Excelsior Correspondent
Srinagar, Apr 1: Observing that no official has the right to enter the proprietary land which is proposed to be acquired without proper procedure, High Court has directed the authorities to initiate a fresh process of acquisition of land of the petitioner and provide adequate compensation to the land owners in accordance with law and rules governing the field.
Observing that right to hold immovable property continues to be a fundamental right in Jammu and Kashmir and no person shall be deprived of his/ her property, except in accordance with the procedure prescribed under law, the Division Bench of Justice Ali Mohammad Magrey and Justice Puneet Gupta quashed the notification of land acquisition along with draft award for compensation and directed the authorities to initiate fresh process of acquisition.
Court while also directing for providing adequate compensation to the land owners said that no property shall be compulsorily acquired or requisitioned for any public purpose, saved by authority of law.
While taking the view, court said, it supports the judicial dictum rendered by the Division Bench of this Court. Court allowed petition of land owners and quashed the notification issued under Section 4(1) of the J&K Land Acquisition Act, along-with any other subsequent notification(s) issued in this behalf, including draft award.
Court directed initiation of fresh process for acquisition of land in accordance with the law and the rules governing the subject to ensure adequate compensation to the petitioners.
The case set up by the petitioners is that they claim to be owners in possession of land in question along with a double storied house and single storied Kitchen situated at Buchwara, Srinagar. It is pleaded that apparently a notification under Section 4(1) of the J&K Land Acquisition Act was issued by the authorities for acquisition of the said landed property, however, no such notification was published by the respondents in the Government Gazette and due to non-publication of the aforesaid notification in the Government Gazette, they remained completely unaware about the issuance of such notification.
Court after having heard both the parties and perused the record said, that in Jammu and Kashmir, it is the J&K Land Acquisition Act which authorizes for compulsory acquisition of the immovable property for any public purpose and it appears that the mandate of Section 4(1) of the J&K Land Acquisition Act has not been followed by the respondents while acquiring the property of the petitioners, inasmuch as, admittedly, the notification has not been published in two daily Newspapers having wide circulation.
Court said that there is clear breach of mandate of Section 4(1) of the Land Acquisition Act in the process of proposed acquisition of property, one of the fundamental issues of legal importance, in terms of Section 4(2) of the Land Acquisition Act, is that after the Collector concerned notifies any land in the manner prescribed under Section 4(1), being needed or likely to be needed for any public purpose.
Court added that it only then becomes lawful for any officer/official, either generally or specially authorized by the Government in this behalf, to enter upon the said land. “The Officer/ Official, in terms of the J&K Land Acquisition Act, can enter into the land proposed to be acquired only after notification is issued and published in terms of Section 4(1) of the Land Acquisition Act”, court said.
“Moreover, when there is non-compliance of statutory provisions which affects the fundamental right of a person to hold the immovable property, the acquisition proceedings are rendered illegal and unconstitutional. The purpose of publication of the notification in the process of acquiring any private property for public purpose, as is mandated by the J&K Land Acquisition Act, is twofold, first, to ensure that adequate publicity is given so that the landowners and persons interested will have an adequate opportunity to file their objections and, second, to give the landowners/ occupants a notice that it shall be lawful for any Officer/ official authorized by the Government to carry out the activities enumerated in the J&K Land Acquisition Act”, reads the judgment.
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