquisition Act, 1990 (hereinafter referred
to as `the State Act') notifying the land measuring 181 kanals 19 marlas was
needed for the public purpose by the Board, namely, for "development of
Housing Colony" at Village Ferozpur, Tehsil Tangmarg, District Baramulla and
calling for objections, if any, within 15 days from the date of publication of the
The aforesaid notification
was published in the Himalayan Mail newspaper on 21.05.2003 and in the Greater Kashmir
newspaper on 22.05.2003 in the State of Jammu and Kashmir. Again, on 04.06.2003,
the said notification was published in two daily newspapers. On the very same day,
notice under Sections 5 and 5-A of the State Act was issued to all land owners
for hearing of objections vide Office Order No. HB/LMEO/83-85 directing them to
remain present at the spot on 16.06.2003 at 12.30 p.m.
On 09.06.2003, the Collector
ssued an Addendum vide office order No. HB/LMEO/87-96 for acquiring additional land
of 3 kanals 15 marlas. On 11.06.2003, a corrigendum was issued with regard to
the said Addendum stating therein that the measurement of land sought to be
acquired was not correctly calculated and it may be read as 185 kanals 05 marlas
instead of 185 kanals 14 marlas and objections, if any, may be filed within 15 days
of the issuance of the said corrigendum.
(b) On 16.06.2003, none
of the owners was present on the spot except some paid labourers/Chowkidars who
were looking after the said land. On 24.06.2003, the Collector, LMEO submitted
a letter to the Deputy Commissioner (District Collector), Baramulla vide office
letter No. HB/LMEO/120-22 for recommending the case to higher authorities for issuance
of declaration under Sections 6, 7 and 17 of the State Act. On 03.07.2003, the Deputy
Commissioner directed the Collector to take action in accordance with the Revenue
Department Circular No. 13/8-REV/(LAK)99/2000 dated 23.05.2000.
On 16.07.2003, the
respondents sent a telegram to the Tehsildar, Tangmarg, who in turn, forwarded
the same to the office of the Collector on 19.07.2003. In accordance with the
directions of the Deputy Commissioner (District Collector), the Collector, vide
letter No. HB/LEO/158-60 dated 22.07.2003, requested the Financial Commissioner
(Revenue) J & K Government to recommend the case to higher authorities for issuance
of declaration under Sections 6 , 7 and 17 of the State Act.
(c) By Notification No.
199 RD/04 dated 15.01.2004, a declaration was made under Section 6 of the State
Act to the effect that the land mentioned in the notification was needed for
public purpose. Further, in pursuance of Section 17 of the State Act, the
Collector was directed to take possession of the aforesaid land subject to
completion of all formalities including those under Sections 9(2) and 17-A of
the State Act and Rule 63 of the Land Acquisition Rules (in short `the Rules')
and to finalize the proceedings immediately.
By letter dated
17.01.2004, all the land owners were again informed by the Collector about the acquisition
of the land under Sections 9 and 9-A of the State Act and requesting them to remain
present on the spot on 06.02.2004 at 11 a.m.
(d) On 30.01.2004, a letter
was received from the land owners requesting the Collector for fixing a fresh date
after due notice to them. A draft award dated 28.07.2004 was passed by the
office of the Collector assessing the total value of the land structure and the
fruit trees at Rs.2,77,31,901/-. Notification No. HB/CLA/214-17 issued under
Section 17-A of the Act was published in the Himalayan Mail Daily on
20.08.2004, in Greater Kashmir Daily on 23.08.2004 and in Greater `Alsafa'
Daily on 28.08.2004 mentioning the names of all the respondents.
(e) Challenging the notifications,
on 30.08.2004, the respondents filed Original Writ Petition being OWP No. 941
of 2004 before the High Court of Jammu & Kashmir at Jammu. Learned single Judge
of the High Court, vide order dated 03.09.2007, allowed the petition of the respondents
herein with liberty to file their objections afresh within 15 days of the
receipt of the copy of the said order.
respondents-land owners did not choose to receive the compensation and a
reference under Sections 17-A and 32 of the State Act was filed on 03.09.2004 in
the Court of District and Sessions Judge, Baramulla, a cheque bearing No. 0148568
dated 03.09.2004 amounting to Rs.2,34,71,151/- (80% of the total assessed
compensation) was deposited with the District Judge, Baramulla with a request
for disbursement of the said amount among the actual and real owners of the acquired
land. On the very same day, i.e., on 03.09.2004, the possession of the land was
taken over by the representatives of Deputy General Manager, Housing Unit-II,
(f) Challenging the
said order of the learned single Judge, the appellants herein filed LPAOW No. 60
of 2007 before the Division Bench of the High Court. The Division Bench, by
impugned judgment dated 21.05.2009, dismissed the said appeal. (g) Aggrieved by
the said judgment, the appellants have filed these appeals by way of special
leave before this Court.
Mr. Rajiv Dhawan, learned senior counsel for the Board-appellants herein and Mr.
K.K. Venugopal, learned senior counsel for the contesting respondents herein.
Rajiv Dhawan, learned senior counsel appearing for the Board, after taking us through
the entire acquisition proceedings and the relevant provisions of the State Act
submitted that inasmuch as all the procedures had been meticulously followed by
the Board and possession was also taken before filing of the writ petition, the
order passed by the learned single Judge quashing the acquisition proceedings
from the stage of proceedings under Sections 5 and 5-A of the State Act and also
subsequent proceedings as confirmed by the Division Bench are not sustainable and
prayed for interference by this Court.
the other hand, Mr. K.K. Venugopal, learned senior counsel appearing for the respondents/land
owners, by drawing our attention to various mandatory provisions of the State
Act and the J & K Housing Board Act, 1976, submitted that inasmuch as the
appellants failed to follow the mandatory provisions of the State Act, the orders
passed by the learned single Judge and the Division Bench are fully justified
and no interference is called for by this Court.
have carefully considered the rival contentions, orders of the High Court and
perused the relevant provisions and also various notifications/orders etc.
considering the rival contentions, it is useful to refer the relevant provisions
of the State Act which are applicable to the State of Jammu & Kashmir. Part
II of the State Act deals with Acquisition. The relevant provisions are as
under : "4. Publication of preliminary notification and powers of officers
thereupon - Whenever land in any locality is needed or is likely to be needed for
any public pupose 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
(b) in the Government
(c) in two daily
newspapers having largest circulation in the said locality of which at least
one shall be in the regional language. (2) ....." "5. Payment for
damage - The officers so authorized shall at the time of such entry pay or
tender payment for all necessary damage to be done as aforesaid, and in case of
dispute as to the sufficiency of the amount so paid or tendered, he shall at
once refer the dispute to the Provincial Revenue authority within thirty days of
its being pronounced, whereupon, the decision of that officer shall be final."
"5-A. Hearing of objections. –
Any person interested
in any land which has been notified under section 4, sub- section (1), as being
needed or likely to be needed for a public purpose may, within fifteen days after
such land is notified in the manner prescribed in clause (a) of sub-section (1)
of Section 4 as being needed or likely to be needed for a public purpose, subject
to the acquisition of the land or of any land in the locality, as the case may
(2) Every objection under
sub-section (1) shall be made to the Collector in writing, and the collector
shall give the objector an opportunity of being heard either in person or by pleader
or by a person authorized by him and shall, after hearing all such objections and
after making such further inquiry, if any, as he thinks necessary, submit the
case for the decision of the Government, together with the record of the proceedings
held by him and a report containing his recommendations on the objections. The
decision of the Government on the objections shall be final.
(3) For the purpose
of this section, a person shall be deemed to be interested in land who would be
entitled to claim an interest in compensation if the land were acquired under
this Act." 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 or some fund
controlled or managed by a local authority.
(2) The declaration shall
be published in official Gazette, and shall state 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." 9 "9. Notice
to persons interested –
(1) The Collector shall
then cause public notice to be given at convenient places on or near the land to
be taken, stating that the Government intends to take possession of the land,
and that the claims to compensation for all interests in such land may be made
(2) Such notice shall
state the particulars of the land so needed, and shall require all persons interested
in the land to appear personally or by agent, before the Collector at a time and
place therein mentioned (such time not being earlier than fifteen days after the
date of publication of notice, and to state the nature of their respective
interests in the land and the amount and particular of their claims to compensation
for such interests and their objections (if any) to the measurements made under
8. The Collector may,
in any case, require such statements to be made in writing and signed by the
party or his agent. (3) The Collector shall also serve notice to the same effect
on the occupier (if any) of such land and on all such persons known or believed
to be interested therein, or to be entitled to act for persons so interested, as
reside, or have agents authorized to receive service on their behalf, within the
revenue district in which the land is situate.
(4) In case any person
so interested resides elsewhere, and has no such agent, the notice shall be
sent to him by post in a letter addressed to him at his last known residence, address
or place of business and registered in accordance with the Postal Rules in
force for the time being in that behalf."Section 11 speaks about enquiry into
measurements, value, claims and award by the Collector. Section 12 makes it
clear that the award passed by the Collector shall be final and conclusive
evidence as between the Collector and the persons interested.
Sub-section(2) of Section
12 mandates that the 1Collector shall give immediate notice of his award to such
of the persons interested, as are not present personally or by their representatives
when the award is made. Section 17 relates to special powers entrusted to the
Collector in case of urgency. Section 18 speaks about the reference to Court to
determine the objections as to the quantum of compensation or the measurement of
land and procedure to be followed thereupon. In the last Part, i.e., Part VIII,
which provides miscellaneous provisions, Section 43 speaks about the service of
notice and makes it clear that how notice under this Act shall be made etc.
to Mr. Rajiv Dhawan, learned senior counsel for the appellants, the
requirement, particularly under Section 4, had duly been complied with and because
of the fact that the respondents failed to submit their objections within the
prescribed period under Section 5-A(1), the stand of the respondents/land
owners has to be rejected. As per Section 4, whenever land in any locality is needed
for any public purpose, the Collector has to notify it in the manner provided
in sub-sections (a), (b) and (c) of the said Section.
Public purpose has been
defined in Section 3(g) of the State Act. There is no dispute that the public
purpose mentioned in the notification issued under Section 4(1) of the Act refers
to "development of housing colony" by the Board at Village Ferozpur,
Tehsil Tangmarg, District Baramulla. Undoubtedly, the said purpose is a public
purpose in terms of Section 2(g) of the State Act.
However, the main question
before us is whether the Collector has fully complied with the mandates and procedures
provided in sub-sections (a), (b) and (c) of Section 4. The opening part of
Section 4 i.e. "whenever land in any locality is needed or is likely to be
needed for any public purpose the Collector shall notify it" makes it clear
that the procedure provided in sub-Sections (a), (b) and (c) are mandatory and the
same has to be strictly complied with. (Emphasis supplied).
far as affixing of notice in the locality and information through beat of drum
as well as through local Panchayats and Patwaries are concerned provided in
sub-section (a), that have been complied with. The notification was duly published
in the Government Gazette which satisfies sub-section (b) of Section 4. Sub-section(c)
of that Section mandates that the Collector has to notify his intention to
acquire the land/lands needed for public purpose in two daily newspapers having
largest circulation in the said locality of which at least one shall be in the
regional language. (Emphasis supplied).
elaborating the compliance of sub-section (c) of Section 4 in terms of mandates
provided therein, since Mr. Rajiv Dhawan, learned senior counsel has claimed that
there is substantial compliance of provisions required above and no flaw is to be
found in the acquisition proceedings, let us consider various decisions relied
on by him.
State of T.N. & Anr. vs. Mahalakshmi Ammal & Ors., (1996) 7 SCC 269, paragraph
nos. 8 and 9 were pressed into service. On going through those paragraphs, we
are able to see that the land owners filed their objections to the notice
issued under Section 5-A and Rule 3 of the Rules framed by the State
Government. Except the above factual information, nothing is available on
record in support of the stand taken by the appellants.
next decision relied on by Mr. Rajiv Dhawan is May George vs. Special Tahsildar
& Ors., (2010) 13 SCC 98 wherein he very much pressed into service
paragraph 25 of the said judgment which reads as under: "25. The law on this
issue can be summarised to the effect that in order to declare a provision
mandatory, the test to be applied is as to whether non-compliance with the provision
could render the entire proceedings invalid or not.
Whether the provision
is mandatory or directory, depends upon the intent of the legislature and not
upon the language for which the intent is clothed. The issue is to be examined having
regard to the context, subject-matter and object of the statutory provisions in
The Court may find
out as to what would be the consequence which would flow from construing it in
one way or the other and as to whether the statute provides for a contingency of
the non-compliance with the provisions and as to whether the non-compliance is visited
by small penalty or serious consequence would flow there from and as to whether
a particular interpretation would defeat or frustrate the legislation and if
the provision is mandatory, the act done in breach thereof will be invalid.
"In the above paragraph,
one of us, Dr. B.S. Chauhan, J. has summarized the law as to declare a provision
mandatory or not and the test to be applied whether non-compliance with the provision
could render the entire proceedings invalid or not. Except the above
proposition of law with which we are in entire agreement, the said decision is
also not supporting the stand of the appellants.
judgment in Talson Real Estate (P) Ltd. vs. State of Maharashtra & Ors.,
(2007) 13 SCC 186, relied on by Mr. Rajiv Dhawan, makes it clear that the
provisions of Section 5-A of the Land Acquisition Act, 1894 (hereinafter
referred to as "the Central Act") are attracted only when a person
interested in any land which has been notified under Section 4(1) makes
objection in writing to the Collector within 30 days from the date of the publication
of the notification.
It further makes it
clear that the period of 30 days will have to be counted from the last day of
the publication of the notification under Section 4 of the Act after noting the
date of publication in the Official Gazette and in two daily newspapers and notifying
the substance of such notification on the site, this Court concluded that the appellants
therein did not choose to file their objections within the time prescribed
under Section 5-A of the Act.
Ajay Krishan Shinghal & Ors. vs. Union of India & Ors., (1996) 10 SCC 721,
Mr. Rajiv Dhawan, pressed into service paragraph 8 which speaks about the compliance
of mandatory requirements under Section 4(1). On going 1through the factual details
available on the files produced before it, this Court concluded that the provisions
of Section 4(1) of the Central Act have been fully complied with.
Sulochana Chandrakant Galande vs. Pune Municipal Transport & Ors., (2010) 8
SCC 467, which is a judgment rendered by us under the Urban Land (Ceiling and
Regulation) Act, 1976, Mr. Rajiv Dhawan relied on paragraph 22. In that
paragraph, this Court has held that once the land is acquired, it vests in the State
free from all encumbrances.
It further shows that
it is not the concern of the landowner how his land is used and whether the land
is being used for the purpose for which it was acquired or for any other
purpose. It was further held that the land owner becomes persona non grata once
the land vests in the State and he has a right to get compensation only for the
same. The said decision is not helpful to the issue raised in the case on hand.
last decision relied on by Mr. Rajiv Dhawan is in Banda Development Authority, Banda
vs. Moti Lal Agarwal & Ors., (2011) 5 SCC 394. He relied on paragraph 137
which speaks about principles and how the possession has to be taken under the Central
Act. The said decision is also not helpful to the case on hand.
the other hand, Mr. K.K. Venugopal, learned senior counsel appearing for the respondents
heavily relied on the principles laid down in the following decisions:(i) Khub Chand
& Ors. vs. State of Rajasthan & Ors., AIR 1967 SC 1074 = (1967) 1 SCR
120.(ii) Syed Hasan Rasul Numa & Ors. vs. Union of India & Ors. ,
(1991) 1 SCC 401 and(iii) Kunwar Pal Singh (dead) by L.Rs. vs. State of U.P.
& Ors., (2007) 5 SCC 85.
Khub Chand (supra), Subba Rao, C.J. after considering similar rival contentions
and quoting Sections 4, 5 and 5-A of the Central Act answered several aspects
including the mandatory nature of publication provided under Section 4 of the Act.
The following discussion and conclusion are relevant: 1"6. .....The
learned Advocate-General argued that a combined reading of Sections 4, 5 and
5-A indicates that the direction in the second part of Section 4 that the
Collector shall cause public notice of the substance of the notification to be
given at convenient places in the said locality was only directory.
He pointed out that Section
4 contemplated only a notification in general terms and that under Section 5(2)
after the Collector ascertained the necessary particulars, the Government had
to issue a fresh notification giving sufficient description of the land
intended to be acquired along with a plan, if one had been made, and also to
cause a public notice to be given of the substance of the said notification at
convenient places on or near the land to be acquired.
As two notices were
contemplated by the Act - one in general terms and another with specifications -
and as both the notices should be published and their substance should be
notified at convenient places, the argument proceeded, that the direction to cause
a public notice of the substance of the notification to be given at convenient places
in the said locality under Section 4 was only directory, for the party would
get under the later notification better particulars and thus he would not in
any case be prejudiced. 7. This argument was not accepted by the High Court,
and in our view rightly.
The provisions of a
statute conferring power on the Government to compulsorily acquire lands shall
be strictly construed. Section 4 in clear terms says that the Collector shall cause
public notice of the substance of such notification to be given at convenient
places in the said locality. The provision is mandatory in terms. Doubtless,
under certain circumstances, the expression "shall" is construed as "may".
The term "shall"
in its ordinary significance is mandatory and the court shall ordinarily give
that interpretation to that term unless such an interpretation leads to some absurd
or inconvenient consequence or be at variance with the intent of the
legislature, to be collected from other parts of the Act. The construction of the
said expression depends on the provisions of a particular Act, the setting in which
the expression appears, the object for which the direction is given, the consequences
that would flow from the infringement of the direction and such other
The object underlying
the said direction in Section 4 is obvious. Under sub-section (2) of Section 4
of the Act, after such a notice was given, the officer authorised by the
Government in that behalf could enter the land and interfere with the possession
of the owner in the manner prescribed thereunder. The legislature thought that it
was absolutely necessary that before such officer can enter the land of
another, the owner thereof should have a clear notice of the intended entry.
The fact that the owner
may have notice of the particulars of the intended acquisition under Section
5(2) does not serve the purpose of Section 4, for such a notice shall be given after
the appropriate officer or officers enter the land and submit the particulars
mentioned in Section 4. The objects of the two sections are different: the
object of one section is to give intimation to the person whose land is sought
to be acquired, of the intention of the officer to enter his land before he
does so and that of the other is to enable him to know the particulars of the
land which is sought to be acquired.
In the Land
Acquisition Act, 1894 (Central Act 1 of 1894) there is no section corresponding
to Section 5(2) of the Act. Indeed sub-section (2) of Section 5 of the Act was
omitted by Act 15 of 1960 and Section 5-A was suitably amended to bring the
said provision in conformity with those of Central Act 1 of 1894. Whatever may be
said on the question of construction after the said amendment -- on which we do
not express any opinion -- before the amendment, Sections 4 and 5(2) were intended
to serve different purposes. 8. Indeed, the wording of Section 4(2) of the Act
leads to the same conclusion.
It says, "thereupon
it shall be lawful for any officer, generally or specially authorised by the
Government in this behalf, and for his servants and workmen to enter upon and survey
and take levels of any land in such locality...." The expressions "thereupon"
and "shall be lawful" indicate that unless such a public notice is
given, the officer or his servants cannot enter the land. It is a necessary condition
for the exercise of the power of entry.
with the said condition makes the entry of the officer or his servants
unlawful. On the express terms of sub-section (2), the officer or his servants can
enter the land to be acquired only if that condition is complied with. If it is
not complied with, he or his servants cannot exercise the power of entry under
Section 4(2), with the result that if the expression "shall" is construed
as "may", the object of the sub-section itself will be defeated. The statutory
intention is, therefore clear, namely, that the giving of public notice is mandatory.
If so, the notification issued under Section 4 without complying with the said mandatory
1 direction would be void and the land acquisition proceedings taken pursuant
thereto would be equally void."
Syed Hasan Rasul Numa (supra), this Court considered the dictum laid down by
Subba Rao, C.J., in Khub Chand (supra). The following conclusion is relevant: "13.
There is a broad basis for the view that we have taken from the decisions of
this Court although on the provisions of other enactment. Section 4(1) of the Land
Acquisition Act, 1894 provides for publication of the notification in the
official Gazette and in two daily newspapers circulating in that locality where
the land is situated of which at least one shall be in the regional language.
Section 4(1) further provides
that the Collector shall cause public notice of the substance of such
notification to be given at convenient places in the said locality. In Khub
Chand v. State of Rajasthan Subba Rao, C.J., while construing the object and
scope of Section 4(1) expressed the view that provisions of the section requiring
public notice are mandatory and the legislature thought that it was absolutely necessary
that the owner of the land should have a clear notice of the proposed acquisition.
It was said that the
fact that the owner may have notice of the particulars of the intended acquisition
by any other means does not serve the purpose of Section 4 and does not absolve
the obligation to follow the method of publication of the notification. It was
also observed that the notification issued under Section 4(1) without complying
with the mandatory direction would be void and the land acquisition proceedings
taken pursuant thereto would also be void.
This view has been reiterated
in a number of subsequent decisions of this Court. In Collector (District Magistrate),
Allahabad v. Raja Ram Jaiswal most of the earlier decisions have been referred
to and the view taken in Khub Chand case has been reiterated. 14. In the
instant case, the notice has been published only in the local newspapers, namely,
the Daily Pratap, the Hindustan Times, the Statesman, the Indian Express and the
This is only one of the
three means of publication provided under Section 44 and it apparently falls short
of the mandatory requirements of the section. Since the provisions of the Section
44 have not been complied with, the notice in question has no validity and the action
taken pursuant thereto has also no validity."
Kunwar Pal Singh (supra), this Court while construing three modes of
publication, namely, (i) publication in the Official Gazette, (ii) in two daily
newspapers circulating in the locality and, (iii) causing public notice of the
substance in the locality where the land situate, provided under the Central
Act, held as under:- "16. Section 6(2), on a plain reading, deals with the
various modes of publication and they are:
(a) publication in the
(b) publication in two
daily newspapers circulating in the locality in which the land is situate of which
at least one shall be in the regional language, and
(c) causing public
notice of the substance of such declaration to be given at convenient places in
the said locality. There is no option left with anyone to give up or waive any
mode and all such modes have to be strictly resorted to. The principle is well settled
that where any statutory provision provides a particular manner for doing a
particular act, then, that thing or act must be done in accordance with the manner
prescribed there for in the Act".
all the above decisions arose under the Central Act, it is not in dispute that similar
provisions have been incorporated in the State Act. We have already extracted
Sections 4, 5, 5-A and 6 of the State Act which are similar to the provisions of
the Central Act. From the materials placed before us, we are satisfied that the
conditions prescribed in Section 4(1)(a) and (b) had been complied with except
Section 4(1)(c) which have not been followed. In the light of the language used
in Section 4(1), namely, "the Collector shall notify it", the procedures/directions
provided in Section 4(1)(a)(b) and (c) ought to be strictly complied with.
There is no option
left with anyone to give up or waive any of the mode and all such modes have to
be strictly resorted to. It is settled law that when any statutory provision provides
a particular manner for doing a particular act, the said thing or act must be
done in accordance with the manner prescribed therefor in the Act. Merely
because the parties concerned were aware of the acquisition proceedings or served
with individual notices does not make the position alter when the statute makes
it very clear that all the procedures/modes have to be strictly complied with in
the manner provided therein.
Merely because the land
owners failed to submit their objections within 15 days after the publication of
notification under Section 4(1) of the State Act, the authorities cannot be
permitted to claim that it need not be strictly resorted to. In the case on hand,
admittedly, the notification was published in two daily newspapers i.e. in the
Himalayan Mail and in the Greater Kashmir but one of them was not a newspaper
published in regional language i.e. Kashmiri which is the requirement of
Section 4(1)(c) of the Act.
We have already held
that all the requirements provided in Section 4(1)(a)(b) and (c) are mandatory
and have to be strictly adhered to. In addition to the same, though on
11.06.2003 a corrigendum was issued for enlarging the area of acquisition, admittedly,
this corrigendum was not published in any newspaper.
pointed out above, it is true that the prescribed period of 15 days as
mentioned in Section 5-A(1) of the Act for filing objections starts running from
the date of publication of the notification under Section 4(1) of the Act in the
manner provided in Clause (a), however, at the same time, the conditions as prescribed
under Section 4(1) have not been fully complied with. It cannot be claimed that
compliance of provisions of sub-Sections (a) to (c) of Section 4(1) are only
On the other hand, it
is not only mandatory but all the terms provided therein are to be complied with
very strictly. This has been reiterated in Section 5-A of the Act also. By
virtue of the provisions of the State Act, the valuable right/ownership of the
land owners being taken away, hence, those provisions have to be strictly construed.
The object of publication in terms of Section 4(1)(c) of the Act is to intimate
the people who are likely to be affected by the notification.
It is not in dispute
that when the officers attempted to serve the notice by affixation or to persons
in charge of the land, they were informed about the absence of the land owners due
to disturbance in the area in question and it was also informed that they are residing
in Delhi. In spite of such information, the authorities have not taken care of
sending proper notice to the respondents or comply with the provisions, particularly,
Section 4(1)(c) of the Act.
In view of the above
discussion, we agree with the reasoning and ultimate conclusion of the learned single
Judge quashing the acquisition proceedings from the stage of Section 5A of the
State Act and the decision of the Division Bench affirming the decision of the learned
from the above infirmities, Mr. Venugopal, learned senior counsel for the
respondents after taking us through the provisions of the J&K Housing Board
Act, 1976, particularly, framing of housing schemes and acquisition and disposal
of land contended that in the absence of any approved Scheme by the Board, it
is not permitted to proceed further. In respect of the above argument, he
highlighted Sections 14, 15, 17, 19 and 26(1)(2) of the Housing Board Act,
Inasmuch as we accept
the reasonings and the conclusion of the learned single Judge quashing the
acquisition proceedings from the stage of Section 5-A and further direction to
file their objections afresh within 15 days of the receipt of copy of his
order, we are not inclined to go into the said contention. However, the
contesting respondents are free to raise the said objection and it is for the
authority concerned/government to take a decision one way or other if the same
is acceptable for which we are not expressing any opinion.
the light of the above discussion, we are unable to accept the stand taken by
the Board-appellants herein, on the other hand, we are in entire agreement with
the decision of the learned single Judge as affirmed by the Division Bench.
Consequently, the appeals fail and the same are dismissed with no order as to costs.
In view of the dismissal of the appeals of the Board and in the light of the
various objections raised, the respondents/land owners are permitted to file
their additional objections, if they so desire, within 15 days from the date of
receipt of this judgment.
On receipt of those fresh
objections, the Collector of the Board will consider both the original and additional
objections and also afford personal hearing to them at the Housing Board Office
situated at Green Belt Park, Gandhi Nagar, Jammu and proceed further in
accordance with law.
(DR. B.S. CHAUHAN)