J&K Housing Board & Anr vs Kanwar Sanjay Krishan Kaul & Ors

J & K Housing Board & Anr. .... Appellant (s)

Versus

Kunwar Sanjay Krishan Kaul & Ors. .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) These appeals are directed against the judgment and

order dated 21.05.2009 passed by the High Court of Jammu

and Kashmir at Jammu in LPAOW No. 60 of 2007 CMP No. 91

of 2007 whereby the High Court dismissed the said appeal

filed by the J & K Housing Board - the appellants herein.

1 3) Brief facts:

(a) On 17.05.2003, the Collector, Land Acquisition (Land

Management Estates Officer), Jammu and Kashmir Housing

Board, Jammu (in short `the Board') issued a Notification

under Section 4 (1) of the Jammu & Kashmir Land Acquisition

Act, 1990 (hereinafter referred to as `the State Act') notifying

the land measuring 181 kanals 19 marlas was needed for the

public purpose by the Board, namely, for "development of

Housing Colony" at Village Ferozpur, Tehsil Tangmarg, District

Baramulla and calling for objections, if any, within 15 days

from the date of publication of the said notification. The

aforesaid notification was published in the Himalayan Mail

newspaper on 21.05.2003 and in the Greater Kashmir

newspaper on 22.05.2003 in the State of Jammu and

Kashmir. Again, on 04.06.2003, the said notification was

published in two daily newspapers. On the very same day,

notice under Sections 5 and 5-A of the State Act was issued to

all land owners for hearing of objections vide Office Order No.

HB/LMEO/83-85 directing them to remain present at the spot

on 16.06.2003 at 12.30 p.m. On 09.06.2003, the Collector

2

issued an Addendum vide office order No. HB/LMEO/87-96

for acquiring additional land of 3 kanals 15 marlas. On

11.06.2003, a corrigendum was issued with regard to the said

Addendum stating therein that the measurement of land

sought to be acquired was not correctly calculated and it may

be read as 185 kanals 05 marlas instead of 185 kanals 14

marlas and objections, if any, may be filed within 15 days of

the issuance of the said corrigendum.

(b) On 16.06.2003, none of the owners was present on the

spot except some paid labourers/Chowkidars who were

looking after the said land. On 24.06.2003, the Collector,

LMEO submitted a letter to the Deputy Commissioner (District

Collector), Baramulla vide office letter No. HB/LMEO/120-22

for recommending the case to higher authorities for issuance

of declaration under Sections 6, 7 and 17 of the State Act. On

03.07.2003, the Deputy Commissioner directed the Collector

to take action in accordance with the Revenue Department

Circular No. 13/8-REV/(LAK)99/2000 dated 23.05.2000. On

16.07.2003, the respondents sent a telegram to the Tehsildar,

Tangmarg, who in turn, forwarded the same to the office of the

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Collector on 19.07.2003. In accordance with the directions of

the Deputy Commissioner (District Collector), the Collector,

vide letter No. HB/LEO/158-60 dated 22.07.2003, requested

the Financial Commissioner (Revenue) J & K Government to

recommend the case to higher authorities for issuance of

declaration under Sections 6 , 7 and 17 of the State Act.

(c) By Notification No. 199 RD/04 dated 15.01.2004, a

declaration was made under Section 6 of the State Act to the

effect that the land mentioned in the notification was needed

for public purpose. Further, in pursuance of Section 17 of the

State Act, the Collector was directed to take possession of the

aforesaid land subject to completion of all formalities including

those under Sections 9(2) and 17-A of the State Act and Rule

63 of the Land Acquisition Rules (in short `the Rules') and to

finalize the proceedings immediately. By letter dated

17.01.2004, all the land owners were again informed by the

Collector about the acquisition of the land under Sections 9

and 9-A of the State Act and requesting them to remain

present on the spot on 06.02.2004 at 11 a.m.

4

(d) On 30.01.2004, a letter was received from the land

owners requesting the Collector for fixing a fresh date after

due notice to them. A draft award dated 28.07.2004 was

passed by the office of the Collector assessing the total value of

the land structure and the fruit trees at Rs.2,77,31,901/-.

Notification No. HB/CLA/214-17 issued under Section 17-A of

the Act was published in the Himalayan Mail Daily on

20.08.2004, in Greater Kashmir Daily on 23.08.2004 and in

Greater `Alsafa' Daily on 28.08.2004 mentioning the names of

all the respondents.

(e) Challenging the notifications, on 30.08.2004, the

respondents filed Original Writ Petition being OWP No. 941 of

2004 before the High Court of Jammu & Kashmir at Jammu.

Learned single Judge of the High Court, vide order dated

03.09.2007, allowed the petition of the respondents herein

with liberty to file their objections afresh within 15 days of the

receipt of the copy of the said order. Since the respondents-

land owners did not choose to receive the compensation and a

reference under Sections 17-A and 32 of the State Act was

filed on 03.09.2004 in the Court of District and Sessions

5

Judge, Baramulla, a cheque bearing No. 0148568 dated

03.09.2004 amounting to Rs.2,34,71,151/- (80% of the total

assessed compensation) was deposited with the District Judge,

Baramulla with a request for disbursement of the said amount

among the actual and real owners of the acquired land. On

the very same day, i.e., on 03.09.2004, the possession of the

land was taken over by the representatives of Deputy General

Manager, Housing Unit-II, Srinagar.

(f) Challenging the said order of the learned single Judge, the

appellants herein filed LPAOW No. 60 of 2007 before the

Division Bench of the High Court. The Division Bench, by

impugned judgment dated 21.05.2009, dismissed the said

appeal.

(g) Aggrieved by the said judgment, the appellants have filed

these appeals by way of special leave before this Court.

4) Heard Mr. Rajiv Dhawan, learned senior counsel for the

Board-appellants herein and Mr. K.K. Venugopal, learned

senior counsel for the contesting respondents herein.

6 5) Mr. Rajiv Dhawan, learned senior counsel appearing for

the Board, after taking us through the entire acquisition

proceedings and the relevant provisions of the State Act

submitted that inasmuch as all the procedures had been

meticulously followed by the Board and possession was also

taken before filing of the writ petition, the order passed by the

learned single Judge quashing the acquisition proceedings

from the stage of proceedings under Sections 5 and 5-A of the

State Act and also subsequent proceedings as confirmed by

the Division Bench are not sustainable and prayed for

interference by this Court.

6) On the other hand, Mr. K.K. Venugopal, learned senior

counsel appearing for the respondents/land owners, by

drawing our attention to various mandatory provisions of the

State Act and the J & K Housing Board Act, 1976, submitted

that inasmuch as the appellants failed to follow the mandatory

provisions of the State Act, the orders passed by the learned

single Judge and the Division Bench are fully justified and no

interference is called for by this Court.

7 7) We have carefully considered the rival contentions,

orders of the High Court and perused the relevant provisions

and also various notifications/orders etc.

8) Before considering the rival contentions, it is useful to

refer the relevant provisions of the State Act which are

applicable to the State of Jammu & Kashmir. Part II of the

State Act deals with Acquisition. The relevant provisions are

as under :

"4. Publication of preliminary notification and

powers of officers thereupon - Whenever land in any

locality is needed or is likely to be needed for any public

pupose the collector shall notify it -

(a) through a public notice to be affixed at convenient

places in the said locality and shall also cause it to

be known by beat of drum and through the local

Panchayats and Patwaries;

(b) in the Government Gazette; and

(c) in two daily newspapers having largest circulation

in the said locality of which at least one shall be in

the regional language.

(2) ....."

"5. Payment for damage - The officers so authorized

shall at the time of such entry pay or tender payment for all

necessary damage to be done as aforesaid, and in case of

dispute as to the sufficiency of the amount so paid or

tendered, he shall at once refer the dispute to the Provincial

Revenue authority within thirty days of its being

pronounced, whereupon, the decision of that officer shall be

final."

"5-A. Hearing of objections. - Any person interested

in any land which has been notified under section 4, sub-

section (1), as being needed or likely to be needed for a

public purpose may, within fifteen days after such land is

8

notified in the manner prescribed in clause (a) of sub-section

(1) of Section 4 as being needed or likely to be needed for a

public purpose, subject to the acquisition of the land or of

any land in the locality, as the case may be.

(2) Every objection under sub-section (1) shall be

made to the Collector in writing, and the collector shall give

the objector an opportunity of being heard either in person

or by pleader or by a person authorized by him and shall,

after hearing all such objections and after making such

further inquiry, if any, as he thinks necessary, submit the

case for the decision of the Government, together with the

record of the proceedings held by him and a report

containing his recommendations on the objections. The

decision of the Government on the objections shall be final.

(3) For the purpose of this section, a person shall be

deemed to be interested in land who would be entitled to

claim an interest in compensation if the land were acquired

under this Act."

6. Declaration that land is required for public

purpose - (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

authorized in this behalf:

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.

(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.

(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."

9

"9. Notice to persons interested - (1) The Collector

shall then cause public notice to be given at convenient

places on or near the land to be taken, stating that the

Government intends to take possession of the land, and that

the claims to compensation for all interests in such land may

be made to him.

(2) Such notice shall state the particulars of the land

so needed, and shall require all persons interested in the

land to appear personally or by agent, before the Collector at

a time and place therein mentioned (such time not being

earlier than fifteen days after the date of publication of

notice, and to state the nature of their respective interests in

the land and the amount and particular of their claims to

compensation for such interests and their objections (if any)

to the measurements made under section 8. The Collector

may, in any case, require such statements to be made in

writing and signed by the party or his agent.

(3) The Collector shall also serve notice to the same

effect on the occupier (if any) of such land and on all such

persons known or believed to be interested therein, or to be

entitled to act for persons so interested, as reside, or have

agents authorized to receive service on their behalf, within

the revenue district in which the land is situate.

(4) In case any person so interested resides

elsewhere, and has no such agent, the notice shall be sent to

him by post in a letter addressed to him at his last known

residence, address or place of business and registered in

accordance with the Postal Rules in force for the time being

in that behalf."

Section 11 speaks about enquiry into measurements, value,

claims and award by the Collector. Section 12 makes it clear

that the award passed by the Collector shall be final and

conclusive evidence as between the Collector and the persons

interested. Sub-section(2) of Section 12 mandates that the

1

Collector shall give immediate notice of his award to such of

the persons interested, as are not present personally or by

their representatives when the award is made. Section 17

relates to special powers entrusted to the Collector in case of

urgency. Section 18 speaks about the reference to Court to

determine the objections as to the quantum of compensation

or the measurement of land and procedure to be followed

thereupon. In the last Part, i.e., Part VIII, which provides

miscellaneous provisions, Section 43 speaks about the service

of notice and makes it clear that how notice under this Act

shall be made etc.

9) According to Mr. Rajiv Dhawan, learned senior counsel

for the appellants, the requirement, particularly under Section

4, had duly been complied with and because of the fact that

the respondents failed to submit their objections within the

prescribed period under Section 5-A(1), the stand of the

respondents/land owners has to be rejected. As per Section 4,

whenever land in any locality is needed for any public

purpose, the Collector has to notify it in the manner provided

in sub-sections (a), (b) and (c) of the said Section. Public

1

purpose has been defined in Section 3(g) of the State Act.

There is no dispute that the public purpose mentioned in the

notification issued under Section 4(1) of the Act refers to

"development of housing colony" by the Board at Village

Ferozpur, Tehsil Tangmarg, District Baramulla. Undoubtedly,

the said purpose is a public purpose in terms of Section 2(g) of

the State Act. However, the main question before us is

whether the Collector has fully complied with the mandates

and procedures provided in sub-sections (a), (b) and (c) of

Section 4. The opening part of Section 4 i.e. "whenever land in

any locality is needed or is likely to be needed for any public

purpose the Collector shall notify it" makes it clear that the

procedure provided in sub-Sections (a), (b) and (c) are

mandatory and the same has to be strictly complied with.

(Emphasis supplied).

10) As far as affixing of notice in the locality and information

through beat of drum as well as through local Panchayats and

Patwaries are concerned provided in sub-section (a), that have

been complied with. The notification was duly published in

the Government Gazette which satisfies sub-section (b) of

1

Section 4. Sub-section(c) of that Section mandates that the

Collector has to notify his intention to acquire the land/lands

needed for public purpose in two daily newspapers having

largest circulation in the said locality of which at least one

shall be in the regional language. (Emphasis supplied).

11) Before elaborating the compliance of sub-section (c) of

Section 4 in terms of mandates provided therein, since Mr.

Rajiv Dhawan, learned senior counsel has claimed that there

is substantial compliance of provisions required above and no

flaw is to be found in the acquisition proceedings, let us

consider various decisions relied on by him.

12) In State of T.N. & Anr. vs. Mahalakshmi Ammal &

Ors., (1996) 7 SCC 269, paragraph nos. 8 and 9 were pressed

into service. On going through those paragraphs, we are able

to see that the land owners filed their objections to the notice

issued under Section 5-A and Rule 3 of the Rules framed by

the State Government. Except the above factual information,

nothing is available on record in support of the stand taken by

the appellants.

1 13) The next decision relied on by Mr. Rajiv Dhawan is May

George vs. Special Tahsildar & Ors., (2010) 13 SCC 98

wherein he very much pressed into service paragraph 25 of the

said judgment which reads as under:

"25. The law on this issue can be summarised to the

effect that in order to declare a provision mandatory, the test

to be applied is as to whether non-compliance with the

provision could render the entire proceedings invalid or not.

Whether the provision is mandatory or directory, depends

upon the intent of the legislature and not upon the language

for which the intent is clothed. The issue is to be examined

having regard to the context, subject-matter and object of

the statutory provisions in question. The Court may find out

as to what would be the consequence which would flow from

construing it in one way or the other and as to whether the

statute provides for a contingency of the non-compliance

with the provisions and as to whether the non-compliance is

visited by small penalty or serious consequence would flow

therefrom and as to whether a particular interpretation

would defeat or frustrate the legislation and if the provision

is mandatory, the act done in breach thereof will be invalid."

In the above paragraph, one of us, Dr. B.S. Chauhan, J. has

summarized the law as to declare a provision mandatory or

not and the test to be applied whether non-compliance with

the provision could render the entire proceedings invalid or

not. Except the above proposition of law with which we are in

entire agreement, the said decision is also not supporting the

stand of the appellants.

1 14) The judgment in Talson Real Estate (P) Ltd. vs. State

of Maharashtra & Ors., (2007) 13 SCC 186, relied on by Mr.

Rajiv Dhawan, makes it clear that the provisions of Section 5-

A of the Land Acquisition Act, 1894 (hereinafter referred to as

"the Central Act") are attracted only when a person interested

in any land which has been notified under Section 4(1) makes

objection in writing to the Collector within 30 days from the

date of the publication of the notification. It further makes it

clear that the period of 30 days will have to be counted from

the last day of the publication of the notification under Section

4 of the Act after noting the date of publication in the Official

Gazette and in two daily newspapers and notifying the

substance of such notification on the site, this Court

concluded that the appellants therein did not choose to file

their objections within the time prescribed under Section 5-A

of the Act.

15) In Ajay Krishan Shinghal & Ors. vs. Union of India

& Ors., (1996) 10 SCC 721, Mr. Rajiv Dhawan, pressed into

service paragraph 8 which speaks about the compliance of

mandatory requirements under Section 4(1). On going

1

through the factual details available on the files produced

before it, this Court concluded that the provisions of Section

4(1) of the Central Act have been fully complied with.

16) In Sulochana Chandrakant Galande vs. Pune

Municipal Transport & Ors., (2010) 8 SCC 467, which is a

judgment rendered by us under the Urban Land (Ceiling and

Regulation) Act, 1976, Mr. Rajiv Dhawan relied on paragraph

22. In that paragraph, this Court has held that once the land

is acquired, it vests in the State free from all encumbrances.

It further shows that it is not the concern of the landowner

how his land is used and whether the land is being used for

the purpose for which it was acquired or for any other

purpose. It was further held that the land owner becomes

persona non grata once the land vests in the State and he has

a right to get compensation only for the same. The said

decision is not helpful to the issue raised in the case on hand.

17) The last decision relied on by Mr. Rajiv Dhawan is in

Banda Development Authority, Banda vs. Moti Lal

Agarwal & Ors., (2011) 5 SCC 394. He relied on paragraph

1

37 which speaks about principles and how the possession has

to be taken under the Central Act. The said decision is also

not helpful to the case on hand.

18) On the other hand, Mr. K.K. Venugopal, learned senior

counsel appearing for the respondents heavily relied on the

principles laid down in the following decisions:

(i) Khub Chand & Ors. vs. State of Rajasthan & Ors.,

AIR 1967 SC 1074 = (1967) 1 SCR 120.

(ii) Syed Hasan Rasul Numa & Ors. vs. Union of India &

Ors. , (1991) 1 SCC 401 and

(iii) Kunwar Pal Singh (dead) by L.Rs. vs. State of U.P. &

Ors., (2007) 5 SCC 85.

19) In Khub Chand (supra), Subba Rao, C.J. after

considering similar rival contentions and quoting Sections 4, 5

and 5-A of the Central Act answered several aspects including

the mandatory nature of publication provided under Section 4

of the Act. The following discussion and conclusion are

relevant:

1

"6. .....The learned Advocate-General argued that a combined

reading of Sections 4, 5 and 5-A indicates that the direction

in the second part of Section 4 that the Collector shall cause

public notice of the substance of the notification to be given

at convenient places in the said locality was only directory.

He pointed out that Section 4 contemplated only a

notification in general terms and that under Section 5(2)

after the Collector ascertained the necessary particulars, the

Government had to issue a fresh notification giving sufficient

description of the land intended to be acquired along with a

plan, if one had been made, and also to cause a public notice

to be given of the substance of the said notification at

convenient places on or near the land to be acquired. As two

notices were contemplated by the Act -- one in general terms

and another with specifications -- and as both the notices

should be published and their substance should be notified

at convenient places, the argument proceeded, that the

direction to cause a public notice of the substance of the

notification to be given at convenient places in the said

locality under Section 4 was only directory, for the party

would get under the later notification better particulars and

thus he would not in any case be prejudiced.

7. This argument was not accepted by the High Court,

and in our view rightly. The provisions of a statute conferring

power on the Government to compulsorily acquire lands

shall be strictly construed. Section 4 in clear terms says that

the Collector shall cause public notice of the substance of

such notification to be given at convenient places in the said

locality. The provision is mandatory in terms. Doubtless,

under certain circumstances, the expression "shall" is

construed as "may". The term "shall" in its ordinary

significance is mandatory and the court shall ordinarily give

that interpretation to that term unless such an

interpretation leads to some absurd or inconvenient

consequence or be at variance with the intent of the

legislature, to be collected from other parts of the Act. The

construction of the said expression depends on the

provisions of a particular Act, the setting in which the

expression appears, the object for which the direction is

given, the consequences that would flow from the

infringement of the direction and such other considerations.

The object underlying the said direction in Section 4 is

obvious. Under sub-section (2) of Section 4 of the Act, after

such a notice was given, the officer authorised by the

Government in that behalf could enter the land and interfere

1

with the possession of the owner in the manner prescribed

thereunder. The legislature thought that it was absolutely

necessary that before such officer can enter the land of

another, the owner thereof should have a clear notice of the

intended entry. The fact that the owner may have notice of

the particulars of the intended acquisition under Section 5(2)

does not serve the purpose of Section 4, for such a notice

shall be given after the appropriate officer or officers enter

the land and submit the particulars mentioned in Section 4.

The objects of the two sections are different: the object of one

section is to give intimation to the person whose land is

sought to be acquired, of the intention of the officer to enter

his land before he does so and that of the other is to enable

him to know the particulars of the land which is sought to be

acquired. In the Land Acquisition Act, 1894 (Central Act 1 of

1894) there is no section corresponding to Section 5(2) of the

Act. Indeed sub-section (2) of Section 5 of the Act was

omitted by Act 15 of 1960 and Section 5-A was suitably

amended to bring the said provision in conformity with those

of Central Act 1 of 1894. Whatever may be said on the

question of construction after the said amendment -- on

which we do not express any opinion -- before the

amendment, Sections 4 and 5(2) were intended to serve

different purposes.

8. Indeed, the wording of Section 4(2) of the Act leads to

the same conclusion. It says, "thereupon it shall be lawful

for any officer, generally or specially authorised by the

Government in this behalf, and for his servants and

workmen to enter upon and survey and take levels of any

land in such locality...." The expressions "thereupon" and

"shall be lawful" indicate that unless such a public notice is

given, the officer or his servants cannot enter the land. It is a

necessary condition for the exercise of the power of entry.

The non-compliance with the said condition makes the entry

of the officer or his servants unlawful. On the express terms

of sub-section (2), the officer or his servants can enter the

land to be acquired only if that condition is complied with. If

it is not complied with, he or his servants cannot exercise

the power of entry under Section 4(2), with the result that if

the expression "shall" is construed as "may", the object of

the sub-section itself will be defeated. The statutory

intention is, therefore clear, namely, that the giving of public

notice is mandatory. If so, the notification issued under

Section 4 without complying with the said mandatory

1

direction would be void and the land acquisition proceedings

taken pursuant thereto would be equally void."

20) In Syed Hasan Rasul Numa (supra), this Court

considered the dictum laid down by Subba Rao, C.J., in Khub

Chand (supra). The following conclusion is relevant:

"13. There is a broad basis for the view that we have taken from

the decisions of this Court although on the provisions of other

enactment. Section 4(1) of the Land Acquisition Act, 1894

provides for publication of the notification in the official Gazette

and in two daily newspapers circulating in that locality where

the land is situated of which at least one shall be in the regional

language. Section 4(1) further provides that the Collector shall

cause public notice of the substance of such notification to be

given at convenient places in the said locality. In Khub Chand v.

State of Rajasthan Subba Rao, C.J., while construing the object

and scope of Section 4(1) expressed the view that provisions of

the section requiring public notice are mandatory and the

legislature thought that it was absolutely necessary that the

owner of the land should have a clear notice of the proposed

acquisition. It was said that the fact that the owner may have

notice of the particulars of the intended acquisition by any

other means does not serve the purpose of Section 4 and does

not absolve the obligation to follow the method of publication of

the notification. It was also observed that the notification issued

under Section 4(1) without complying with the mandatory

direction would be void and the land acquisition proceedings

taken pursuant thereto would also be void. This view has been

reiterated in a number of subsequent decisions of this Court. In

Collector (District Magistrate), Allahabad v. Raja Ram Jaiswal

most of the earlier decisions have been referred to and the view

taken in Khub Chand case has been reiterated.

14. In the instant case, the notice has been published only

in the local newspapers, namely, the Daily Pratap, the

Hindustan Times, the Statesman, the Indian Express and the

Navbharat Times. This is only one of the three means of

publication provided under Section 44 and it apparently falls

short of the mandatory requirements of the section. Since the

provisions of the Section 44 have not been complied with, the

2

notice in question has no validity and the action taken

pursuant thereto has also no validity."

21) In Kunwar Pal Singh (supra), this Court while

construing three modes of publication, namely, (i) publication

in the Official Gazette, (ii) in two daily newspapers circulating

in the locality and, (iii) causing public notice of the substance

in the locality where the land situate, provided under the

Central Act, held as under:-

"16. Section 6(2), on a plain reading, deals with the various

modes of publication and they are: (a) publication in the

Official Gazette, (b) publication in two daily newspapers

circulating in the locality in which the land is situate of

which at least one shall be in the regional language, and (c)

causing public notice of the substance of such declaration to

be given at convenient places in the said locality. There is no

option left with anyone to give up or waive any mode and all

such modes have to be strictly resorted to. The principle is

well settled that where any statutory provision provides a

particular manner for doing a particular act, then, that thing

or act must be done in accordance with the manner

prescribed therefor in the Act".

22) Though all the above decisions arose under the Central

Act, it is not in dispute that similar provisions have been

incorporated in the State Act. We have already extracted

Sections 4, 5, 5-A and 6 of the State Act which are similar to

the provisions of the Central Act. From the materials placed

before us, we are satisfied that the conditions prescribed in

2 Section 4(1)(a) and (b) had been complied with except Section

4(1)(c) which have not been followed. In the light of the

language used in Section 4(1), namely, "the Collector shall

notify it", the procedures/directions provided in Section

4(1)(a)(b) and (c) ought to be strictly complied with. There is

no option left with anyone to give up or waive any of the mode

and all such modes have to be strictly resorted to. It is settled

law that when any statutory provision provides a particular

manner for doing a particular act, the said thing or act must

be done in accordance with the manner prescribed therefor in

the Act. Merely because the parties concerned were aware of

the acquisition proceedings or served with individual notices

does not make the position alter when the statute makes it

very clear that all the procedures/modes have to be strictly

complied with in the manner provided therein. Merely

because the land owners failed to submit their objections

within 15 days after the publication of notification under

Section 4(1) of the State Act, the authorities cannot be

permitted to claim that it need not be strictly resorted to. In

the case on hand, admittedly, the notification was published

2

in two daily newspapers i.e. in the Himalayan Mail and in the

Greater Kashmir but one of them was not a newspaper

published in regional language i.e. Kashmiri which is the

requirement of Section 4(1)(c) of the Act. We have already held

that all the requirements provided in Section 4(1)(a)(b) and (c)

are mandatory and have to be strictly adhered to. In addition

to the same, though on 11.06.2003 a corrigendum was issued

for enlarging the area of acquisition, admittedly, this

corrigendum was not published in any newspaper.

23) As pointed out above, it is true that the prescribed period

of 15 days as mentioned in Section 5-A(1) of the Act for filing

objections starts running from the date of publication of the

notification under Section 4(1) of the Act in the manner

provided in Clause (a), however, at the same time, the

conditions as prescribed under Section 4(1) have not been

fully complied with. It cannot be claimed that compliance of

provisions of sub-Sections (a) to (c) of Section 4(1) are only

directory. On the other hand, it is not only mandatory but all

the terms provided therein are to be complied with very

strictly. This has been reiterated in Section 5-A of the Act

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also. By virtue of the provisions of the State Act, the valuable

right/ownership of the land owners being taken away, hence,

those provisions have to be strictly construed. The object of

publication in terms of Section 4(1)(c) of the Act is to intimate

the people who are likely to be affected by the notification. It

is not in dispute that when the officers attempted to serve the

notice by affixation or to persons in charge of the land, they

were informed about the absence of the land owners due to

disturbance in the area in question and it was also informed

that they are residing in Delhi. In spite of such information,

the authorities have not taken care of sending proper notice to

the respondents or comply with the provisions, particularly,

Section 4(1)(c) of the Act. In view of the above discussion, we

agree with the reasoning and ultimate conclusion of the

learned single Judge quashing the acquisition proceedings

from the stage of Section 5A of the State Act and the decision

of the Division Bench affirming the decision of the learned

single Judge.

2 24) Apart from the above infirmities, Mr. Venugopal, learned

senior counsel for the respondents after taking us through the

provisions of the J&K Housing Board Act, 1976, particularly,

framing of housing schemes and acquisition and disposal of

land contended that in the absence of any approved Scheme

by the Board, it is not permitted to proceed further. In respect

of the above argument, he highlighted Sections 14, 15, 17, 19

and 26(1)(2) of the Housing Board Act, 1976. Inasmuch as we

accept the reasonings and the conclusion of the learned single

Judge quashing the acquisition proceedings from the stage of

Section 5-A and further direction to file their objections afresh

within 15 days of the receipt of copy of his order, we are not

inclined to go into the said contention. However, the

contesting respondents are free to raise the said objection and

it is for the authority concerned/government to take a decision

one way or other if the same is acceptable for which we are not

expressing any opinion.

2 25) In the light of the above discussion, we are unable to

accept the stand taken by the Board-appellants herein, on the

other hand, we are in entire agreement with the decision of the

learned single Judge as affirmed by the Division Bench.

Consequently, the appeals fail and the same are dismissed

with no order as to costs. In view of the dismissal of the

appeals of the Board and in the light of the various objections

raised, the respondents/land owners are permitted to file their

additional objections, if they so desire, within 15 days from the

date of receipt of this judgment. On receipt of those fresh

objections, the Collector of the Board will consider both the

original and additional objections and also afford personal

hearing to them at the Housing Board Office situated at Green

Belt Park, Gandhi Nagar, Jammu and proceed further in

accordance with law.

.................................................J.

(P. SATHASIVAM)

...............................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

NOVEMBER 4, 2011.

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