Requirement Of Publishing Notification U/S 4 Land Acquisition Act In Regional Language Newspaper Can Be Dispensed With If No Such Widely Circulated Newspaper Exists: J&K And Ladakh High Court

The Court further held that the earlier Division Bench judgment quashing the acquisition proceedings on the ground that the notification had not been published in a Kashmiri-language newspaper suffered from an error apparent on the face of the record and was liable to be reviewed.

The Court was hearing a review petition filed by the Union Territory of Jammu and Kashmir seeking review of a judgment whereby a Division Bench had quashed acquisition proceedings initiated for acquisition of land for the Islamic University of Science and Technology, Awantipora (“IUST”), on the ground that the notification issued under Section 4(1) of the J&K Land Acquisition Act had not been published in a newspaper in the regional language.

A Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar observed: “We can take judicial notice of the fact, and as a matter of fact this position is not disputed by learned counsel for the parties, that the regional language of the locality in question is Kashmiri and there is hardly any newspaper published in Kashmir in the Kashmiri language having wide circulation in the area.”

The Court further observed: “In the absence of any daily newspaper published in the Kashmiri language having wide circulation in the area in question, the requirement of publishing notification under Section 4(1) at least in one newspaper in the regional language is to be taken as dispensed with.”

Senior AAG Mohsin Qadri appeared with Advocate Maha Majeed for the review petitioners. Senior Advocate G.A. Lone appeared with Advocate Mujeeb Andrabi for the respondents.

Background

The case arose out of acquisition proceedings initiated in 2017 for the acquisition of land measuring 46 kanals and 12 marlas situated at Awantipora for the creation of additional infrastructure for IUST.

Pursuant to an indent placed by the Registrar of IUST, the Collector issued a notification under Section 4(1) of the J&K Land Acquisition Act on 02.05.2017. Some of the landowners filed objections under Section 5-A of the Act, though they did not dispute the public purpose behind the acquisition and instead sought alternate land or adequate compensation.

Thereafter, notifications under Sections 6, 7 and 17 of the Act were issued, and urgency provisions were invoked. Following further proceedings, the Collector passed a final award on 20.02.2020.

Subsequently, several landowners challenged the acquisition proceedings through writ petitions, contending inter alia that the Section 4 notification had not been validly published in accordance with Section 4(1) of the Act since it was not published in a newspaper in the regional language.

A Division Bench of the High Court accepted the challenge and quashed the acquisition proceedings in 2021.

The Union Territory thereafter approached the Supreme Court, which partly allowed the appeal and granted liberty to file a review petition before the High Court on the issue relating to the valid publication of the Section 4 notification.

Court’s Observation

At the outset, the Court examined the scope of review jurisdiction and observed that though the Code of Civil Procedure does not strictly apply to writ proceedings, the principles governing review under Order XLVII CPC can be applied.

The Court noted that the review petitioners sought to bring their case within the ambit of “error apparent on the face of the record”, contending that the earlier Division Bench failed to appreciate substantial compliance with Section 4(1) of the Land Acquisition Act.

The Court examined Section 4(1) of the J&K Land Acquisition Act, which requires publication of the acquisition notification by affixation at convenient places and by publication in two daily newspapers having the largest circulation in the locality, one of which must be in the regional language.

The Court found from the record that public notice had been duly affixed at conspicuous places in the locality through the Patwari concerned and that publication had also been made in two newspapers, namely Daily Aftab and Kashmir Images.

The Court, however, noted that both newspapers were in English and not in Kashmiri, which was the regional language of the locality.

The Division Bench held that the requirement of publication in a regional language newspaper could not be mechanically enforced where no such newspaper with wide circulation existed in the locality.

The Court observed: “In that sense and eventuality, the doctrine of necessity would come into play.”

The Court held that the object of publication under Section 4(1) is to ensure that interested persons become aware of acquisition proceedings and are afforded an opportunity to object.

The Bench noted that the acquisition notice had, in fact, come to the knowledge of landowners since four of them had filed objections under Section 5-A of the Act.

The Court observed that the respondents were residents of the same village where acquisition proceedings were initiated and that they were fully aware of the acquisition process.

The Court further observed that private negotiations regarding compensation had also been conducted before the District Price Negotiation Committee, and the villagers had participated in such negotiations.

The Bench held: “Viewed from any angle, we are of the considered opinion that there was substantial compliance with Section 4(1) of the Land Acquisition Act and the mere fact that the notification was not published in a newspaper published in the regional language like Kashmiri does not alter the position.”

The Court distinguished the Supreme Court judgment in J&K Housing Board v. Kunwar Sanjay Krishan Koul (2011), relied upon by the respondents, and instead placed reliance upon Special Deputy Collector, Land Acquisition, CMDA v. J. Sivaprakasam (2011).

The Court reproduced paragraphs of J. Sivaprakasam and reiterated that acquisition proceedings would not automatically stand vitiated merely because publication was not made in newspapers having the widest circulation, particularly where interested persons otherwise had notice and had participated in proceedings.

The Court held that the earlier Division Bench failed to appreciate these aspects and consequently committed an error apparent on the face of the record.

The Court reiterated that though the modes of publication prescribed under Section 4(1) are mandatory, substantial compliance would still exist if interested persons were otherwise made aware of acquisition proceedings and no prejudice was caused to them.

The Bench observed: “The object of publication of a notice is to apprise the interested persons about the process of acquisition and provide them an opportunity to object to it.”

The Court held that in the present case, the respondents had adequate knowledge of the acquisition and therefore the acquisition proceedings could not be invalidated merely because publication had not been made in a Kashmiri-language newspaper.

Conclusion

The High Court held that there had been substantial compliance with Section 4(1) of the J&K Land Acquisition Act and that the earlier Division Bench judgment invalidating the acquisition proceedings on the ground of non-publication in a regional language newspaper suffered from an error apparent on the face of the record.

Accordingly, the review petition was allowed, the judgment dated 28.10.2021 was recalled, and the writ petitions challenging the acquisition proceedings were dismissed.

Cause Title: UT of Jammu & Kashmir & Ors. v. Khalid Jehangir Bhat & Ors.

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