BASHIR AHMAD DARZI Vs. STATE

JUDGEMENT

(1.) A short but an important question that has arisen in this writ petition may be summarized.

(2.) THE controversial issue owes its origin to letter No DCB/LA/BLA/409 -11 dated 27 -01 -2003, addressed by the DC Baramulla to the Collector, Assistant Commissioner (R) Baramulla requiring the latter to acquire the land measuring 2 kanals and 6 marlas bearing Khasra Nos. 155, 156 and 157 for construction of a Shopping Complex at Ushkoora Baramula. Pursuant thereto, the Collector, Assistant Commissioner, Land Acquisition issued a notification vide No. DCB/LA/BLA/155 dated 27 -01 -2003 in exercise of powers under section 4 of J&K Land Acquisition Act Samvat 1990 (1934 A.D.). Both letter as also the notification are impugned through this writ petition inter alia on the ground that the DC is not possessed of the power in terms of section 60 of the Jammu & Kashmir Town Area Act 2011 which reads:

(3.) IT transpires form the above said provision of law that it is the Government which is empowered by the statute to acquire the land at the instance of Town Area Committee. Admittedly, in the case on hand, acquisition has been ordered by the DC. Law is settled that when mode and manner of performing an official act is prescribed by the statute, it has to be performed in that manner alone or not at all. Here is a case where power vests in the Government by dint of mandate of section 60 of the Jammu & Kashmir Town Area Act 2011 to go for acquisition for public purpose yet power is assumed by the DC unto himself notwithstanding the fact that it does not flow to him from the statute. That being so, communication of the DC conferring power upon the Collector, Assistant Commissioner is, ex facie, in contravention of the statute and cannot sustain.