Safiya Malik

In a significant judgement concerning procedural compliance under land acquisition laws, the High Court of Jammu & Kashmir and Ladakh at Jammu directed the initiation of fresh proceedings for the acquisition of land intended for an amusement park. The Single Bench, of  Justice Sanjay Dhar, quashed the final land acquisition award issued by the Collector, Land Acquisition, R.S. Pura, citing violations of the mandatory provisions of the Jammu and Kashmir Land Acquisition Act, 1990 (Svt.).

The Court recorded that the acquisition process failed to meet the statutory requirements related to public notice, service of notifications, and hearing of objections, thereby breaching the rights of the petitioners, who were long-standing tenants and occupants of the acquired land. The Court stated, "mandatory provisions of the State Land Acquisition Act have been observed by the Collector in breach thereby, vitiating the acquisition proceedings including the impugned award."

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The petition was filed by seven residents of Village Abdal (Nai Basti), Tehsil Suchetgarh, District Jammu, who claimed uninterrupted cultivating possession of the land in question for over 70 years. The land, measuring 134 kanals and 11 marlas across khasra numbers 11, 13, 14, 15, 17, 19, 20, and 21, was acquired for constructing an amusement park pursuant to a request from the Director, Tourism Department.

According to the petitioners, despite being recorded occupants of the land, they were not served any notifications as mandated under Sections 4(1), 5, 5-A, 6, 9, and 9-A of the Jammu and Kashmir Land Acquisition Act. The final award, issued via No. SDMR/LA/Amuse-Park/2019-20/325-26 dated 24.04.2019, was challenged as having been passed ex-parte, without granting them an opportunity of being heard.

The petitioners supported their claims with revenue records showing their names as tenants. The award itself also recorded their names in the apportionment statement under the column "name of tenant," whereas the name "Mandir Suchetgarh" was reflected under the column "ownership."

The respondents, led by the Collector Land Acquisition (Respondent No. 5), contested the petition by arguing that the land was no longer in physical possession of the petitioners and that the project had been completed. The respondents further asserted that the land belonged to J&K Dharmarth Trust Council, which had consented to the acquisition and claimed the compensation.

The respondents contended that all procedures under the Land Acquisition Act had been complied with and produced official records, including copies of notifications and endorsements. They maintained that publication was made in the English daily Excelsior and that directions had been issued for serving notices through Patwaris and local Panchayats.

Justice Sanjay Dhar conducted a detailed analysis of the statutory provisions and precedents governing land acquisition, particularly focusing on the mandatory nature of notifications and the right to a hearing under the State Land Acquisition Act.

On examining the procedural obligations under Section 4(1), the Court stated, "the Collector has to issue a public notice in the manner as provided under Clauses (a), (b) and (c)... notice has to be affixed at a convenient place in the relevant locality and beat of drums has to be undertaken so as to make it known to the interested persons." The Court noted the requirement for publication in two widely circulated newspapers, one of which must be in the regional language, and also in the Government Gazette.

While the record showed that the notification dated 15.12.2016 was published in the English newspaper Excelsior on 22.12.2016, the Court noted that there was "nothing in the record to show that the notification has been published in any newspaper in the regional language" or in the Government Gazette. There was also no documentation indicating that the notice was affixed in the locality or made known by beat of drums.

The Court cited Supreme Court judgments, including J&K Housing Board & Anr. Vs Kunwar Sanjay Krishan Kaul & Ors. (2011) 4 SCC 714 and Khub Chand vs State of Rajasthan AIR 1967 SC 1074, which mandate strict compliance with publication requirements under land acquisition laws. Referring to these, the Court stated, "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."

Regarding the denial of hearing, the Court observed that the absence of any recorded objections or hearings from the petitioners validated their claim of not being informed. Referring to Union of India vs Shivraj (2014) 6 SCC 564, the Court reiterated that "right given under Section 5-A to land owners/interested persons to be heard on their objections is not a mere formality."

Further, the Court stated, "the record produced by the respondents does not show that declaration issued by the government in terms of Section 6 of the Act has been published in the Government Gazette." It also noted the absence of any proof of service under Section 9 upon the petitioners.

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The judgment critically remarked that the Collector had relied solely on a no-objection communication from the Dharmarth Trust dated 03.02.2017 and "did not take steps to serve the requisite notices under various provisions of the State Land Acquisition Act upon the petitioners, who are admittedly tenants/occupiers of the land in question."

Based on the cumulative procedural lapses, the Court quashed the impugned award dated 24.04.2019. The final directive stated, "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."

The Court further ordered 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."

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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