Failure to Publish Notice in Regional Language and Gazette Amounts to Breach of Mandatory Provisions, Vitiates Acquisition Proceedings: J&K High Court
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh at Jammu, Single Bench of Justice Sanjay Dhar, declared the land acquisition process for the construction of an amusement park at Village Abdal (Nai Basti), Tehsil Suchetgarh, District Jammu as void. The petition was filed against an award dated 24.04.2019 issued by the Collector Land Acquisition, R.S. Pura. The Court held that the mandatory provisions of the Jammu and Kashmir Land Acquisition Act, 1990 Svt. had not been complied with. It found that the petitioners were entitled to notice and an opportunity of hearing under the statute. The Court directed the respondents to initiate fresh proceedings under the 2013 Act and complete the process within six months.
The dispute arose out of acquisition proceedings initiated for the construction of an amusement park over 134 kanals and 11 marlas of land situated at Village Abdal (Nai Basti), Tehsil Suchetgarh, District Jammu. The petitioners contended that they and their predecessors had been in cultivating possession of the said land for over seventy years and were recorded as such in the revenue records.
The petitioners challenged the final award No. SDMR/LA/Amuse-Park/2019-20/325-26 dated 24.04.2019 issued by the Collector, alleging violation of mandatory procedural requirements under the Jammu and Kashmir Land Acquisition Act, 1990 Svt. It was submitted that the mandatory notifications under Sections 4(1), 5, 5-A, 6, 9, and 9-A were not served upon them and that the declaration under Sections 6 and 7 was not published in the official Gazette.
Respondent No. 5, the Collector Land Acquisition, stated that the petitioners were tenants of the land as per revenue records and not in physical possession. It was further submitted that the land was already taken over and construction work had been completed. A claim to ownership was raised by the J&K Dharmarth Trust Council, which opposed disbursement of compensation to any other person.
Due to the dispute between the Trust and the petitioners, it was submitted that compensation had not been transferred to the Collector’s account, and as such, disbursement was stalled. The respondents contended that due process was followed and supported their position by producing records of notifications.
However, the petitioners maintained that neither personal nor public notice of the acquisition had been served upon them. They claimed no opportunity to raise objections under Section 5-A was provided. The issue before the Court concerned compliance with Sections 4, 5, 5-A, 6, and 9 of the Land Acquisition Act.
Justice Sanjay Dhar referred extensively to the procedural requirements of the Jammu and Kashmir Land Acquisition Act, noting that Section 4 mandates the Collector to notify the acquisition through multiple channels: by public notice affixed at convenient places in the locality, through beat of drum and by local Panchayats and Patwaris; in the Government Gazette; and in two daily newspapers, one of which must be in the regional language.
The Court cited the decision in J&K Housing Board & Anr. v. Kunwar Sanjay Krishan Kaul & ors. (2011) 4 SCC 714, which affirmed the mandatory nature of Section 4’s publication requirements. The Supreme Court had relied on Khub Chand v. State of Rajasthan, AIR 1967 SC 1074, noting: “The statutory intention is… that the giving of public notice is mandatory. If so, the notification issued under Section 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void.”
Justice Dhar recorded that “in the instant case the record does not suggest that excepting publication of the notice in one newspaper of English language, the other modes of publication have been followed by the respondent-Collector. On this ground alone, the acquisition proceedings are liable to be quashed.”
The Court observed that although a copy of the notification under Section 4 was endorsed to various authorities with instructions for publication, the record lacked evidence of actual compliance. The notice was published only in an English daily and not in any regional language newspaper, nor was there any proof of beat of drums, affixing of notices, or involvement of local Panchayats and Patwaris.
On the matter of opportunity for objections under Section 5-A, the Court noted the absence of any objections from the petitioners in the official records, concluding that “there was no question of consideration of their objections by the Collector... their right of hearing has been breached in the instant case.”
The Court referred to Union of India v. Shivraj, (2014) 6 SCC 564, where the Supreme Court held that “the Collector is duty bound to objectively consider the arguments advanced by the objector and make recommendations duly supported by brief reasons.”
Further, Justice Dhar observed that the declaration under Section 6 had not been published in the Government Gazette. The record was silent on this essential requirement, which the Court found fatal to the acquisition process. It also found no evidence of service of notices under Section 9 to the petitioners, who were recorded as occupiers in the apportionment statement.
Referring to precedents such as Bansi Lal Bhat v. State of J&K & ors. (2012) 4 JKJ 272, Musaffar Ahmed Beg & ors. v. State of J&K & ors. (2021) 6 JKJ 20, and Bashir Ahmed Bhat v. State & ors. (2023) 2 JKJ 310, the Court reaffirmed that deviation from mandatory requirements under Sections 4, 5-A, and 6 rendered the proceedings invalid.
It was noted that the Collector relied solely on a no-objection communication from the Dharmarth Trust dated 03.02.2017 and failed to independently notify the petitioners who were recorded as tenants. The Court found this procedure fundamentally flawed.
On these findings, the High Court issued the following directions: “the writ petition is allowed and the impugned award passed by the respondents is quashed and the respondents are directed to initiate fresh proceedings for acquisition of the land in question under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 forthwith and conclude the same within six months from the date of this judgment.”
It was further directed that, “in case the land in question is not required by the respondents they shall handover the possession of the same to the recorded occupiers, forthwith.” The matter was disposed accordingly.
Advocates Representing the Parties
For the Petitioners: Mr. S.M. Chowdhary, Advocate
For the Respondents: Ms. Sagira Jaffar, Assisting Counsel to Ms. Monika Kohli, Senior Additional Advocate General
Case Title: Rattan Chand and others v. Union Territory of J&K and others
Case Number: WP(C) No. 1361/2023
Bench: Justice Sanjay Dhar
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