Srinagar, Dec 14: The High Court of Jammu & Kashmir and Ladakh has ruled that the Deputy Commissioner (DC) or District Collector is neither the government nor the authority competent to record the satisfaction as to whether a particular land is needed for public purpose or not.
The court passed the rulings in a plea by private landowners challenging the notifications issued by Collector Land Acquisition under Section 4(1) of J&K Land Acquisition Act, Svt. 1990 on April, 20, 2011 and District Collector Srinagar under Section 6 of the Act on October, 10, 2011, wherein the private land of the petitioners was acquired for public purpose “for widening of lawn of the Evacuee Property Complex at Kathi Darwaza, Rainawari in Estate Nowhatta Srinagar”.
A division bench of Justices Sanjeev Kumar and Moksha Khajuria Kazmi while quashing the notifications noted that Section 4(1) notification issued by the Collector Land Acquisition on April, 20, 2011, and the declaration issued by the District Collector, Srinagar, on October, 10, 2011, under Section 6 and 7 of the Act of 1990 are not sustainable for more than one reasons.
The court held that whenever the land in any locality is needed or likely to be needed for public purpose, the Collector Land Acquisition, shall notify it through a public notice to be affixed at convenient places in the said locality.
It ruled that the Collector Land Acquisition shall also cause it to be known by beat of drum and through the local Panchayats and Patwaris and in two daily newspapers having the largest circulation in the said locality, and one of such newspapers at least shall be in the regional language.
The bench pointed out that as per the petitioners no such publication in any newspaper in the regional language was ever published, nor was any public notice affixed at convenient places in the locality concerned
The petitioners, who claim to be the owners in possession of land measuring 4 kanals and 5 marlas situated in Estate Nowhatta near Kathi Darwaza, Rainawari, Srinagar, contended that their land was being acquired by the respondents not for any public purpose, but on account of mala fide intentions of the then Collector Land Acquisition.
They submitted through their counsel, M.A Qayoom that out of the said land, a piece of land measuring 2 kanals and 15 marlas was sought to be acquired by the Collector Land Acquisition (Additional Deputy Commissioner), Srinagar, under the provisions of J&K Land Acquisition Act, Svt. 1990.
It was contended by the petitioners that no proper publication of the Section 4(1) notification was issued, and, as such, the petitioners were deprived of an opportunity to oppose the acquisition and the notice issued under Section 4(1) of the Act of 1990.
They further submitted that the Section 4(1) notification was followed by a declaration issued by the District Collector, Srinagar, under Section 6 of the Act of 1990 vide Notification of 2011 stating that the District Collector, Srinagar, was satisfied after considering the report of the Collector Land Acquisition, Srinagar, that the subject land was required for public purpose i.e., “for widening of lawn of the Evacuee Property Complex at Kathi Darwaza, Rainawari in Estate Nowhatta Srinagar.”
Accordingly, the Government in the Revenue Department also invoked Section 17 of the Act of 1990, directing the Collector Land Acquisition, Srinagar, to take over the possession of the said land required for public purpose subject to fulfillment of conditions prescribed under Section 9 (2) and 17-A of the Act of 1990, they said.
The petitioners also contended that the District Collector, who may have been authorized to issue declaration under Section 6 and 7 of the Act, was not and could not have been delegated the powers of the Government to record satisfaction that the subject land was needed for public purposes.
The court underscored that it is true that declaration under Section 6 to the effect of land needed for public purpose can be made under the signature of the Revenue Minister or some other officer(s) duly authorized on his behalf.
It noted that it is equally true that in the exercise of powers conferred under Sub-Section 1 of Section 6, the government has authorized Financial Commissioner (Revenue), Divisional Commissioners and Deputy Commissioners within their pecuniary jurisdiction to exercise the powers conferred by Section 6 and 7 of the Act of 1990.
The bench recorded that the issuance of declaration by the District Collector, Srinagar, in terms of its notification issued on October, 10, 2011, cannot be found fault with “as the same is within the jurisdiction and competence of Deputy Commissioner (District Collector), Srinagar.”
“However, the satisfaction that any particular land is needed for public purpose is to be recorded by the Government and Section 6 or for that matter, any other provision of the Act of 1990, does not permit delegation of such power by the Government to any other authority or officer,” the court ruled.
Allowing the plea, the bench observed that the District Collector, Srinagar, is not the Government either under Jammu and Kashmir General Clauses Act, Svt. 1997, nor could it be so construed in terms of the business Rules framed by the Government under Section 43 of the Constitution of Jammu and Kashmir, as it was applicable at the relevant point of time.
“Without going much deeper into the issue, suffice is to say that the Deputy Commissioner/District Collector is neither the Government nor the authority competent to record the satisfaction as to whether a particular land is needed for public purpose or not,” the court said.
Quashing the notifications, the court said, “all subsequent proceedings for acquisition undertaken by the respondents are also declared non-est in the eye of law, and therefore quashed.”
However, the bench clarified that the quashing of the acquisition proceedings initiated under the 1990 Act by this order would not come in the way of the respondents to acquire the subject land, if the same is needed for the public purpose by following strictly the provisions of Jammu and Kashmir Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, which is in force as on date.
