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TMI Blog2011 (11) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 corrig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Judge, Baramulla, a cheque bearing No. 0148568 dated 03.09.2004 amounting to ₹ 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 Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons (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 Collector shall give immediate notice of his award to such of the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jiv Dhawan, pressed into service paragraph 8 which speaks about the compliance of mandatory requirements under Section 4(1). On going 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 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 with the possession of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly, 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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