OMKAR NATH KHASHOO Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner, Omkar Nath Khashoo claims to be one of the owners of land measuring 15 marlas and odd, situate at Wazapora, S. R. Ganj, Srinagar, which has also two houses bearing No. 25 and 25 -A built upon it. This land, the Government seeks to acquire for the construction of a road known as Rajouri Kadal Focal point road, Notification u/s 4 of the Jammu and Kashmir Land Acquisition Act, Act, 1990 (hereinafter the Act) was issued by the Land Acquisition Collector on 12 -7 -1979, pursuant to which the petitioner filed his objections (Annexure R -l to the reply affidavit) on 23 -7 -1979. Thereafter a Notification u/s 6 was issued by the Government on 23 -1 -1980, which also empowered the Collector to take possession of the property sought to be acquired in terms of Sec. 17 of the Act, as the matter in its opinion involved urgency. .The petitioner has challenged the validity of the aforesaid Notification u/s 6 and all proceedings taken subsequent thereto on the ground that the Collector has failed to comply with the mandatory requirements of Sec. 5 -A of the Act, in as much as, he has failed to make a proper enquiry contemplated by the aforesaid section, and also failed to give the petitioner a hearing in support of his objections.

(2.) PROPRIETARY right of the petitioner in the property ought to be acquired has not been denied by the respondents in their reply affidavit, though they have denied the extent of the share claimed by him in it. They have also not controverted the allegation that after the petitioner had filed his objections to the intended acquisition, neither any enquiry was made by the Collector in relating thereto, nor did he afford any opportunity to the petitioner of being hearing in support. Their case on the other hand is that Section 5 -A is merely directory in character, as such, its non compliance does not vitiate the acquisition proceedings taken subsequent thereto, mere so when final decision to acquire the property vests in the Government, has unmistakably manifested its intention to acquire the property by issuing a notification u/s 6 which cures all defects, if any, committed by the Collector in submitting his report to the Government. The only question of law upon which the decision of this petition, therefore, turns is the provisions of Sec. 5 -A mandatory in nature, a non -compliance whereof vitiates all proceedings taken subsequent thereto ?

(3.) THE point whether or not section 5 -A is mandatory or merely directory in character and what is the effect of its non -compliance on the following -up proceedings under the Act is no more resintegra. In Shri Mandir Sita Ramji Vs Governor of Delhi and others, AIR 1974 S. C. 186S, the Collecter Delhi Administration had issued a notification u/s 4 stating chat land measuring 38070 acres was needed for a public purpose. The notification itself declared that lands belonging to a religious institution, amongst others, would not be liable to be acquired The appellant, a religious society, objected to the acquisition of a portion of land included in the notification on the ground that the same being the property of a religious institution was not liable to be acquired. The Collector without making any enquiry into these objections and without giving a hearing to the appellant submitted a report to the Delhi Administration Pursuant to which a notification u/s 6 acquiring the land belonging to the appellant as well come to be issued. This notification was challenged by the appellant before the Delhi High Court in a writ petition on the ground that the Collector before submitting his report has failed to comply with the mandatory provisions of Sec. 5 -A, in that he had neither given it a hearing, nor afforded it an opportunity to lead evidence in support of its case. This plea found favour not only with the learned Single Judge who issued the writ prayed for, but also with the Division Bench which heard the Letters Patent Appeal. The Division Bench, however, remitted the case back to the Collector with a direction that he shall hear the appellant and submit his report to the Bench before which the appeal may pending. The Collector, thereafter, heard the appellant and submitted his report rejecting its plea. The Division bench accepted the appeal holding that u/s 5 -A it was not necessary that the Collector should have heard the appellant before submitting his report to the Delhi Administration. Their lordships on special Leave reversed the decision .of the Division Bench and dealing with the nature and scope of Sec. 5 -A observed as under: