Supreme Court of India
J & K HOUSING BOARD & ANR.versusKUNWAR SANJAY KRISHAN KAUL & ORS.
- Citation
- 2011 INSC 785
- Decided
- 4 November 2011
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The Court held that the notification requirements of Section 4(1)(a)‑(c) are mandatory; non‑compliance with the regional‑language newspaper publication renders the acquisition notification void, leading to the quashing of the acquisition proceedings.
Summary
The J&K Housing Board sought to acquire 181 kanals of land for a housing colony, issuing a Section 4 notification in two newspapers but only one in the regional language as required by the Jammu and Kashmir Land Acquisition Act, 1990. The landowners challenged the acquisition, and the High Court quashed the proceedings, allowing them to file fresh objections. On appeal, the Supreme Court examined whether the statutory procedures under Section 4(1)(a)‑(c) are mandatory and whether non‑compliance with the regional‑language publication requirement invalidates the acquisition. The Court held that the procedures are strictly mandatory; the failure to publish in a regional‑language newspaper rendered the notification void, and consequently the acquisition proceedings were unlawful. The appeals were dismissed, and the respondents were permitted to file fresh objections within 15 days of the judgment.
Issues considered
- Whether the procedures prescribed in Section 4(1)(a), (b) and (c) of the Jammu and Kashmir Land Acquisition Act, 1990 are mandatory and must be strictly complied with.
- Whether failure to publish the acquisition notification in a regional‑language newspaper as mandated by Section 4(1)(c) invalidates the notification and the entire acquisition process.
- Whether the procedural defect under Section 4(1)(c) affects the validity of the objection period under Section 5‑A and the subsequent award.
- Whether the acquisition can proceed despite the identified procedural lapses.
Legislation cited
- Jammu and Kashmir Housing Board Act, 1976s. 14, s. 15, s. 17, s. 19, s. 26(1)(2)
- Jammu and Kashmir Land Acquisition Act, 1990s. 11, s. 12, s. 17-A, s. 4(1)(a), s. 4(1)(b), s. 4(1)(c), s. 5, s. 5-A, s. 6, s. 9
Subjects
Land acquisitionStatutory interpretationMandatory procedural complianceNotification requirementPublic purposeRegional language newspaperQuashing of acquisitionJammu and Kashmir
Judgment
[2011] 14 (ADDL.) S.C.R. 976
A J & K HOUSING BOARD & ANR.
v.
KUNWAR SANJAY KRISHAN KAUL & ORS.
(Civil Appeal Nos.9353-54 of 2011)
NOVEMBER 4, 2011
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Jammu and Kashmir Land Acquisition Act, 1990:
c s.4(1)(a), (b), (c) - Compliance of - Held: Procedure
provided in sub-Sections (a), (b) and (c) are mandatory and
are to be strictly complied with.
ss.4(1), 5-A - Acquisition notification for development of
housing colony - Challenged by respondents-land owners by
D filing writ petition before High Court - High Court allowed the
writ petition with liberty to respondents to file objections within
15 days - On appeal, held: The conditions prescribed in
s.4(1)(c) was not complied with - Notification was published
in.two daily newspapers but one of them was not a newspaper·
E published in regional language which is the requirement of
s.4(1 )(c) - A corrigendum issued for enlarging the area of
acquisition was also not published in any newspaper - The
procedures provided in s.4(1)(a)(b) and (c) are to be strictly
complied with - Merely because the land owners failed to
F submit their objections within 15 days after the publication of
notification uls.4(1), the authorities cannot claim that it need
not be strictly resorted to - The object of publication in terms
of s.4(1 )(c) is to intimate the people who are likely to be
affected by the notification - It is not in dispute that when the
G 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.- lnspite of such information, the authorities did not
send proper notice to the respondents or comply with the
H 976
J & K HOUSING BOARD & ANR. v. KUNWAR 977
SANJAY KRISHAN KAUL
provisions, particularly, s.4(1)(c) - In view of that order of High A
Court quashing the acquisition proceedings from the stage of
s. SA of the Act is upheld - Land Acquisition.
Interpretation of statutes: Held: When any statutory
provision provides a particular manner for doing a particular 8
act, the said thing or act must be done in accordance with the
manner prescribed therefor in the Act - Jammu and Kashmir
Land Acquisition Act, 1990.
A la11d acquisition proceedings were initiated to
acquire 181 kanals 19 marlas for public purpose for C
development of Housing Colony at Village Ferozpur. The
Notification under Section 4 of the Jammu and Kashmir
Land Acquisition Act, 1990 was published in newspapers.
A notice under Sections 5 and 5-A was also issued to all
land owners for hearing objections. On the day fixed for C
hearing objections none of the land owners came to the
spot. A notification under Section 6 was issued to the
effect that land was required for public purpose. An award
.was passed and a notification under Section 17-A was
published in two newspaper mentioning names of the E
respondents. The respondents challenged the acquisition
proceedings by filing a writ petition before the High Court.
The High Court allowed the writ petition with liberty to the
respondents to file their objections afresh within 15 days.
The instant appeals were filed challenging the order of the F
High Court.
Dismissing the appeals, the Court
HELD: 1. As per Section 4 of the Jammu and Kashmir
Land Acquisition Act, 1990, whenever land in any locality G
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. There is no dispute that the .
. public purpose mentioned in the notification issued
under Section 4(1) of the Act refers to "development of H
978 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 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. The opening part of Section 4 i.e.
"whenever land in any locality is needed or is likely to be
8 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. As far as affixing of notice in
the locality and information through beat of drum as well
C 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
Section 4. Sub-section(c) of that Section mandates that
the Collector has to notify his intention to acquire the
0
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.
The conditions prescribed in Section 4(1)(a) and (b) had
been complied with except Section 4(1)(c) which have not
E 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
F 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
G 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
H owners failed to submit their objections within 15 days
J & K HOUSING BOARD & ANR. v. KUNWAR 979
SANJAY KRISHAN KAUL
after the publication of notification under Section 4(1) of A
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 in two
daily newspapers i.e. in the Himalayan Mail and in the
Greater Kashmir but one of them was not a newspaper B
published in regional language i.e. Kashmiri which is the
requirement of Section 4(1 )(c) of the Act. Though on
11.06.2003 a corrigendum was issued for enlarging the
area of acquisition, admittedly, this corrigendum was not
published in any newspaper. [Paras 9, 10, 22] [988-F-H; · c
989-A-D; 996-H; 997-A-F]
State of T.N. & Anr. vs. Mahalakshmi Ammal & Ors.
(1996) 7 SCC 269: 1995 (5) Suppl. SCR 451; May George
vs. Special Tahsildar & Ors. (2010) 13 SCC 98: 2010 (7) SCR
204; Ta/son Real Estate (P) Ltd. vs. State of Maharashtra & D
Ors. (2007) 13 SCC 186; Ajay Krishan Shinghal & Ors. vs.
Union of India & Ors. (1996) 10 SCC 721: 1996 (4) Suppl.
I
SCR 319; Sulochana Chandrakant Galande vs. Pune
Municipal Transport & Ors. (2010) 8 SCC 467: 2010 (9) SCR
476; Banda Development Authority, Banda vs. Moti Lal E'
Agarwal & Ors. (2011) 5 SCC 394; Khub Chand & Ors. vs.
State of Rajasthan & Ors. (1967) 1 SCR 120; Syed Hasan
Rasul Numa & Ors. vs. Union of India & Ors. (1991) 1 SCC
401: 1990 (3) Suppl. SCR 165; Kunwar Pal Singh (dead) by
LRs. vs. State of UP. & Ors., (2007) 5 SCC 85: 2007 (4) SCR F
409 - referred to.
2. 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 G·
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 H
Section 4(1) are only directory. On the other hand, it is
980 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R
A 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 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
B 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,
c 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
0
view of that the High Court was justified in quashing the
acquisition proceedings from the stage of Section 5A of
the State Act. The respondents are permitted to file their
additional objections within 15 days from the date of
E receipt of this judgment. [Para 23] [997-G-H; 998-A-E]
Case Law Reference:
1995 (5) Suppl. SCR 451 referred to Para 12
2010 (7) SCR 204 referred to Para 13
F
(2001) 13 sec 186 referred to Para 14
1996 (4) Suppl. SCR 319 referred to Para 15
2010 (9) SCR 476 referred to Para 16
G (2011) s sec 394 referred to Para 17
(1967) 1 SCR 120 referred to Paras 18,
19, 20
1990 (3) Suppl. SCR 165 referred to Paras 18, 20
H
J & K HOUSING BOARD & ANR v. KUNWAR 981
SANJAY KRISHAN KAUL
2007 (4) SCR 409 referred to Paras 18, 21 A
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
9-353-9354 of 2011.
From the Judgment & Order dated 21.5.2009 of the High
Court of Jammu & Kashmir at Jammu in LPAOW No. 60 of B
2007 and CMP No. 91 of 2007.
Rajiv Dhawan, Dinesh Kumar Garg, N.K. Choudhary, B.S.
Billowria, Dhananjay Garg for the Appellants.
K.K. Venugopal, Dhruv Mehta, Jayashree Wad, Ashish
c
Wad, Tamali Wad, Kanika Bhutani, Dipti B., Shekhar
Srivastava, S. Krishna, J.S. Wad & Co. for the Respondents.
The Judgment of the Court was delivered by
D
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 E
filed by the J & K Housing Board - the appellants herein.
3. Brief facts:
(a) On 17.05.2003, the Collector, Land Acquisition (Land F
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 G
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 H
and in the Greater Kashmir newspaper on 22.05.2003 in the
982 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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/LME0/83-85 directing them to remain
s present at the spot on 16.06.2003 at 12.30 p.m. On
09.06.2003, the. Collector issued an Addendum vide office
order No. HB/LME0/87-96 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
c 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
D 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/LME0/120-22
for recommending the case to higher authorities for issuance
E 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,
F Tangmarg, who in turn, forwarded the same to the office of the
Collector on 19.07.2003. In accordance with the directions of
the Deputy Commissioner (District Collector), the Collector, vide
letter No. HB/LE0/158-60 dated 22.07.2003, requested the
Financial Commissioner (Revenue) J & K Government to
G 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
H for public purpose. Further, in pursuance of Section 17 of the
J & K HOUSING BOARD & ANR. v. KUNWAR 983
SANJAY KRISHAN KAUL [P. SATHASIVAM, J.]
State Ac;t,,the Collector was directed to take possession of the A
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 B
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 .
. (d) On 30.01.2004, a letter was received from the land C
owners requesting the Collector for fixing a fresh date after due
notice to them. A draft award dated 28.07.2d04 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 D
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 E
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 F
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 Judge,
Baramulla, a cheque bearing No. 0148568 dated 03.09.2004 G
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 H
984 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
8
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.
c
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.
5. Mr. Rajiv Dhawan, learned senior counsel appearing for
D 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
E 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.
F
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 eif the State Act
and the J & K Housing Board Act, 1976, submitted that
G 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. We have carefully considered the rival contentions,
H
J & K HOUSING BOARD & ANR. v. KUNWAR 985
SANJAY KRISHAN KAUL [P. SATHASIVAM, J.]
orders of the High Court and perused the reievant provisions A
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 8
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 C
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 D
drum and through the local Panchayats and
Patwaries;
(b) in the Government Gazette; and
(c) in two daily newspapers having largest E
circulation in the said locality of which at least
one shall be in the regional language.
(2) .... ."
"5. Payment for damage - The officers so F
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 G
days of its being pronounced, whereupon,. the decision of
that officer shall be final. n
"5-A. Hearing of objections. - Any person interested
in any land which has been notified under section 4, sub- H
986 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A section (1), as being needed or likely io be needed for a
public purpose may, within fifteen days after such land is
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
B the land or of any land in the localit~ 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,
c 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
D 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
E 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
F 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
G 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
H
J & K HOUSING BOARD & ANR. v. KUNWAR 987
SANJAY KRISHAN KAUL [P. SATHASIVAM, J.]
division in which the land is situate, the purpose for which A
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 8
that land is needed for a public purpose, and after making
such declaration the Government may acquire the land in
manner hereinafter appearing."
"9. Notice to persons interested - (1) The Collector
shall then cause public notice to be given at convenient C
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.
D
(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 tirlie not being
I
earlier than fifteen days after the date of p1.1blication of E
notice, and to state the nature of their respectiye 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
F
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 be.lieved to be interested therein, or to
be entitled to act for persons so interested, as reside, or G
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 H
988 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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,
8
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
Collector shall give immediate notice of his award to such of
C 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
D 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.
E 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
F 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
purpose has been defined in Section 3(g) of the State Act.
G 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
H
J & K HOUSING BOARD & ANR. v. KUNWAR 989
SANJAY KRISHAN KAUL [P. SATHASIVAM, J.]
the Collector has fully complied with the mandates and A
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 B
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 C
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 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 D
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. E
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 ~elied on by him.
12. In State of T.N. & Anr. vs. Mahalakshmi Ammal &
F
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, G
nothing is available on record in support of the stand taken by
the appellants.
13. The next decision relied on by Mr. Rajiv Dhawan is
May George vs. Special Tahsi/dar & Ors., (2010) 13 SCC 98 H
990 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B
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
c 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
D non-compliance is visited by small penalty or serious
consequence would flow therefrom and as to whether a
particular interpretation wou-fd defeat or frustrate the
legislation and if the provision is mandatory, the act done
in breach thereof will be invalid."
E
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.
F 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.
14. The judgment in Ta/son Real Estate (P) Ltd. vs. State
of Maharashtra & Ors., (2007) 13 SCC 186, relied on by Mr.
G 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
H of the publication of the notification. It further makes it clear that
J & K HOUSING BOARD & ANR. v. KUNWAR 991
SANJAY KRISHAN KAUL [P. SATHASIVAM, J.]
the period of 30 days will have to be counted from the last day A
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 B
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 through C
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 D
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 E
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 fu,rther held that the land owner becomes persona non
grata once the land vests in the State and he has a right to get F
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 37 which G
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 H
992 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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.
8 (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 sec 85.
c 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:
0
"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
E 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
F 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
G 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
H
J & K HOUSING BOARD & ANR. v. KUNWAR 993
SANJAY KRISHAN KAUL [P. SATHASIVAM, J.]
locality under Section 4 was only directory, for the party A
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. 8
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 C
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 D
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 E
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 F
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 G
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. Ttie objects of the two sections are different: H
994 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A the object of one section 1s 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,
B 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
c 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.
D 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
E land in such locality.... " The expressions "thereupon" and
"shall be lawful" indicate that unless such a public notice
is given, the officer or hrs 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
F 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
G the result that if the expression "shall" is cons'.rued 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
H
J & K HOUSING BOARD & ANR. v. KUNWAR 995
SANJAY KRISHAN KAUL [P. $ATHASIVAM, J.]
mandatory direction would be void and the land acquisition A
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:
8
"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 C
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 D
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 E
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 F
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 G
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.
H
996 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B falls short of the mandatory requirements of the section ..
Since the provisions of the Section 44 have not been
complied with, the 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
C 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:-
D
"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
E 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
F 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".
G 22. Though all the above decisions arose under the Central
Act, it.i;; 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
H before us, we are satisfied that the conditions prescribed in
J & K HOUSING BOARD & ANR. v. KUNWAR 997
SANJAY KRISHAN KAUL [P. SATHASIVAM, J)
Section 4(1)(a) and (b) had been complied with except Section A
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 B
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 c
proceedings or served with individual notices does not make
the position alter when the statute makes it very clear tbat 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 0
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 in two daily newspapers i.e. in the
Himalayan Mail and in the Greater Kashmir but one of them was E
not a newspaper published in regional language i.e. Kashmig
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, F
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 G
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 H
998 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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 also. By virtue of
the provisions of the State Act, the valuable righVownership of
B 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
c 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
D 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 SA of the State Act and
the decision of the Division Bench affirming the decision of the
E learned single Judge.
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
F 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
G 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
H it is for the authority concerned/government to take a decision
J & K HOUSING BOARD & ANR. v. KUNWAR 999
SANJAY KRISHAN KAUL [P. SATHASIVAM, J.]
one way or other if the same is acceptable for which we are A
not expressing any opinion.
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 B
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 objedions raised,
the respondents/land owners are permitted to file their
additional objections, if they so desire, within 15 days from the C
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 D
accordance with law.
D.G. Appeals dismissed.
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