Partly allowed

Virender Pandoh v. State Th.Dy.Commssioner,Reasi and Ors.

J&K HC8 Sept 2021OWP/1329/2012

Case brief

AI extract

What is this about?

In a writ petition, the High Court held that a land acquisition declaration under Section 6 of the J&K Land Acquisition Act is void where the impugned notification was issued by a Deputy Commissioner without any independent record of satisfaction by the State Government regarding public purpose.

What did the court decide?

Declaration of notification No. 77/N/DC/Reasi dated 23.02.2011 as illegal, null and void; writ petition allowed.

Virender Pandoh Vs State Th.Dy.Commssioner,Reasi and Ors. — Land Acquisition | J&K HC (2021)

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Sr. No. 4

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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CJ Court

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Case: OWP No. 1329 of 2012

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Virender Pandoh

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…Petitioner(s)/Appellant(s)

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Through: Sh. Rahul Bharti, Sr. Advocate with Ms. Zoya Bhardwaj, Advocate. V/s

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State of J&K and others

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…. Respondent(s)

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Through: Sh. D. C. Raina, Advocate General with Sh. F. A. Natnoo, AAG

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CORAM:

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HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

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ORDER

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Heard Sh. Rahul Bharti, senior counsel assisted by Ms. Zoya Bhardwaj, learned counsel for the petitioner and Sh. D. C. Raina, Advocate General assisted by Sh. F. A. Natnoo, learned Additional Advocate General.

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The petitioner through the medium of this writ petition under Article 226 of the Constitution of India prays for issuance of an appropriate writ in the nature of the mandamus commanding the respondents to produce the entire record of the acquisition of land in connection with the Award No. COL/ADC/Rsi/12/304 dated 06.08.2012 and to declare the said proceedings as null and void in respect of the petitioner’s land measuring 22 kanals comprising Khasra No. 298 min and 299 min situate in Village Kotla Reasi.

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The petitioner inter alia contends that the notifications issued under Section 4 and 6 of the Jammu and Kashmir Land Acquisition Act 1990

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(hereinafter referred to as ‘ the Act ’) were not issued by the competent authority and that no satisfaction of the Government was recorded for acquiring the said land and as such, the entire proceedings stand vitiated in law.

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The respondents have filed objections stating that the aforesaid land has been acquired on the indent for acquisition forwarded by the Deputy Commissioner, Reasi who is ex-officio Vice Chairman of Shiv Khori Shrine Board. On the said requisition, the Collector Land Acquisition (Additional Deputy Commissioner) Reasi issued a notification under Section 4(1) of the Act on 22.01.2011. The interested persons were granted opportunity in terms of Section 5-A of the Act to file objections and a report was prepared by the Collector. The report was submitted to the Deputy Commissioner Reasi who in exercise of his power as per SRO 235 and 236 issued the declaration on 23.02.2011 under Section 6/7 of the Act. Thereafter final award was pronounced on 06-08-2012. The acquisition proceedings were drawn in accordance with the statutory provisions by the competent authority and there is no illegality in acquiring the land.

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To cut short the matter, let us examine the provisions of Section 4 and Section 6 of the Act so as to find out the essential requirement of law in publishing the said notifications and the competent authority that is empowered to issue and publish the said notification.

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First we deal with the notification issued under Section 6 of the Act inasmuch as it is the final declaration to acquire the land whereas the notification under Section 4 of the Act is simply a proposal.

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Section 6 of the Act reads as under:

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“6. Declaration that land is required for public purpose . ––

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(1) When the Government is satisfied after considering the report, if any, made under section 5-A, sub-section (2), that any particular land is needed for public purpose, a declaration shall be made to that effect under the signature of the Revenue Minister or of some officer duly authorised in this behalf :

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[Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid wholly or partly out of the public revenues or some fund controlled or managed by a local authority.]

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(2) The declaration shall be published in official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate areas and where a plan shall have been made of the land, the place where such plan may be inspected.

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(3) The said declaration shall be conclusive evidence that land is needed for a public purpose, and after making such declaration the Government may acquire the land in manner hereinafter appearing.”

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A plain and simple reading of Sub-section (1) of Section 6 which is relevant for our purpose reveals that a declaration under Section 6 has to be made when the Government is satisfied that the land is needed for public purpose and such a declaration is to be made under the signature of the Revenue Minister or of some other Officer duly authorized in this behalf. In other words Sub-section (1) of Section 6 of the Act envisages two essential requirements, namely,

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1. Recording of the satisfaction of the Government that the land is needed for public purpose; and

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1. Publication of a declaration under the signature of the Revenue Minister or of some officer duly authorized in this behalf.

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In respect of the above twin requirements of Sub-section (1) of Section 6 of the Act, it is to be noted that the satisfaction of the Government is one part of the requirement and the issuance of the declaration is the other part of it. The recording of the satisfaction has to be by the Government alone and not by any other person or authority whereas the issuance of the notification/declaration can be by the Revenue Minister or any other officer authorized. The power exercisable by the Revenue Minister can be delegated where as it is not so with regard to the power exercisable by the Government.

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In order to satisfy ourselves as to who has recorded the satisfaction that the land is needed for public purpose and who is the authority that had issued the declaration under Section 6(1) of the Act, we had called upon Sh. S. S. Nanda, Senior Additional Advocate General to produce the record. 11. The record has been produced and we have perused the same. 12. The record contains a Notification no. 77/N/DC/Reasi of 2011 alleged to have been issued under Sections 6 and 7 of the Act wherein the above land has been notified to be needed for public purpose of construction of building for tourist purpose at village Kotla Tehsil and District Reasi. It further states that the Deputy Commissioner/District Collector Reasi is duly authorized by the Government in Revenue Department vide SRO 235 to exercise the powers under Sections 6 and 7 of the Act and that he is satisfied after considering the report furnished by the Collector Land Acquisition (Additional Deputy Commissioner) Reasi dated 22.02.2011 that the land is needed for the public purposes. He is, therefore, making the declaration under Section 6 of the Act and directing to take out order for acquisition of the land.

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A reading of the aforesaid notification reveals that it has been issued by the Deputy Commissioner (District Collector) Reasi and that he himself has recorded satisfaction that the land is needed for public. The said satisfaction and declaration is said to have been made in the light of SRO 235 on being authorized by the Government.

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SRO 235 dated 11.08.2009 of the Revenue Department provides that the Government has authorized the Financial Commissioner (Revenue), Divisional Commissioners and Deputy Commissioners within their pecuniary jurisdiction for exercising the power under Sections 6 and 7 of the Act.

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15. The aforesaid SRO 235 is reproduced herein below for the sake of convenience:

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“In exercise of the powers conferred by of Section 6 & 7 of the Jammu and Kashmir Land Acquisition Act, Svt. 1990, (X of 1990) and in supersession of Notification SRO 689 dated 20^th December 1984, the Government hereby authorize Financial Commissioner (Revenue), Divisional Commissioners and Deputy Commissioners within their pecuniary jurisdiction for purpose of the said section.”

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The aforesaid SRO simply authorizes the Financial Commissioner (Revenue), Divisional Commissioners and Deputy Commissioners to exercise the power under Sections 6 and 7 of the Act in context with making the necessary declaration under Section 6(1) of the Act which otherwise is to be made under the signature of the Revenue Minister or from some other officer duly authorized on his behalf. It cannot be construed to mean that the Government has also delegated its power to record satisfaction to the aforesaid officers. In fact it cannot be so delegated in the absence of any recital to the effect.

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In view of the aforesaid SRO, the Deputy Commissioner has been delegated with the power of the Revenue Minister to make a declaration under Section 6(1) of the Act but the power exercisable by the Government for recording satisfaction as to whether the land is needed for public purpose or not has not been delegated obviously as it is not delegable. The satisfaction in this regard has to be of the Government. The record produced before us does not contain any document which records the satisfaction of the Government in this regard.

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The power to record satisfaction on behalf of the Government is not delegable to any officer. Then the question is who on behalf of the Government is supposed to record the satisfaction. The ‘ government ’ is not defined under the Act and, therefore, to understand the true import of the term ‘government’ we have to fall back upon the Jammu and Kashmir General Clauses Act , 1977 which was applicable to the State of Jammu and Kashmir at the relevant time. The said Act vide Sub-section (16) of Section 3 defines Government of India in relation to anything done or to be done after the commencement of Constitution of India to mean the President. So, Government of India means the President after the enforcement of Constitution. Likewise, in respect to the State it would mean the Governor of the State concerned.

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Sec 26 of the Constitution of J&K as was applicable at the relevant point of time provides that the executive powers of the State vest in the Governor and shall be exercised by him directly or through officer subordinate to him in accordance with the Constitution. Further sec 35 of the Constitution provides that all the functions of Governor except those under sections 36, 38 and 92 shall be exercised by him only on advice of council of Ministers. Further sec 43 of the

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constitution provides that the Governor shall make rules for the more convenient transaction of the business of the Government of State and for allocation among the Ministers of the said business.

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The Jammu and Kashmir Government Business Rules framed in exercise of powers under Section 43 and Sub-section (2) of Section 45 of the Constitution of Jammu and Kashmir provides for Business Rules for the allocation and disposal of business.

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Rule 4(1) of the said Rules provides that the business of the Government shall be transacted in the departments specified in the First Schedule and shall be classified and distributed between those departments as laid down therein. 22. The First Schedule provides for the various departments and the subjects assigned to each one of them. A perusal of the list of the said departments and the subjects would reveal that no department not even that of General Administration, Revenue or Rural Development include the subject of land acquisition. Therefore, the business of the Government in relation to acquisition of land is not prescribed to be dealt with by any of the department specified in the First Schedule.

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Rule 6 of the said Rules provide that each department shall consist of a Secretary to Government who shall be the official head of such department whereas Rule 7 provides that the Cabinet shall be collectively responsible for all executive orders issued in the name of Governor or the Government of Jammu

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and Kashmir whether such orders are authorized by an individual Minister or as the result of discussion at the meeting of the Cabinet or otherwise. Rule 11 provides that all orders or instruments made or executed by or on behalf of the

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Government of the State shall be expressed to be made or executed in the name of Governor or of the Government of Jammu and Kashmir.

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The Chief Secretary acts as a Secretary to the Cabinet and is responsible for all the departments and the subjects not covered by any of the departments mentioned in the First Schedule.

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The record does not contain any document recording the satisfaction of either the Governor or the Cabinet and that the satisfaction recorded by the Deputy Commissioner in the light of SRO 235 is no satisfaction on the part of the Government.

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In view of the aforesaid facts and circumstances, as declaration/notification under Sub section (1) of Section 6 of the Act has been issued by the Deputy Commissioner without there being any satisfaction recorded by the State Government that the land is needed for the public purpose, we find it difficult to

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sustain the said declaration.

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Accordingly, the declaration of notification No. 77/N/DC/Reasi dated

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23.02.2011 is hereby declared illegal, null and void.

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The writ petition is allowed as such.

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(RAJNESH OSWAL) (PANKAJ MITHAL) JUDGE CHIEF JUSTICE

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Jammu 08.09.2021 Sunita

Virender Pandoh v. State Th.Dy.Commssioner,Reasi and Ors.

Case brief

What is this about?

What did the court decide?

Virender Pandoh v. State Th.Dy.Commssioner,Reasi and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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