J&K HC Recalls 2021 Ruling on IUST Land Acquisition, Holds Section 4 Notification Substantially Complied With
A Division Bench at Srinagar allowed a review petition filed by the UT of J&K, finding that the 2021 judgment erred in invalidating a land acquisition notification for want of regional-language newspaper publication.
The High Court of Jammu & Kashmir and Ladakh at Srinagar has recalled its own judgment of 28 October 2021, which had declared the entire land acquisition proceedings for the Islamic University of Science and Technology, Awantipora (“IUST”), null, void, and invalid. The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar, deciding RP No. 40/2023, held that the earlier bench had committed an error apparent on the face of the record by finding that the Section 4(1) notification under the J&K Land Acquisition Act, Samvat 1990 was vitiated solely because it was not published in a Kashmiri-language newspaper. The bench found substantial compliance on the facts, dismissed the underlying writ petitions, and also condoned a delay of 543 days in filing the review petition.
The Acquisition and the Original Writ Petitions
The Registrar of IUST, Awantipora, placed an indent before the Collector, Land Acquisition, Pulwama, in December 2016 for acquisition of land measuring 46 kanals, 12 marlas, and 6½ sarsai in village Awantipora. The stated purpose was creation of additional infrastructure for the university.
Acting on that indent, the Collector issued a notification under Section 4(1) of the J&K Land Acquisition Act vide Notification No. 03 of 2017 dated 2 May 2017. Four of the interested persons, Mohd. Latief Guroo, Bashir Ahmad Guroo, Ghulam Mohi-ud-Din Guroo, and Firdous Ahmad Guroo, filed objections. Significantly, they did not contest the acquisition or the public purpose. They asked only for alternate land or adequate compensation to enable them to purchase residential plots elsewhere.
The objections were found untenable and disposed of. The matter then went before the District Price Negotiation Committee on 7 October 2017, but negotiations failed to produce a settlement. Acquisition proceeded under Sections 6, 7, and 17 of the Act. Given the urgency, the Government invoked Section 17 emergency provisions and directed the Collector to take possession after 15 days from publication of the Section 9 notification, subject to compliance with Sections 9(2) and 17-A.
Notifications under Sections 9 and 9-A were issued on 17 May 2018. No objections were received from either the landowners or the indenting department. The Collector made a tentative compensation assessment, forwarded it through the Divisional Commissioner, Kashmir, and upon approval passed a final award on 20 February 2020 for Rs. 7,33,18,205.
The landowners refused the compensation and filed four writ petitions, WP(C) Nos. 1993/2019, 1034/2020, 1410/2020, and 1070/2020, seeking to quash the acquisition proceedings, particularly the Section 4 notification, and claiming compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“the Act of 2013”). The Act of 2013 had been extended to the UT of Jammu and Kashmir following the J&K Reorganisation Act, 2019.
What the 2021 Division Bench Decided
All four writ petitions were clubbed and decided together by a Division Bench vide judgment dated 28 October 2021. That bench found two defects. First, it held that the Section 4 notification had not been published in the manner prescribed under Section 4 of the Land Acquisition Act. Second, it held that the final award dated 20 February 2020 was passed beyond the prescribed period and therefore violated Section 24(1)(a) of the Act of 2013. On both grounds, the Division Bench declared the entire acquisition proceedings, including the award, null, void, and invalid.
The UT of J&K challenged that judgment before the Supreme Court by way of Special Leave Petition. Civil Appeal No. 1052 of 2023 was partly allowed. The Supreme Court held that the portion of the 2021 judgment setting aside the award on the ground of Section 24(1)(a) of the Act of 2013 was unsustainable, and quashed it. On the separate question of valid publication of the Section 4 notification, the Supreme Court did not decide the matter itself. Instead, it granted liberty to the UT to file a review petition before the High Court, along with additional documents that had been produced before the Supreme Court in IA No. 23283/2023. The Supreme Court further clarified that even if the High Court dismissed the review petition, the proceedings would relate back to the stage of objections under Section 5-A of the Act and continue from there.
The 543-Day Delay and Its Condonation
Before the review petition could be heard on merits, the bench had to address CM No. 3062/2023, an application seeking condonation of a 543-day delay in filing the review petition. The bench noted that the delay was admittedly large. However, it accepted that the delay arose because the UT had bona fide pursued the remedy of appeal before the Supreme Court rather than filing a review petition simultaneously. The Supreme Court itself had granted liberty to file the review petition only after partly deciding the appeal. The bench was satisfied that sufficient cause had been shown and condoned the delay.
The Legal Issue: Mandatory Publication or Substantial Compliance?
The sole question before the reviewing bench was whether there had been substantial compliance with Section 4(1) of the J&K Land Acquisition Act in publishing the preliminary notification.
Section 4(1) of the Act requires the Collector to notify the proposed acquisition by two means: first, by affixing a public notice at convenient places in the locality and causing it to be known by beat of drum and through local panchayats and patwaris; and second, by publication in two daily newspapers having the largest circulation in the locality, of which at least one must be in the regional language.
In the present case, the notification was published in two English-language newspapers, Daily Aftab, Srinagar, and Kashmir Images. Both are admittedly in English. The regional language of the locality, village Awantipora in the Kashmir Province, is Kashmiri. No Kashmiri-language newspaper was used.
The UT argued that the object of the publication requirement was fully achieved: the notification was affixed at conspicuous places in the locality by the Patwari of the Patwar Halqa concerned, the villagers were informed, and four of the interested persons actually filed written objections. The respondents, represented by Mr. G.A. Lone, Senior Advocate, countered that the publication requirements of Section 4 are mandatory, and that failure to publish in the regional language vitiates the entire proceedings. He relied on the Supreme Court's judgment in J&K Housing Board and others v. Kunwar Sanjay Krishan Koul, (2011) 10 SCC 714.
How the Bench Reasoned
The bench first set out the scope of review jurisdiction. While the Code of Civil Procedure does not apply to writ proceedings with full rigour, the principles underlying Order 47 of the Code can be borrowed. The three recognised grounds for review are: discovery of new and important matter or evidence not available despite due diligence; mistake or error apparent on the face of the record; and any other sufficient cause. The UT's case rested on the second ground, error apparent on the face of the record.
On the facts, the bench found that the Patwari of the Patwar Halqa had duly affixed the public notice at convenient places in the locality, as evidenced by a communication appended to the review petition as Annexure 3 and also available in the original record. The Section 4(1)(a) limb of the notification requirement was therefore satisfied.
On the newspaper publication limb, the bench took judicial notice of a fact that counsel for both sides did not dispute: there is hardly any daily newspaper published in the Kashmiri language having wide circulation in the area. Given this reality, the bench held that the doctrine of necessity comes into play. Where no Kashmiri-language newspaper with wide circulation exists, the requirement of publishing in a regional-language newspaper must be treated as dispensed with.
The bench then turned to the conduct of the interested persons. Four of the respondents had filed written objections to the acquisition. Those objections were not directed against the acquisition itself or the public purpose, but were requests for alternate land or compensation. The objections were considered by a committee of officers and found untenable. Thereafter, the DPNC conducted private negotiations in which the villagers participated but demanded what the Collector recorded as exorbitant rates, causing the negotiations to fail.
The bench drew a pointed inference from the timing of the writ petitions. The Section 4 notification had been in existence since 2 May 2017. The final award was passed on 20 February 2020. The writ petitions were filed only after the award, and only after the Act of 2013 was extended to the UT of J&K following the J&K Reorganisation Act, 2019. The bench observed that the motivation to challenge the Section 4 notification arose from the prospect of better compensation under the Act of 2013, not from any genuine ignorance of the acquisition proceedings.
On the precedent relied upon by the respondents, the bench distinguished J&K Housing Board v. Kunwar Sanjay Krishan Koul, (2011) 10 SCC 714. It noted that the Supreme Court in that case had not been told that there was no Kashmiri-language newspaper with wide circulation in Kashmir, that the interested persons in that case were Kashmiri migrants residing in New Delhi with no effort made to serve them proper notice, and that the acquiring authority had not established that those persons otherwise had actual knowledge of the acquisition. None of those features were present here.
The bench instead placed reliance on Special Deputy Collector, Land Acquisition, CMDA v. J. Sivaprakasam and others, (2011) 1 SCC 330, a coordinate bench decision of the Supreme Court rendered earlier in time. The bench extracted paragraphs 25 to 30 of J. Sivaprakasam, which set out a graduated framework: if there is complete failure to publish in any newspaper, or publication in newspapers with no circulation at all in the locality, the acquisition is vitiated. If the newspapers have reasonably wide circulation, the requirements are met and all persons are deemed to have notice. If the newspapers had some but not reasonably wide circulation, the acquisition is not automatically vitiated, it is vitiated only if the aggrieved person also establishes that he had no actual notice, and that assertion is not rebutted by evidence of actual participation. If the aggrieved person shows deliberate and mala fide publication in negligible-circulation newspapers to avoid notice, Section 4(1) is violated.
Applying this framework, the bench held that the present case fell squarely within the category where actual notice was established. Four respondents had filed objections. All interested persons had participated in or been summoned to the DPNC negotiations. The respondents are residents of Awantipora, the very village where the subject land is situated. The bench found it impossible to say that the respondents were unaware of the acquisition.
The bench also relied on a Division Bench judgment of the same court in Ramesh Chander and ors. v. UT of Jammu and Kashmir and others, LPA No. 158/2020, decided on 8 June 2023, which had identified the same distinguishing features of Kunwar Sanjay Krishan Koul and reached a similar conclusion on substantial compliance.
The reviewing bench concluded that the 2021 Division Bench had committed an error apparent on the face of the record. It had not considered the affixation of the notice at conspicuous places by the Patwari, had not taken note of the four written objections filed by villagers of the same village, had not considered the DPNC proceedings in which the interested persons participated, and had not applied the substantial compliance doctrine as articulated in J. Sivaprakasam. The bench stated: “the Division Bench landed in an error apparent on the face of the record” in holding the Section 4(1) notification vitiated.
The bench also clarified the legal position on mandatory publication requirements in measured terms. The modes of publication under Section 4(1) are mandatory in the sense that they must be undertaken to give interested persons adequate notice and an opportunity to object. But where it is demonstrated that, despite some irregularity in publication, the interested persons were in fact aware of the notice and some of them submitted objections, there is still substantial compliance with Section 4(1).
Outcome
The Division Bench allowed the review petition. The judgment dated 28 October 2021 was recalled in its entirety. The underlying writ petitions, WP(C) Nos. 1993/2019, 1034/2020, 1410/2020, and 1070/2020, were dismissed. The order was pronounced on 21 May 2026 and is marked as speaking and reportable.