On 3rd November, 1998, a Notification under Section 4(1) of the State Land
Acquisition Act, 1990 (Act No.X of 1990) (for short, ‘the Act’) enacted by the
Legislature of the State of Jammu and Kashmir, was issued for acquiring 50 Kanals
16 Marlas of the land situated in Village Kallar Himati, Tehsil and District
Udhampur, which included 16 Kanals of land belonging to the appellant for
construction of new fruit market. On coming to know of the said Notification, the
appellant filed objection dated 13th November, 1998 by pointing out that other land
was available within the village which was not being cultivated and, therefore, there
was no justification to acquire his land which was being cultivated by him for his own
livelihood and that of his family. The Collector Land Acquisition (ACR), Udhampur
without giving the appellant opportunity of hearing in terms of Section 5-A (2) of the
Act and without even disposing of his objection, submitted report dated 6th March,
1999 to the Commissioner-cum-Secretary to the Government, Revenue Department
with the request that declaration under Section 6 and 7 of the Act may be issued.
After 4 months of
the receipt of report from the Collector Land Acquisition, the State Government
issued declaration under Section 6 of the Act, which was published vide Notification
dated 19th July, 1999.
The appellant unsuccessfully challenged the acquisition of land inasmuch
as the writ petition and letters patent appeal filed by him were dismissed by the
learned Single Judge and the Division Bench of the High Court respectively.
We have heard learned counsel for the parties and perused the record.
Undisputedly, the Collector Land Acquisition submitted report without giving
opportunity of hearing to the appellant as per the requirement of Section 5-A (2)
which is mandatory and without even disposing of the objections filed by him.
Therefore, there is no escape from the conclusion that the acquisition of the
appellant’s land was illegal and the learned Single Judge and Division Bench of the
High Court committed an error by dismissing the writ petition and letters patent
appeal filed by the appellant.
Accordingly, the appeal is allowed, the impugned orders passed by the
learned Single Judge and Division Bench of the High Court are set aside. The
declaration made under Section 6 of the Act by Notification dated 19th July, 1999 so
far as the same relates to the appellant’s land, is hereby quashed.
Needless to say that this order shall not preclude the State of Jammu and
Kashmir from taking steps afresh for issuing declaration under Section 6 after the
objections filed by the appellant are disposed of by the competent authority in
accordance with Section 5-A of the Act. No costs.
I.A. No.2 of 2003
Since no one has appeared for the applicant, the application for
impleadment is dismissed in default.
[G.S. SINGHVI] New Delhi, March 18, 2009.