Back
2021 Supreme(J&K) 349
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
PANKAJ MITHAL, PUNEET GUPTA, JJ.
Sh. Sheikh Reyaz Hamid & Others - Petitioner
Versus
State of J&K and Others - Respondent
OWP No. 1634 of 2016
Decided on : 23-12-2021
Advocate Appeared:
For the Appellant :Sh. R.K.S.Thakur, Advocate
For the Respondent: Sh. S.S.Nanda, Sr. AAG Sh. Vipan Gandotra
Point of Law: Object of the law of preventive detention is not punitive, but is only preventive.
Headnote:
Preventive detention - Detention order - Grounds of detention - allegations mentioned in grounds of detention have no nexus with the detenu and have been fabricated by the police in order to justify its illegal action of detaining the detenu.
Finding of the Court:
Essential concept of preventive detention is that detention of a person is not to punish him for something he has done, but to prevent him from doing it. Its basis is satisfaction of the Executive of a reasonable probability of detenu acting in a manner similar to his past acts, and preventing him by detention from so doing. Preventive detention, an anticipatory measure, is resorted to when the executive is convinced that such detention is necessary to prevent a person detained from acting in a manner prejudicial to certain objects which are specified by the law-In preventive detention no offence is proved, and justification of such detention is suspicion or reasonable probability. Order of detention is based on a reasonable prognosis of future behaviour of a person based on his past conduct in light of surrounding circumstances. The power of preventive detention is exercised in reasonable anticipation-provisions of the Section 8, thus, clearly provide that it is the satisfaction of the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list.
Result: Petition dismissed
JUDGMENT :
PANKAJ MITHAL, J.
1. Heard Sh. R.K.S.Thakur, learned counsel for the petitioners and Sh. S.S.Nanda, learned Senior Additional Advocate General for respondent Nos. 1 to 5 and Sh. Vipan Gandotra, learned counsel for the respondent No. 6.
2. The petitioners are 38 in numbers. All of them are aggrieved by the acquisition of their land measuring about 49 kanals and 17 marlas situate in village Devgole Tehsil Banihal District Ramban which has been notified for acquisition for the four lanning of the National Highway.
3. The petitioners have thus invoked the extra-ordinary writ jurisdiction of this Court seeking for quashing of the following:-
(i) Notification dated 2nd June 2008 issued under Section 4(1) of the J&K Land Acquisition Act Samvat 1990 (hereinafter referred to as ‘the Act’);
(ii) Notification dated 21st December 2009 issued Section 6 of the Act;
(iii) Public Notice dated 9th January 2010 issued under Sections 9 and 9-A of the Act;
(iv) Tentative award dated 24th February 2010;
(v) Notification dated 17th October 2011 issued under Section 17 of the Act ; and
(vi) The final award dated 5th November 2016 passed under Section 11 of the Act.
4. The basic ground on which the above prayers have been made is that the entire proceedings of acquisition are bad in law and have lapsed by virtue of Section 11-B of the Act inasmuch as no final award was made within a statutory period of two years from the date of the declaration made under Section 6 of the Act.
5. The defence is that since the urgency provision of Section 17 was invoked and the possession of the land was taken over, the land had vested in the State, in which circumstance Section 11-B of the Act would have no application.
6. It may be important to note that the provisions of the Act are pari materia with the Land Acquisition Act 1894. The provisions of Section 11-B of the Act are equivalent to Section 11-A of the Land Acquisition Act., 1894.
7. Section 11-B of the Act which is relevant for our purpose in this case, is reproduced herein below:-
“[11-B. Period within which an award shall be made. - The Collector shall make an award under Section 11 within a period, of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of land shall lapse:
Provided that in case where the said declaration has been published before the commencement of the State Land Acquisition (Amendment) Act, 1997, the award shall be made within a period of two years from such commencement.”
8. The aforesaid provision mandates that the Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration under Section 6 of the Act and in case no award is made within the stipulated period, the entire proceedings for acquisition shall lapse. This is subject to an exception carved out by the Act where the land vests in the State consequent to invocation of urgency clause under Section 17 of the Act. Thus, in view of the aforesaid provision and the exception, we have to see if the proceedings of the acquisition have lapsed by virtue of Section 11-B of the Act if the award has not been made within the stipulated time.
9. In order to determine the above aspect of the matter, it would be appropriate to note some of the relevant and important dates which are material for the above purpose. The said dates are as under:-
(1) Section 4 Notification dated 02.06.2008
(2) Section 6 Notification dated 21.12.2009
(3) Section 17 Notification dated 27.10.2011
(4) Possession (alleged) dated 20.09.2011
(5) Final award dated 05.11.2016
10. The above dates reveal that the two crucial dates for the purposes of applying Section 11-B of the Act are the date of notification issued under Section 6 of the Act, i.e., 21.12.2009 and the date of the final award, i.e., 05.11.2016.
11. On the simple consideration of the above two dates in context with Section 11-B of the Act, it would be evident th
