Mohammad Abdullah Jan vs Pandit and others

Decision of this writ petition turns upon the validity of notification dated 981979 issued under sec, 6 of the Jammu and Kashmir Land

Acquisition Act, 1990, hereinafter referred to as 'the Act', by the Government of Jammu and Kashmir respondent No. 1 herein, dispensing with

the compliance of Sec. 5A of the Act and authorising the Land Acquisition Collector to take possession of the land sought to be acquired. This

notification, for the sake of convenience, is reproduced as below :

Govrnment of Jammu and Kashmir Revenue Department. Notification

No. RD 204 of 1979

Whereas land is required by the Government for a public purpose namely for improvement to communication system in the city of Srinagar.

This declaration is made under Section VI of the Land Acquisitin Act, 1990 SVT as amended upto date and under section VII of the Act, the

collector is directed to take order for acquisition of the said land.

In view of the urgency involved in the matter the collector is further directed to proceed under section 17 of the Act after expiry of the period of

notices under section 9 as provided in the said Act. It is ordered that the provisions of section 5A shall not apply in this case.

Specification

Mouza

Chatabal

District

Srinagar

Tehsil

Srinagar

K M Sft 45120

Khasra Nos.

1660, 1661,

1662, 1667, 1657, 1659,

1663, 1664

Sd/

Revenue Minister.

No. Rev/LAK) 90/79 Dated 981979,

The petitioners are owners of land which the Government seeks to acquire for the public purpose of improving communication system in the city

of Srinagar Notification under sec. 4 was issued by the Land Acquisition Collector, hereinafter to be referred to' as 'the Collector', on 511959

inviting objections from the land owners in terms of Sec. 5A of the Act. The petitioners filed their objections, Admittedly, they were not given any

personal hearing by the Collector, on whose report the Government eventually issued notification under section 6 reproduced heretofore. Notices

to the persons interested were also issued by him pursuant to which the petitioners too filed their objections. They have, however, challenged the

entire acquisition proceedings beginning with the issuance of notification under section 4 on the grounds ' firstly, that notification under sec. 4 was

issued by the Collector without any application of mind ; secondly, that they were not given any personal hearing in terms of Sec. 5A after they had

filed objections to the acquisition; thirdly, that no notice under sec. 9 was ever served upon them; fourthly, that the composite notification issued

under section 6 and the third proviso to section 17 was issued by the Government without recording its satisfaction that the land was waste or

arable and was required to be taken possession of due to any urgency, and fifthly, that the acquisition of their land was vitiated by malafides.

The respondents have, however, resisted the petition alleging: that notice under sec. 4 was issued by the Collector after applying his mind to the

facts and circumstances of the case; that even though no personal hearing was given to the petitioners in terms of Sec, 5A, yet the Collector had

considered their objections before submitting his report to the Government; that in any event the land being waste and there being an urgency to

take its possession, the Government had dispensed with the compliance of Section 5A in exercise of its powers under the third proviso to Sec. 17,

as such, no fault could be found on that score with the acquisition proceedings; that notices under section 9 were, in fact, served upon the

petitioners pursuant to which they had also filed their objections; and that the acquisition was not actuated by any malice on the part of the

Government towards the petitioners, but had originated from the necessity to improve the communication system in the city of Srinagar

No other ground, except the one that there has been no compliance with Sec. 5A was pressec on behalf of the petitioners during the course of

arguments. Reliance has been placed upon the judgement of this court in Shri Omkar Nath Khashoo Vs State of J & K and ors. write petition No

257 of 1980, wherein on the authority of two Supreme Court decisions viz Mandir Sita Raoi Ji Vs. Governor o"" Delhi and others, A I.R. 1974 SC

1868

Mohd, Ahdullan Jan & ors Vs State of J&K & ors

and Fat id Ahmed Abdul Samad Versus The Municipal Corporation of the City of Ahmedabad and another, AIR 1976 SC 2085, it has been held

that the provisions of Sec. 5A (2) are mandatory in character and failure to comply with these provisions vitiates all subsequent proceedings taken

under the Act, including the notification issued under section 6. The respondents have no quarrel with the proposition of law. Reliance on their

behalf has, however, been placed upon section 17 of the Act which reads as under :

Special powers in case of urgency: In cases of urgency, whenever the Government so directs, the Collector, though no such award has been

made may on the expiration of fifteen days, from the publication of the notice mentioned in section 9, subsection (1) take possession of any waste

or arable land needed for public purposes. Such land shall thereupon vest absolutely in the Government free from all encumbrances :

Provided that, the Collector shall not take possession of any building or part of a building under this subsection, without giving to the occupier

thereof at least 48 hours' notice of his intention to do so, such longer notice as may be reasonably sufficient, to enable such occupier to remove his

movable property from such building without unnecessary inconvenience: and

Provided in every case under this section the Collector shall at the time of taking possession offer to the persons interested compensation for the

standing crop and trees (if any) on such land and any other damage sustained by them caused by such dispossession and not excepted in section

24; and in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding

compensation for the land under the provisions herein contained :

Provided also that in case of any land to which, in the opinion of the Government the provisions of Subsection (1) are applicable, the Government

may direct that the provisions of section 5A shall not apply, and if it does so direct a declaration may be made under section 6 in respect of the

land at any time after the publication of the notification under section 4, subsection (1).

According to Mr. Malik, Government has ample powers to dispense with the compliance of Sec. 5A whenever there is an urgency to take

possession of the land sought to be acquired. The Government in the notification issued by it under section 6, in the present case, having declared

such an urgency could have dispensed with the compliance of Section 5A and no fault could be found with the acquisition proceedings merely

because the petitioner had not been given a personal hearing by the Collector. The facts in Omkar Nath Khashoo's case (supra), argued the

learned counsel, are clearly distinguishable from the facts of the present ease in that, compliance with Section 5A had not been dispensed with in

that case.

Ordinarily, the Collector is not entitled to take posses ion of the land before he has made the award. This is borne out from Sec. 16. He has to

follow a lengthy procedure before the stage envisaged by section 16 is reached. This procedure for taking possession has been short circuited by

section 17, which empowers, the Government to take possession even earlier, provided three conditions are satisfied: one, that an urgency to take

possession has arisen; two, that the land of which the possession is to be taken is either waste or arable; and three, that a notice under section 9(1)

has been issued at least fifteen days earlier to the date of possession. Dispossessing an owner of his property, even when no award has been

made, is manifestly an extraordinary step which the Government is not supposed to take, unless it is satisfied that to do so is absolutely imperative.

This satisfaction the Govt. has to reach before taking recourse to Sec 17. It is required to declare in the notification itself not only that an urgency

to take possession is involved, but also that the land of which the possession is to be taken is waste or arable. These are jurisdiction facts, which

must be stated in the notification itself. Once they are so stated, she presumption of regularity of official acts will be attached to them and a very

heavy burden will lie upon the owner to show that there was no urgency, or that the land was neither waste nor arable. Failure to make a

declaration to that effect in the notification will only vitiate it, but will also invalidate all proceedings taken subsequent to the issuance of notifications

under section 4.

The provisions of Section 17 of the Act are substantially the same as those of Sec. 16 of the Land Acquisition Act, (Central Act No. 1 of

1884). A similar point arose in Dora Phalauli V State of Punjab and others, A.I. R. 1979 S.C. 1594, wherein also the Government of Punjab had

issued a notification under subsec. 4 of Sec. 17 of the Central Act which read as follows :

Further in exercise of powers under the said Act, the Governor of Punjab is pleased to direct that action under Section 17 shall be taken in this

case on the grounds of urgency and provisions of Section 5A will not apply in regard to this acquisition"".

On behalf of the owners it was contended that there had been no complience with subsection 4 of Section 17 of the Central Act which

corresponds to the third Proviso of Section 17 of the Act, inasmuch as, the notification issued contained no declaration either that the Government

was satisfied abut the existence of the urgency to take possession, or that the land of which the possession was to be taken was a waste or arable

land. These contentions prevailed with their Lordships, who upheld the same by observing :

it is to be clearly understood that under subsection (4), the appropriate Government may direct that the provision of Section 5A shall not apply

where in the opinion of the State Government, the provisions of subsection (1) of subsection (2) are applicable, otherwise not. For making the

provisions of subsection (1) applicable, two things must be satisfied that the land in respect of which the urgency provision is being applied is waste

or arable and secondly that there is an urgency to proceed in the matter of taking immediate possession and so the right of the owner of the land

for filing an objection under Section 5A should not be made available to him. In the portion of the Notification which we have extracted above it is

neither mentioned that the land is waste or arable nor has it been stated that in the opinion of the Government, there was any urgency to take

recourse to the provisions of Section 17 of the Act. A direction to the Collector has been given to take action under Section 17 on the ground of

urgency but this is not a legal and complete fulfilment of the requirement of the law. It is to be remembered that the right of a person having any

interest in the property to file an objection under Section 5A of the Act should not be interfered with in such a casual or cavalier manner as has

been done in this case.

In the present case the notification on doubt mentions the satisfaction of the Government in regard to the existence of the urgency, but, it does

not go further to state that the land of which possession is to be taken is a waste or arable land to which alone the provisions of Sec. 17 are

applicable. This lapse on the part of Government has clearly vitiated the notification as a result whereof it cannot be reasonably said that

complience with the provisions of Sec 5A has been validly dispensed with. That being so, as in fact it is, all proceedings taken by the Collector, or

for that matter by the Government, subsequent to the issuance of the notification under section 4 stand vitiated. Mr. Malik's argument that the land

sought to be possessed is waste land cannot be taken nonce of in the absence of a declaration to that effect in the notification dated 9 8, 1979. For

aught we know whether this plea is an after thought or the Government had in fact satisfied itself about the character of the land before issuing the

aforesaid notification.

In the result the petition succeeds which is allowed accordingly. The notification issued by the Government on 9. 8. 1979 under Sec. 6 and all

notices issued or proceedings taken subsequent there to are by a write of certiorari quashed. This will not, however, preclude the authorities from

proceeding further in the matter after giving an opportunity to the petitioners of being heard in support of their objections filed in terms of Sec. 5A.

In the peculiar circumstances on the case the parties are left to bear their own costs.