M.L. Kaul, J.
1. A brief re'sume' of the fact leading to filing of the present Letters Patent Appeal would be quite instructive in the matter.
2. The respondents challenged the Award made by the Appellant-Collector Land Acquisition by seeking a Writ of Prohibition restraining the appellant from taking any proceedings on the basis of the award saying that the same has been passed without complying the mandate of law as laid down under Sections 4, 9 and 9(A) of the Jammu and Kashmir Land Acquisition Act, 1990. According to respondents, they are the tenants of the land covered under Khasra Nos. 602, 602 min, 602/A situate at Rampur Rajouri and it constituted a part of the land consisting of 35 kanal and 4 marlas acquired by the appellant for public purpose. The respondents applied to the appellant for copies of the notices, if any, issued to them under Sections 9 and 9(A) of the Act, but no such notices were available with the respondents nor the same were published in a Government Gazette or made public on the spot, as required under Section 4 of the Land Acquisition Act. The appellant controverted the challenge made in the writ petition by the respondents, saying that they were not the owners of the land but were tenants at will and were, as such, not entitled to any compensation in terms of SRO 221 Dated 3-5-1973 and therefore they had no locus standi to maintain the writ petition. It was further submitted that the notice under Section 4 was issued vide No. AC/LA/23-26 dated 11-4-1985, which was endorsed to the Manager Government Press Jammu for publication and to Tehsildar Rajouri for necessary service. Regarding the notices under Sections 9 and (A) it was submitted that those were sent to Tehsildar Rajouri for wide publicity in the area.
3. Upon consideration, the learned single Judge vide order dated 19-2-1991 impugned in this L.P.A., found that no notice as required under Section 4 of the Land Acquisition Act was published in the Government Gazette nor was it affixed at any convenient place in the concerned locality, nor was it even made known by beat of drum.
4. Aggrieved of such adjudication of the learned single Judge the present appeal has been preferred by the appellant on the ground that the respondents because of their status of tenants at will were not entitled at all to any apportionment of compensation payable under the provisions of Land Acquisition Act and were not, in any manner, persons interested to receive compensation awarded by the Appellant. It is also contended that the learned single Judge could not set aside the Award merely on the ground that notice required under Section 4 of the J. & K. Land Acquisition Act was not served upon the respondents, for the purpose and intend of service of notice is to give an opportunity to other side to file his objections for determination of compensation and apportionment thereof. As the respondents did not hold any interest in the property as owners, therefore, there was no need to serve any notice.
5. Heard learned counsel for the parties; also bestowed our thoughtful consideration over the record on the file.
6. At the outset it can be stated that Mr. R.C. Fandhi, AAG, representing the appellant-State was unable to file a copy of the Notification to have been published in the Government Gazette till date and he could not provide any justification or proof to show that as to why he was not able to produce such a copy of the notification published in the Government Gazette; either before the learned single Judge or before us. It thus emanates and is apparent that notice as contemplated within the provisions of Section 4 of the J. & K. Land Acquisition Act has been published in the Government Gazette, nor the same was affixed at some conspicuous place in the concerned locality nor was it made known by beat of drum. However, on the record, it appears, that a copy of Notification was forwarded to the Manager Government Press for publication in the Government Gazette but the same appears to have not been published in the Government Gazette nor was it made public by beat of drum, or otherwise through the Panchayat or Patwari in some convenient place in the locality where the land in question was required to be acquired by the State for public purpose. Section 4 of the J. & K. Land Acquisition Act corresponds to Section 4 of the Central Act, which reads thus:
'4(1) Whenever land in any locality is needed or likely to be needed for any public purpose 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 drum and through the local panchayats and patwaris; and (b) in the Government Gazette.
1. Notification to be publised in Govt. Gazette.
2. The Collector causing the notification to be affixed at convenient places in the concerned locality.
3. The Collector causing the notification to be known by beat of drum and through local Panchayats and Patwaris.'
7. While interpreting the said provision of Central Land Acquisition Act in AIR 1985 SC 1622, the Supreme Court has held that:
'A bare perusal of Section 4(1) clearly shows that in order to comply with the statutory requiremets therein set out, a notification stating therein the land which is needed or is likely to be needed for a public purpose has to be published in the official gazette. The second part of the sub-section provides that the Collector has to cause public notice of the substance of such notification to be given at convenient places in the locality in which the land proposed to be acquired is situated. Both the conditions are mandatory. As a notification under Section 4(1) initiates the proceedings for acquisition of land and uses the expression 'shall' the mandate of the legislature becomes clear and therefore, the infirmities therein cannot be wholly overlooked on the specious plea that the courts do not interdict at the stage of a mere proposal.'
From the above case law it transpires that the underlying purpose behind publication of a notice in a covenient place in the concerned locality is to give an opportunity to the person interested in the land to object to the acquisition and in the instant case the purpose is not achieved, for no publication of the notice, as contemplated under Section 4 of the J. & K. Land Acquisition Act, was made public in the area where the land was required to be acquired for a public purpose.
8. It has further been observed in the above authority by the Supreme Court that :--
'Assuming that a notification in the Official Gazette is a formal expression of the decision of the Government, the decision of the Government is hardly relevant, unless it takes the concrete shape and form by publication in the Official Gazette. Where is decision of the Government to be effective and valid has to be notified in the Government Gazette, the decision itself does not become effective unless a notification in the Official Gazette follows.'
In view of the above case law, even if it is assumed that the publication of a notice is a formal expression of the decision of Government to acquire the land, but unless such a decision is notified in the Government Gazette by an appropriate notification, the proceedings for acquisition of the land in question cannot be said to have been initiated and the decision would remain a decision on a paper.
9. In the instant case the appellant has totally failed to comply with Section 4 of the J. & K. Land Acquisition Act, so much so that neither the notice has been published in the Government Gazette, nor it has been affixed at a covenient place in the locality concerned, nor made it public by beat of drum or through the local Panchayats or Patwari. There is no proof available on the file in the form of an affidavit either from the Collector or from the Patwari or any Head of the Panchayat concerned, that such a Notification issued by the appellant was made public in the locality wherefrom the land in question was required to be acquired by them for public purpose.
10. So it emerges and is held that Section 4 of the J. & K. Land Acquisition Act has laid down that in addition to the publication of notice in the official gazette, the Collector must also give publicity of the substance of such notification in the concerned locality wherefrom the land in question is required to be acquired by the Government for a public purpose. Unless both these conditions are satisfied, Section 4 cannot be said to have been complied with. The publication of a notice at a convenient place in the concerned locality and made it to be known by beat of drum and through the local Panchayats and Patwari, is a mandatory requirement and is not directory in nature. It has an important purpose behind it, for in the absence of such publication, all the interested persons may not be able to file their objections about the acquisition proceedings and they will thus be deprived of their right of representation, provided under Section 5(A) of the J. & K. Acquisition Act, which is a very valuable right available to a party, who has an interest in the land, which is being acquired by the Government for public purpose. It is only when the notification is published in the Govt. Gazette and it is accompanied by/or immediately followed by the public notice that a person interested in the property proposed to be acquired, can be recorded to have the notice of such proposed acquisition.
11. We are, therefore, entirely in agreement with the view taken by the learned single Judge that such a requirement as required under Section 4 of the J. & K. Land Acquisition Act has not been fulfilled by the appellant-State and as such the learned single Judge has been right in allowing the writ petition of the respondents and quashing the acquisition proceedings taken in the matter.
12. Hence the L.P.A. fails and is dismissed, with all its connected CMPs. Interim direction granted on 2-5-1991 shall stand vacated.