Mohan Singh vs State of Jammu & Kashmir and ors

Mr. Justice Muzaffar Hussain Attar, Judge

In this writ petition, petitioner has called in question Notification issued u/s 4 of the Land Acquisition Act and declarations issued u/s 6 and

further notifications issued under Sections 9, 9(a) and 17 of the Land Acquisition Act. The claim of the petitioner is that he is owner in possession

of the land measuring one (01) Kanal 18 (eighteen) marlas of land covered by Khasra No. 56 min situated at Village Kundrorian Tehsil Katra and

District Reasi. The case set up by the petitioner in the writ petition is that earlier Notification u/s 4 of the Land Acquisition Act was issued in

respect of land measuring 547 kanals 6 = marlas and in terms of the Corrigendum to Notification 191- RD of 1977, one (01) kanal 18 (eighteen)

marlas of land covered by Khasra No. 56 min was denotified. It is further claimed that in terms of Notification issued u/s 4 of the Land Acquisition

Act dated November 14, 2009, the land of the petitioner was again notified for acquisition. Learned Counsel for the petitioner submitted that

petitioner was not given an opportunity to file objections and there has been violation of the fundamental Rights of petitioner and statutory Rights

contained in the Land Acquisition Act. The Notification issued u/s 4 of the Act and other notifications issued by the Collector were subject matter

of many other writ petitions with lead writ petition (OWP) No. 1239/2010 which were decided on September 07, 2011. The Court in its decision

did not found fault with the Notification issued u/s 4 of the Land Acquisition Act, but declaration u/s 6 and Notifications under Sections 9, 9(a) and

17 were held to be invalid. Respondent No.2 in that case was directed to provide opportunity of hearing to the petitioners therein as is mandate of

Section 5(a) of the Land Acquisition Act and thereafter was directed to frame his report and make recommendations in respect of the objections

and submit the same to the Government. Government was given opportunity to take decision in the matter. It was also provided that the decision

of the Government will be binding on the petitioners therein. The matter came before the Division Bench of this Court in the batch of LPA(s)

wherein (2012 (2) JKJ 43(HC) 43) the judgment of Writ Court was upheld, however, with some modifications. The case of the petitioner is

covered by the judgment of the leaned Single Judge and aforementioned judgment of the Hon​ble Division Bench of this Court.

There is one distinguishing factor in respect of the case of the petitioner, in view of the material placed on record and admission of respondent

No.5 that the possession of land of the petitioner in respect of one (01) kanal 18 (eighteen) marlas has not been taken. Otherwise, after quashment

of the Notifications and declarations, the possession of the land can be taken only in accordance with the State Land Acquisition Act.

Learned Counsel for the respondents submitted that this case is covered by the judgment of the Writ Court passed in batch of writ petitions with

lead writ petition (OWP) No. 1239/2010 and the Division Bench of this Court. Learned Counsel further submitted that this case be disposed of

accordingly.

It is the duty of the Collector to afford opportunity to file objections and to hear the petitioner after the Notification u/s 4 is issued. Section 5(a)

though the statutory provisions has in essence constitutional flavor in it. Section 5(a) constitutes the soul of the State Land Acquisition Act and

denying such right as mandated in the said Section would result in not only breach of the said provision of the statute but constitutional right to hold

the immovable property which is guaranteed under Article 19(1)(f) of the Constitution of India. For the above stated reasons, this writ petition is

disposed of along with connected CMA(s) in the following manner By issuance of writ of certiorari the declaration u/s 6 and Notifications under

Sections 9, 9(a) and 17 of the State Land Acquisition Act to the extent of petitioner are quashed. Respondents are directed to proceed in the

matter in accordance with law contained in the State Land Acquisition Act. Petitioner is directed to file objections within two weeks from today

before the Collector to the Notification issued u/s 4 of the State Land Acquisition Act and the Collector concerned is directed to proceed in the

matter in accordance with the law contained in Section 5(a) and related applicable provision(s).

It is further provided that the possession of the land of the petitioner shall be taken strictly in accordance with the provisions of State Land

Acquisition Act.