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IN THE HIGH COURT OF JAMMU AND KASHMIR AT Jammu
D.D. Thakur, J.
Balkrishan Dutta - Appellant
Versus
State - Respondent
Writ Petition No. 87/1970
Decided On : 04 March, 1974
LAND ACQUISITION - NOTIFICATION UNDER SECTION 4 OF THE ACT - PUBLICATION - MANDATORY REQUIREMENT - NON-COMPLIANCE - INVALIDITY OF ACQUISITION PROCEEDINGS - SECTION 5A - DISPENSING WITH APPLICATION - NO DISTINCTION BETWEEN PROCEEDINGS.
Fact of the Case:
Petitioner challenged two notifications issued under the Land Acquisition Act, 1894, alleging non-compliance with mandatory provisions and mala fide exercise of power. The first notification under Section 4 of the Act specified the acquisition of land for a public purpose, while the second notification under Section 17 authorized the Collector to take possession of the land and dispensed with the application of Section 5A of the Act.
Finding of the Court:
The court found that the petitioner's challenge to the notifications on the ground of mala fide exercise of power was not pressed during the hearing. The court focused on the validity of the notification under Section 4 of the Act, specifically examining whether the mandatory provisions of the Section were complied with.
Issues: 1. Whether the petition should be dismissed on the ground of laches by the petitioner. 2. Whether the notification under Section 4 of the Act was invalid due to non-observance of the provisions of the Section.
Ratio Decidendi: 1. The court rejected the plea of laches, holding that the petitioner's delay in filing the writ petition was explainable due to his efforts to obtain relief from the authorities through representations and applications. The court emphasized that the right to approach the court should not be extinguished solely due to delay, and that the consequences of delayed filing must be weighed against the hardship faced by the aggrieved petitioner. 2. On the merits, the court held that the notification under Section 4 of the Act was invalid due to non-compliance with the mandatory provisions of the Section. The court found that there was no public notice of the substance of the notification given at convenient places in the locality where the land was situated, as required by the Section. The court rejected the argument that the provisions of Section 4(1) become directory when the provisions of Section 5A are dispensed with, relying on the Supreme Court's decision in Narinderjit Singh v. The State of U.P. (AIR 1973 SC 552).
Final Decision: The court allowed the petition, setting aside the notifications under Section 4 and Section 17 of the Act. The court directed the respondent to pay costs to the petitioner, assessed at Rs. 200.
2. The petition was originally filed on 16-11-1970. Subsequently leave was sought to amend the petition. On the leave being granted the amended petition was filed on 13-4-1971. In the amended petition the challenge to the aforementioned notifications was founded on the following grounds: -
(1) That the mandatory provisions of Section 4 of the Act have not been complied with; and
(2) That both the notifications were mala fide inasmuch as no public purpose existed nor was any urgency involved so as to warrant dispensing with the application of Section 5-A of the Act or taking action under Section 17 of the Act.
3. In the counter-affidavit filed on behalf of the respondent it has been stated that land measuring 657 kanals comprehensively described in the notification issued under Section 4 of the Act was needed for a public purpose viz., for construction of JaniPura Colony; that due to paucity of funds only a portion of the land could be utilized for the purpose; that the development of the colony had to be undertaken in a phased manner therefore the land belonging to the petitioner was also included in the notification under Section 4 of the Act and that the urgency for acquisition was felt to avoid haphazard and indiscriminate growth of the area by private land owners. According to the respondents even though the possession of the land was not taken over formally till March 1971, yet the possession must be deemed to have passed on the State on the expiry of the period of 15 days from the date of notice under Section 9 of the Act. Regarding the validity of the notification under Section 4 it has been stated that the notification was properly issued and validly served in the manner provided in Section 4 itself. It has further been contended that the existence of urgency of the public purpose is not subject to judicial review and therefore the court had, no jurisdiction to go into the question of the existence of the purpose of acquisition and the urgency necessitating taking over the possession of the land under Section 17 of the Act. Laches have also been pleaded as a ground for defeating the petition.
4. In the course of the hearing, Mr. H. L. Bhagotra, counsel for the petitioner, has confined his arguments only to one point namely that the notification under Section 4 of the Act was invalid as the same did not conform to the mandatory provisions contained in that Section. The contention that the two notifications were mala fide as having been issued on the basis of irrelevant considerations was not pressed at the hearing by the counsel for the petitioner.
5. The only two questions therefore which the court is called upon to decide are firstly, whether the petition should be dismissed on the simple ground that the petitioner has been guilty of laches in. filing the writ petition and secondly in case the first question is replied in favour of the petitioner whether the noti
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