Constructive Notice Enough To Sustain Acquisition | J&K High Court Says Procedural Lapse In Language Does Not Invalidate Notification When Party Filed Objections And Understood Content
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Vinod Chatterji Koul dismissed an appeal challenging the acquisition of land for a university project. The Court held that the appellant had proper notice of the preliminary notification and had filed objections, thereby suffering no prejudice due to publication shortcomings. The Court upheld the land acquisition process and directed the concerned authority to proceed with the acquisition in accordance with law.
The appellant, a 68-year-old resident of Zakoora, Srinagar, filed an intra-court appeal against the dismissal of his writ petition by the Single Judge. The original writ petition, OWP No. 882/2017, had challenged a land acquisition notification dated 25.05.2017 issued under Section 4(1) of the Jammu and Kashmir Land Acquisition Act. The subject land, comprising 15 Kanals and 13 Marlas in Khasra No. 1355/919 and 5 Kanals and 8 Marlas in Khasra No. 1356/9420 at Zakoora, Srinagar, was earmarked for construction of a Basic Science College of Excellence by the University of Kashmir.
The appellant contested the notification on the ground that the land was evacuee property leased to him for 55 years by the Custodian General of Jammu and Kashmir. He had obtained requisite permissions for construction and had begun building a school when the acquisition notification was issued by the Assistant Commissioner (Revenue), Srinagar.
The appellant raised five key objections before the writ court:
- That the Assistant Commissioner (Revenue), who issued the notification, lacked the status of “Collector” under the Act.
- That evacuee property could not be acquired under the Land Acquisition Act.
- That the notification was not published in accordance with the statutory requirements under Section 4 of the Act.
- That the acquisition was unnecessary and arbitrary, given the University already possessed ample land nearby.
- That following the J&K Reorganisation Act, 2019, acquisition should proceed under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
The writ petition was contested by all respondents, including the University of Kashmir and the acquisition authorities. In response, they submitted that the Assistant Commissioner had been vested with powers of the Collector via government-issued SROs. They also asserted that evacuee property was not exempt from acquisition and denied any irregularity or arbitrariness in the process.
After considering the pleadings and submissions, the writ court dismissed the petition. It cited SRO 213 of 1966 and SRO 461 of 1985 to establish that Assistant Commissioners were empowered as Collectors. The court also held that evacuee property was not immune to acquisition, citing judgments including Saraswati Devi v. Delhi Development Authority and Delhi Administration v. Madan Lal Nangia.
The Single Judge concluded that the appellant, having submitted objections after being notified, could not claim a defect in publication under Section 4(1). It was further held that the suitability of the land or availability of alternate land could not be determined in a writ proceeding. The court found no merit in the argument that acquisition under the 2013 Act was necessary, especially as the appellant had obtained a stay that stalled the process.
Following this, the appellant approached the Division Bench in LPA No. 262/2023, reiterating only two of the five grounds: the alleged defect in publication of the acquisition notice and the availability of alternate land for the University project.
The Division Bench recorded that: “We are of the considered opinion that the Issue Nos. (3) and (4), which were vehemently agitated by Mr. Lone before us, have been very correctly decided by the writ court.”
On the challenge to publication under Section 4(1), the Court noted: “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 provided 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.”
The Court further quoted: “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.”
On the issue of not publishing in the regional language, the Court recorded: “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... 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... it does not lie in the mouth of the appellant to contend that he has been seriously prejudiced.”
Referring to the Supreme Court’s decision in J. Sivaprakasam, the Court stated: “Even if the publication in two regional language newspapers is considered to be not in compliance... it cannot affect the validity of the preliminary notification or the consequential proceedings.”
Regarding the appellant’s claim that the land selection was arbitrary, the Court stated: “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.”
The Court also noted: “Interestingly, the appellant without waiting for the adjudication of his objections to the proposed acquisition, approached this Court and got the entire proceedings stayed.”
In conclusion, the Court observed: “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.”
The Division Bench concluded that the appellant could not dictate the selection or suitability of land identified for acquisition by the Indenting Department.
The Court held that such considerations fall outside the scope of proceedings under Article 226 of the Constitution of India.
It recorded that the appellant, as an interested party, had already exercised the right to object to the proposed acquisition under Section 5-A of the Jammu and Kashmir Land Acquisition Act.
These objections were pending consideration before the Collector. The Court noted that the appellant had approached the Court and secured an interim stay without awaiting the outcome of the statutory process, thereby interrupting the acquisition proceedings.
Upon reviewing all submissions, the Court recorded that no further arguments were advanced by the appellant. It held that there was no merit in the appeal and accordingly dismissed it. The Court directed respondent no. 4 to proceed with the acquisition of the subject land strictly in accordance with law.
Advocates Representing the Parties
For the Appellant: Mr. G.A. Lone, Advocate with Mr. Mujeeb Andrabi, Advocate
For the Respondents: Mr. Mohsin Qadri, Senior Additional Advocate General with Ms. Maha Majeed, Assisting Counsel; Mr. Syed Faisal Qadri, Senior Advocate with Mr. Sikander Hayat, Advocate
Case Title: Gazanfar Ali v. Union Territory of Jammu & Kashmir & Others
Case Number: LPA No. 262/2023
Bench: Justice Sanjeev Kumar, Justice Vinod Chatterji Koul
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