J&K Housing Board & Anr vs Kanwar Sanjay Krishan Kaul & Ors

3) Brief facts:

(b) On 16.06.2003, none of the owners was present on the 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/LMEO/120-22 for recommending the case to higher authorities for issuance 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, Tangmarg, who in turn, forwarded the same to the office of the 3 Collector on 19.07.2003. In accordance with the directions of the Deputy Commissioner (District Collector), the Collector, vide letter No. HB/LEO/158-60 dated 22.07.2003, requested the Financial Commissioner (Revenue) J & K Government to recommend the case to higher authorities for issuance of declaration under Sections 6 , 7 and 17 of the State Act.

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 5 Judge, Baramulla, a cheque bearing No. 0148568 dated 03.09.2004 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 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 impugned judgment dated 21.05.2009, dismissed the said appeal.

The non-compliance with the said condition makes 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 the result that if the expression "shall" is construed 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 mandatory 1 direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void."

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 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 objections raised, the respondents/land owners are permitted to file their additional objections, if they so desire, within 15 days from the 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 accordance with law.

NOVEMBER 4, 2011.