Point of Law: Acquisition of Land - Grant of damages - Notification under Section 4 of the Act was not in consonance with the provisions of the Act.

JUDGMENT :

PANKAJ MITHAL, J.

1. The instant Letters Patent Appeal (LPA) has been preferred by the appellants against the Judgment and order dated 28.12.2020 passed by the learned Single Judge of this Court dismissing their writ petition under Article 226 of the Constitution of India challenging the land acquisition proceedings.

2. The land in dispute which is under acquisition is about 03 kanals 08 marlas of Khasra No. 134 min of village Jhajjar Kotli in District Jammu.

3. One Mr. Kakru owned about 06 kanals and 14 marlas of land. On his death, the said land was inherited by his son Dharam Chand and two daughters. The said Dharam Chand and his successors were running a Dhaba over it for many years. A part of this land measuring about 03 kanals and 6 marlas including the land of the Dhaba was acquired. The remaining land continued to be owned and possessed by the petitioners and it is said that the petitioner Nos.1 and 2 established a new Dhaba over the part of the remaining land.

4. Now, this remaining land has been notified to be acquired vide Notifications dated 30.04.2016 and 27.01.2017 issued under Sections 4 and 6 respectively of the Jammu and Kashmir Land Acquisition Act, SVT, 1990 (for short ‘the Act’) which are in pari meteria with the provisions of the land Acquisition Act, 1894.

5. An award in respect of the said acquisition has been passed on 10.07.2017 under Section 11 of the Act.

6. The petitioners by invoking the writ jurisdiction not only challenged the above notifications and the award but also notices issued under Section 9/9-A of the Act as well as the subsequent notice dated 07.02.2020 by which they were directed to remove their structures and to vacate the land as the same has already been acquired.

7. In assailing the aforesaid acquisition proceedings, on behalf of the petitioners, it was contended that their running business of Dhaba is not to be uprooted. The land is not being acquired for the public purpose but for the purposes of a Company, National Highway Authority of India but without following the provisions of Chapter VII of the Act. The Notification under Section 4 of the Act has not been published in a proper manner as contemplated under the Act and that the newspapers in which the publication is alleged to have been made were of English only and were not having wide circulation in the locality. This has deprived the petitioners from filing objections under Section 5-A of the Act.

8. The Writ Court dismissed the writ petition holding that the acquisition is for providing ‘way side amenities’ namely, of parking trucks along the four laning National Highway and as such is for public purpose. The public purpose has to be given precedence over private interest. The acquisition is not for any Company. The purpose of the publication of the Notification under Section 4 is to give notice of the proposal of acquisition to the affected persons and that such a notice can either be constructive or by way of implication and even if it is accepted for a moment that the notification was not published in conformity with the provisions of the Act, it is not necessary for the court to interfere with the acquisition which is for the public purpose.

9. The learned Single Judge in observing as above, cited various precedents from the decisions of the Supreme Court and concluded his findings accordingly.

10. We heard Shri O.P. Thakur, Senior counsel assisted by Shri R.K.S. Thakur, learned counsel for the appellants and Shri S.S. Nanda, Senior Additional Advocate General for respondent Nos. 1 to 5.

11. Shri Thakur has attacked the impugned judgment basically on three counts. First, the acquisition has been done at the behest of the National Highway Authority of India and as such is for the purposes of the Company. Accordingly, acquisition ought to have been under Chapter VII of the Act. In fact he even contended that the land for National Highway Authority of India should have been acquired under the special Act, i.e. National Hi