J.P. Singh, J.
1. The petitioners are residents of Village Ashmuji Gandgund Kulgam, District Anantnag of the State of Jammu and Kashmir. They have filed this petition to seek quashing of Collector Land Acquisition Kulgam's Notification No. 1258-53/Collector,L.Acq dated 28-12-2004 and a restraint command to the respondents not to dispossess them from their immovable properties i.e. lands and houses.
2. The petitioners have questioned Collector's Notification under Section 4 of the State Land Acquisition Act, 1990 on the ground that the Collector had failed to publish it in the Government Gazette as mandatorily required under Section 4(b) of the Act. They say that there was no necessity of acquiring their lands as a road could well be laid on the existing alignment of a parallel road leading from Quinmoh to Kulgam where the State Government, through its Rural Development Department, had constructed small bridges/culverts. They say that the existing road constructed by Rural Development Department was most suitable for being used as a full-fledged road.
3. The petitioners' case is that few persons of the area, whose lands/orchards were situated along a foot-path which had been used by the inhabitants of the area to reach their lands and houses, were members of Communist Party of India (Marxist), CPI (M), for short and wielded considerable influence on the bureaucracy and the CPI (M) (MLA) Mr. M.Y. Tarigami. They wanted a motor-able road as access to their orchards and had manipulated the issuance of the Notification impugned in the writ petition. They thus questioned the notification as a malafide exercise by the Collector at the behest of Mr. Tarigami.
4. Respondents have filed their objections to the writ petition denying the plea of malafides besides saying that the acquisition proceedings had been initiated by the Collector on a requisition indent from Executive Engineer Special Sub Division R&B; Department Kulgam who had vide his communication No. 4293-95 dated 10-12-2004 requested the Collector to acquire the land in public interest. Respondents say that notification had been issued by the Collector strictly in terms of Section 4 of the State Land Acquisition Act. In their reply, the official respondents say that after the issuance of notification, the Collector had received objections of the land owners and these objections were conveyed to the Deputy Commissioner who had sought verification/report in the matter as the farmers of Mohalla Kapoora Ashmuji had approached the Minister concerned on whose instructions the report had been sought from the Collector. Respondents deny the involvement of any politics in the matter and say that wide publication had been given to the notification which was published in Newspapers and affixed on prominent places in the concerned villages. The respondents say that filing of objections to the notification under Section 4 of the State Land Acquisition Act by number of persons amply proves that wide publicity had been given to the Notification. Denying the plea of the petitioners that the notification was bad in law, they say that the notification had been issued in accordance with the provisions of law.
5. Mr. M.H. Attar, learned Counsel for petitioners urged that acquisition proceedings were unjustified besides being unwarranted and illegal because the collector had failed in his statutory duty to get the notification published in Government Gazette as mandated by Section 4(b) of the State Land Acquisition Act. According to the learned Counsel, petitioners' filing objections in answer to the notification of the Collector would not cure the defect of the non publication of the notification in the Government Gazette because the defect goes to the very root of the matter and deprives the officer concerned to enter into the property of the citizens. Learned Counsel refers to Khub Chand and Ors. v. State of Rajasthan and Ors. reported as : [1967]1SCR120 besides other judgments on the issue.
6. Mr. N.H. Shah, learned Dy.AG, appearing for the official respondents, on the other hand submitted that petitioner's submission that the notification had not been published in the Government Gazette was erroneous as it was based on a provision of law which stood since withdrawn by the State Legislature which had amended Section 4 (b) of the Act by Act No. IV of 1997 which stood published in 1997 SLJ 441. Regarding plea of malafides raised by the petitioners, learned Dy. AG, says that there is no evidence on records to justify the plea of malafides raised by the petitioners, which otherwise was mis-conceived and factually incorrect. Mr. M. Y. Tarigami, Member Legislative Assembly has filed his affidavit saying that he has been unnecessarily and wrongly arrayed as a respondent in the writ petition where baseless, unfounded and totally wrong facts had been pleaded by the petitioners to his disadvantage as he was known for his integrity, honesty and activities which he had been undertaking to espouse the genuine cause of public to protect their life and property and right guaranteed under the Constitution. According to this respondent number of locals had donated land voluntarily for the purpose of construction of road and that the construction of the road was not for the benefit of any individual but for general public benefit which included the writ petitioners too. He supports the notification by saying that it had been issued for public purpose as there was dire necessity of a motorable road in the area which had suffered in the past, and being a member of the Legislative Assembly he had suggested the Engineers' Wing of the Public Works Department to make a viable road. This respondent in nutshell thus denies the plea of malafides raised against him and the Collector by the petitioners.
7. I have considered the submissions of learned Counsel for parties and the case law cited at the bar.
8. Act No. 4 of 1997 which received accent of Governor on 9th of April 1997 was published in Government Gazette on 10th of April 1997. This amendment Act of 1997, besides introducing other amendments in the State Land Acquisition Act, amends Section 4 of the State Land Acquisition Act. This amendment reads thus:
2. Amendment of Section 4, Act X of Samvat 1990:Clause (c) of Sub-section (1) of Section 4 of the State Land Acquisition Act, Samvat 1990 (hereinafter referred to as the principal Act), shall be renumbered as clause (b) and the existing clause (b) shall be omitted.
9. The plea raised by Mr. Attar that the notification was bad in law as it had not been published in the Government Gazette is thus untenable in view of the amendment introduced in Section 4 of the Jammu and Kashmir State Land Acquisition Act which no longer requires publication of notification Under Section 4 of the Act in the Government Gazette. The judgment cited by Mr. Attar, therefore, cannot be of any help to the petitioners. First plea of Mr. Attar, therefore, fails and is accordingly rejected.
10. This takes me to the next plea of the petitioners that the action of the respondents in issuing Notification was malafide.
All official, statutory and judicial acts are presumed to have been regularly performed. With this presumption regarding the official, statutory and judicial acts, a very strong case is required to be set up and proved to seek annulment of these acts as malafide. Specific instances and circumstances which may lead the court to believe that the act complained of was malafide need to be pleaded by a litigant seeking such annulment.
11. The petitioners have neither referred to any specific instances nor such circumstances which may lead this Court to believe that the issuance of Notification by the Collector was a malafide act. The petitioners have been reckless in making allegations against an elected representative without furnishing any proof in support thereof. Such bald allegations of the petitioners against respondent No. 6 thus do not merit consideration. This apart, the plea of malafides raised by the petitioners is even otherwise untenable because the Collector had initiated action at the instance of the Executive Engineer Special Division R&B; PWD Kulgam, who vide a written communication had desired the acquisition of the land for construction of road from Ashmuji to Cheki Ashmuji road.
12. In the given facts and circumstances of the case, I do not find the petitioners to have either pleaded or produced requisite material on records on the basis whereof it could be said that action of respondent No. 4 Collector Land Acquisition Kulgam was malafide. This plea of the petitioners is found to be unsustainable which is accordingly rejected.
13. There is yet another aspect of the matter which needs to be noticed. Notification published under Section 4 of the State Land Acquisition Act is only a preliminary notification intimating the concerned land owners about the intention of the Government to acquire the land. This notification has to pass through a process of hearing the persons interested in the land on their objections to the acquisition of the land and it is only after hearing the concerned persons that the State Government publishes a final notification under Section 6 of the State Land Acquisition Act. The final decision is taken by the Government on the basis of the enquiry which the Collector after hearing the interested persons makes in this behalf. It is only the decision of the Government on the basis of such report of the Collector which attains finality.
14. Rather than waiting for the decision of the Collector, his report and the final decision of the Government in the matter, the petitioners have hastened to approach this Court to scuttle the acquisition proceedings.
15. The writ petition is thus premature and does not warrant consideration.
16. I, therefore, do not find any merit in this petition which is accordingly dismissed. Dismissal of this petition will not, however, come in the way of the petitioners to project their grievance, if any, before the Collector Land Acquisition Kulgam who may pass such orders, as warranted under law, in the facts and circumstances of the case, after hearing the petitioners and all concerned and holding enquiry in this behalf, if so needed.
17. This writ petition is, accordingly, dismissed as premature along with LA. No. 161/05.