Audi Alteram Partem forms an Essential part of the Law pertaining to Land Acquisition for a Public Purpose: High Court of Jammu & Kashmir and Ladakh at Jammu

Audi alteram partem forms an essential part of the law pertaining to land acquisition for a public purpose, as was observed by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU, before the bench consisting of the Hon’ble Chief Justice and Justice Javed Iqbal Wani in the matter of Ashok Kumar Padha vs. State of J & K and Ors. [OWP No. 822 of 2016], on 31.12.21.

The facts of the case emerging are that the petitioners claim to be owner in possession of landed property situated at Village Hut, Katra, District Reasi. Some residential houses are also stated to have been constructed upon the portion of the land being owned and possessed by the petitioners, besides having agriculture land abutting thereto as a source of their livelihood. A notification dated 11.08.2014 under Section 4 of the J&K Land Acquisition Act, SVT. 1990, is stated to have been issued by the respondent, Collector Land Acquisition, for construction of Heliport at village Hut, inviting therein objections from the land owners/interested persons. The petitioners state to have submitted their objections in response to the said notification. It is being stated that the respondent No. 5 without granting any opportunity of being heard to the petitioners in person and without dealing with each and every objection submitted by the petitioners forwarded a report dated 15.01.2016 to respondent No. 4-Deputy Commissioner, Reasi who is stated to have forwarded the said report on 15.01.2016 itself to respondent No. 3-Divisional Commissioner, Jammu to respondent No. 1 thereafter. It is being next stated that the respondent No. 1 arbitrarily and mechanically issued notification dated 05.02.2016 under Section 6 of the Act declaring therein that the land was required for the public purpose of construction of Heliport at Village Hut, thereby directing respondent No. 5 to take order of acquisition under Section 7 of the Act. Respondent No. 5 thereafter is stated to have issued notification dated 16.02.2016 under Section 9 & 9A of the Act calling upon the land-owners to attend his office with their respective interests and particulars of claim to compensation and objections.

The Learned Counsel for the appellants, contended in the grounds urged that the respondents undertook the process of acquisition in a mechanical and arbitrarily manner, in that, the respondent No. 5 without granting an opportunity of being heard to the petitioners in person and without adverting to each and every objection raised by the petitioners to the proposed acquisition, failed to discharge the statutory obligations/duties provided under Section 5A of the Act and that the respondent No. 1 without applying his mind and without deriving objective satisfaction and considering the fact that the respondent No. 5 had not dealt with each and every objection raised by the petitioners in response to notification dated 11.08.2014 issued notification under Section 6 of the Act. Fundamentally, it is being urged inter alia, in the grounds of challenge that the acquisition proceedings in general and notification dated 11.08.2014 issued under Section 4 (1) of the Act by respondent No. 5 read with notification dated 05.02.2016 issued by respondent No. 1 under Section 6 of the Act and also notification dated 16.02.2016 issued by respondent No. 5 under Section 9 & 9A of the Act are arbitrary, bad and unconstitutional besides being not for the public purpose.

The Learned Counsel for the respondents, argued that the respondents seek dismissal of the petitions on the premise that the petitions are not maintainable, in that, there has been no violation of any of the legal, fundamental or statutory rights of the petitioners and that the proceedings for acquisition of land in question have been initiated for public propose i.e., for construction of Heliport on placement of an indent by Shri Mata Vaishno Devi Shrine Board, Katra for the land upon issuance of notification under Section 4(1) of the Act dated 11.10.2014 by the Collector Land Acquisition and that an opportunity of being heard was granted to the 14 objectors out of which 12 caused their appearance before the Collector and that upon considering the said objections, the Collector submitted his report to the Government which after being satisfied thereto issued a consequent declaration under Section 6 of the Act.

The High Court of Jammu & Kashmir and Ladakh at Jammu, considered the pleadings as well as the facts in the instant case, and placing reliance on precedents in order to clarify the laws pertaining to land acquisition, came to the conclusion that Section 5-A(2) which represents statutory embodiment of the rule of audi alteram partem, gives an opportunity to the objector to make an endeavour to convince the Collector that his land is not required for the public purpose specified in the notification issued under Section 4 (1) or that there are other valid reasons for not acquiring the same.

Further, it was held that the formation of opinion on the issue of need of land for a public purpose and suitability thereof is sine qua non for issuance of a declaration under Section 6. The satisfaction recorded by the Government that the particular land is needed for public purpose and the declaration under section 6 (1) will be devoid of legal sanctity if statutorily engrafted procedural safeguards are not adhered to by the authority concerned or there is violation of principles of natural justice.

Thus viewing the facts and legal provisions, in the context of what has been observed, analyzed and considered hereinabove, the instant petitions were accordingly allowed, while quashing notification dated 05.02.2016 issued under Section 6 of the Act and consequential proceedings undertaken thereof. The matter was remanded back to respondents for re-consideration and revisiting the cases of the petitioners/objectors independently in light and tune with the provisions of the Act and proceed in the matter in accordance with law.

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Judgement reviewed by Bhargavi

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