Jammu & Kashmir & Ladakh High Court: Can't Claim Prejudice Due To Non-Issuance Of Land Acquisition Notification In Regional Language After Raising Objection

The Jammu & Kashmir and Ladakh High Court has held that no prejudice can be claimed to have been caused in case Notice was not issued in the regional language under the Jammu and Kashmir Land Acquisition Act if the party was aware of its notification and objection was raised against it.

The Court was considering an Intra-Court Appeal against an order of the single judge whereby the Writ Petition challenging the notification issued under Section 4(1) of the Jammu and Kashmir Land Acquisition Act.

The Division Bench of Justice Sanjeev Kumar and Justice Vinod Chatterji Koul held, "......we are of the considered opinion that the appellant who had proper notice of the preliminary notification issued by respondent no. 4 and had objected to the proposal of acquisition by filing his objections has suffered no prejudice by failure of the Collector to publish the notification, in a Daily newspaper in the regional language. One of the objectives of notifying the proposal of acquisition under Section 4(1) of the Act i.e. to allow the interested person to object to the acquisition, already stood achieved."

The Appellant was represented by Advocate G.A. Lone while the Respondent was represented by Senior Additional Advocate General Mohsin Qadri.

Facts of the Case

A piece of land was sought to be acquired for construction of Science College and a notification under Section 4(1) of the Act for acquisition was issued. Aggrieved, the Appellant challenged the said notification on the ground that the subject land was an evacuee property leased out to the Appellant by the Custodian General, Jammu and Kashmir, Srinagar. The Appellant had started construction of a school building with due permission. While the construction was going on, the impugned notification came to be issued.

It was challenged inter alia on the ground that the notification has not been published in the manner prescribed under Section 4 of the Act. It was argued that the authority concerned was under an obligation to publish the notification in the locality where the land was situated by affixing a public notice at convenient places in the locality. The Notice was also required to be published in two Daily Newspapers having the largest circulation in the locality, out of which, at least, one has to be in the regional language.

Reasoning By Court

The Court agreed with the conclusion of the Writ Court that the Appellant being aware of the impugned notification and having filed objections thereto cannot be permitted to find fault with the impugned notification on the ground that the same has not been published by following all the modes prescribed in sub-section (1) of Section 4 of the Act.

The Court further referred to Supreme Court's decision in Special Deputy Collector, Land Acquisition, CMDA v. J. Sivaprakasam and others, (2011) wherein it was held that total non-compliance with the requirements of Section 4(1) of the Act cannot effect the validity of preliminary notification or the consequent proceedings where the person aggrieved was well aware of the issuance of notification and had responded to the said notification by filing his objections.

"It is true that the notification as mandated by Section 4(1)(b) of the Act has not been published in the regional language and that may be pointed as a shortcoming in the due publication of the notification. However, in view of the fact that the appellant had got the knowledge of publication of the notice well in time and had also submitted his objections to the proposal for acquisition of the subject land, it does not lie in the mouth of the appellant to contend that he has been seriously prejudiced by the failure of respondent no. 4 to publish a notice in the regional language. It is also not the case of the appellant that he can understand only the regional language and cannot read and write or understand English or Urdu. As is held by the Hon’ble Supreme Court in the case of J. Sivaprakasam, the acquiring authority need not prove actual notice of the proposal to acquire under Section 4 of the Act on the person challenging the acquisition. Such notice can also be by way of implied notice or constructive notice," it observed.

The Appeal was accordingly dismissed.

Cause Title: Gazanfar Ali vs. Union Territory of Jammu & Kashmir

Appearances:

Petitioner- Advocate G.A. Lone, Advocate Mujeeb Andrabi

Respondent- Senior Additional Advocate General Mohsin Qadri, Assisting Counsel Maha Majeed, Senior Advocate Syed Faisal Qadri, Advocate Sikand er Hayat

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