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2021 Supreme(J&K) 508

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Pankaj Mithal, Javed Iqbal Wani, JJ.
Ashok Kumar Padha – Petitioner
Versus
State of J&K and Ors. – Respondents
OWP No.822 of 2016 c/w OWP No.290 of 2016
Decided On : 31-12-2021

Advocates:
Advocate Appeared:
For the Petitioner: in OWP No.822/2016:Sh. Vikram Sharma, Sr. Advocate with Sh. Sachin Dev Singh, Advocate
For the Petitioner: in OWP No.290/2016:Sh. Abhinav Sharma, Sr. Advocate with Mr. Vishal Sharma, Advocate
For the Respondent: Nos.1 to 5: Sh. S.S. Nanda, Sr. AAG
For the Respondent: No.6:Sh. Adarsh Sharma, Advocate

Headnote:

J&K Land Acquisition Act, SVT. 1990-Sections 4, 5A and 6-Acquisition of land-Petitioners herein have had raised as many as six objections in response to Section 4 notification-Record reveals that Collector has not considered the said objections raised by petitioners in line with sub-section (2) of section 5A, but ironically has held objections not maintainable liable to be rejected instead of making a recommendation thereto for taking such decision by Government-There seems to be no application of mind by Collector in discharge of his statutory obligation as contained in Section 5A of the Act-Right under Section 5A is not merely statutory, but also has flavour of fundamental right. (Paras 14 and 15)

Result-Petitions allowed.

ORDER :

Javed Iqbal Wani, J.-The instant petitions raise akin and analogous issues, as such, are being taken up for final disposal at this stage.

2. In the first place facts those emerge from the petitions in hand are that the petitioners claim to be owner in possession of landed property situated at Village Hut, Katra, District Reasi. Some residential houses are also stated to have been constructed upon the portion of the land being owned and possessed by the petitioners, besides having agriculture land abutting thereto as a source of their livelihood.

3. A notification dated 11.08.2014 under Section 4 of the J&K Land Acquisition Act, SVT. 1990 (for brevity ‘the Act’) is stated to have been issued by the respondent No. 5 -Collector Land Acquisition, (Assistant Commissioner (Rev) Reasi) for construction of Heliport at village Hut, inviting therein objections from the land owners/interested persons. The petitioners state to have submitted their objections in response to the said notification.

4. It is being stated that the respondent No. 5 without granting any opportunity of being heard to the petitioners in person and without dealing with each and every objection submitted by the petitioners forwarded a report dated 15.01.2016 to respondent No. 4-Deputy Commissioner, Reasi who is stated to have forwarded the said report on 15.01.2016 itself to respondent No. 3-Divisional Commissioner, Jammu to respondent No. 1 thereafter.

5. It is being next stated that the respondent No. 1 arbitrarily and mechanically issued notification dated 05.02.2016 under Section 6 of the Act declaring therein that the land was required for the public purpose of construction of Heliport at Village Hut, thereby directing respondent No. 5 to take order of acquisition under Section 7 of the Act. Respondent No. 5 thereafter is stated to have issued notification dated 16.02.2016 under Section 9 & 9A of the Act calling upon the land-owners to attend his office with their respective interests and particulars of claim to compensation and objections.

6. It is being contended in the grounds urged in the petitions that the respondents undertook the process of acquisition in a mechanical and arbitrarily manner, in that, the respondent No. 5 without granting an opportunity of being heard to the petitioners in person and without adverting to each and every objection raised by the petitioners to the proposed acquisition, failed to discharge the statutory obligations/duties provided under Section 5A of the Act and that the respondent No. 1 without applying his mind and without deriving objective satisfaction and considering the fact that the respondent No. 5 had not dealt with each and every objection raised by the petitioners in response to notification dated 11.08.2014 issued notification under Section 6 of the Act.

7. Fundamentally, It is being urged inter alia, in the grounds of challenge that the acquisition proceedings in general and notification dated 11.08.2014 issued under Section 4 (1) of the Act by respondent No. 5 read with notification dated 05.02.2016 issued by respondent No. 1 under Section 6 of the Act and also notification dated 16.02.2016 issued by respondent No. 5 under Section 9 & 9A of the Act are arbitrary, bad and unconstitutional besides being not for the public purpose.

8. Per contra, respondents 1 to 5 in their objections filed in opposition to the petitions have resisted and controverted the contentions raised and grounds urged in the writ petitions and seek dismissal of the petitions on the premise that the petitions are not maintainable, in that, there has been no violation of any of the legal, fundamental or statutory rights of the petitioners and that the proceedings for acquisition of land in question have been initiated for public propose i.e., for construction of Heliport on placement of an indent by Shri Mata Vaishno Devi Shrine Board, Katra for the land measuring 286 Kanals 13 Marlas (local) 191 Kanals 16 Marlas (standard) upon issuanc

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