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2001 DIGILAW 399 (HP)

CHHAJU RAM v. STATE OF HP

2001-12-19

C.K.THAKKER, M.R.VERMA

body2001
JUDGMENT C.K. Thakker, Chief Justice (Oral). 1. This petition is filed by the petitioner for quashing and setting aside notifications issued by the State of Himachal Pradesh under Sections 4 and 6 of the Land Acquisition act, 1894 (hereinafter referred to as "the Act") and to drop proceedings initiated by the respondent-authorities for acquisition of land of the petitioner. 2. The case of the petitioner in the petition is that he is owner and in possession of Khasra No. 158 in Mauza Barot, Tehsil Fatehpur, District Kangra, HP. According to the petitioner, there are two public paths on Government land leading to the house of one Narinder Singh Sandhu and his family. On 5th February 1999, the Gram Panchaya, Barot unanimously resolved to acquire land of the petitioner from Khasra No. 158 to provide path to said Narinder Singh Sandhu. It is the allegation of the petitioner that the resolution was not in public interest and the majority of the members did not approve it. Inspite, of that the State, respondent No. 1 herein issued notification under Section 4 of the Act proposing to acquire the land of the petitioner for so called public purpose. 3. Objections were invited and they were also filed by the petitioner. It was inter alia contended that the resolution of the Gram Panchayat was not adopted by the majority of members since two paths were already in existence and there was no need to have a public path. Certain affidavits were also filed wherein it was mentioned that their consent was not obtained and they were not ay/are of the resolution of the Gram Panchayat. The land was not proposed o be acquired by the Gram Panchayat. It has been further asserted by the petitioner that no opportunity of being heard was ever afforded to him and the proceedings were not in consonance with law. Ultimately, a notification under section 6 of the Act was issued on 9th January, 2001 and notice under Section 9 was issued on 26th March, 2001. 4. It was also the case of the petitioner that on 6th August, 1999, a second resolution was unanimously passed by the Gram Panchayat. Barot wherein it was stated that the land of Khasra No. 158 was not required but the said fact was not taken into consideration by the authorities. Hence, the petitioner has approached this Court by filling the present petition. Barot wherein it was stated that the land of Khasra No. 158 was not required but the said fact was not taken into consideration by the authorities. Hence, the petitioner has approached this Court by filling the present petition. 5. Notice was- issued, pursuant to which respondents appeared. In CMPO No. 414 if 2001, interim direction was issued that meanwhile the petitioner will not be dispossessed from the land in question, 6. We have heard learned counsel for the parties. 7. Mr. Maniktala, learned counsel for the petitioner contended that the provisions of Section 5-A of the Act had not been complied with and the petitioner was not afforded an opportunity of being heard and hence, the proceedings were vitiated. He submitted that the inquiry was quasi judicial in nature and apart from the provisions of Section 5-A of the act, principles of natural justice and fair play also required that such opportunity ought to have been afforded to him. Learned counsel contended that since no notice was issued and no opportunity of being heard was afforded, notification under Section 6 of the Act could not be said to be legal and valid. Failure to hold inquiry and affording opportunity of being heard had resulted in prejudice to the petitioner and all proceedings were vitiated. It was also submitted that the action was malafide and malicious in view of the fact that only with a view to accommodate one person, acquisition was sought to be made and the action deserves to be interfered with by this Court. 8. Learned Advocate General, on the other hand, submitted that the action taken by the authorities is legal and in accordance with law. He stated that the procedure required to be followed under the act had been followed and notification under Section 4 of the Act was issued. An opportunity was afforded and hearing was given under Section 5-A. Thereafter notification under Section 6 of the Act was issued. It is not open to the petitioner to contend that the land was not acquired in accordance with law or acquisition was not for public purpose. It was submitted that there was no malafide on the part of the authorities and on the basis of unanimous, resolution passed by the Gram Panchayat, the action was taken. It is not open to the petitioner to contend that the land was not acquired in accordance with law or acquisition was not for public purpose. It was submitted that there was no malafide on the part of the authorities and on the basis of unanimous, resolution passed by the Gram Panchayat, the action was taken. He, therefore, submitted that the grievance raised on behalf of the petitioner has no substance and the petition deserves to be dismissed. 9. Now from the record, it is dear that the Gram Panchayat had passed a unanimous resolution which is annexed as Annexure P-4 on 5th February, 1999. By the said resolution, it was resolved that it was proposed in the meeting that a matter of construction of metalled road to reach Mohalla of Narinder Singh Sandhu was under consideration, but to reach that Mohalla, public path which passed through Khasra No. 197 and Khasra No. 159 and second public path which passed through Khasra No. 1832 and Khasra No. 1852 wore involved. It was, however, resolved that the part between the two Khasra numbers. Khasra No. 158 fell in the field of Mr. Chhaju Ram, the petitioner herein. To reach the Mohalla, one has to cross field of the petitioner. It was also stated that the field was being used as public path, but the owner of the field was obstructing. It was, therefore, decided to acquire three to five meters of land from Khasra No. 158. The said action was taken in accordance with the provisions of Section 198 of the H.P. Panchayati Raj Act, 1994 which states that a Gram Panchayat may request the State Government for acquisition of land. It, therefore, cannot be said that the action was taken without any basis or without the resolution of the Gram Panchayat. 10. It is no doubt true that subsequently another resolution was passed by the Gram Panchayat on 6th August, 1999, a copy of which is also annexed as Annexure P-10. In the said resolution, it was stated that a resolution was passed on 5th February, 1999 for acquisition of land of the petitioner. It was passed by the Gram Panchayat unanimously. But it was also unanimously deided after considering the facts and circumstances that there was no necessary for such acquisition. 11. In our opinion, however, the question is not whether subsequent decision was unanimous or not. It was passed by the Gram Panchayat unanimously. But it was also unanimously deided after considering the facts and circumstances that there was no necessary for such acquisition. 11. In our opinion, however, the question is not whether subsequent decision was unanimous or not. The question is whether proceedings were initiated in accordance with the provisions of the Act or they were initiated taking into consideration the resolution passed by the Gram Panchayat on 5th February, 1999. It, therefore, cannot be said that by taking proceeding under the first resolutions, any illegality can be said to have been committed by the respondents. 12. It is further clear from the record that a notification under section 4 of the act was issued on 26th April, 2000. In the said notification, it has been mentioned that in the exercise of powers vested under Section 4 of the act, the land was proposed to be required for public purpose. It was also stated that any person interested in filling objections, may lodge the same within a period of 30 days from the date of the notification before the Land Acquisition Officer, Jawali, District Kangra. The petitioner lodged his objections, which are clear from the contents of Annexure P-6. The relevant record was produced by learned Advocate General at the time of hearing of the petition which reflected that hearing was fixed on 22nd August, 2000 and after affording reasonable opportunity of being heard to the petitioner, the report was submitted to the Government by the Land Acquisition Officer. The Government then issued a notification under Section 6 of the Act on January 9, 2001, a copy of which is annexed as Annexure P-7. In the said notification, it was stated that the State had decided to acquire land for public purpose at its own expenses in village Barot, Tehsil Fatehpur, District Kangra, HP. and accordingly a notification was issued. The description of the land which was decided to be acquired by the notification was Khasra No. 158/1, measuring 0-02-54 hectares. 13. In the said notification, it was stated that the State had decided to acquire land for public purpose at its own expenses in village Barot, Tehsil Fatehpur, District Kangra, HP. and accordingly a notification was issued. The description of the land which was decided to be acquired by the notification was Khasra No. 158/1, measuring 0-02-54 hectares. 13. Learned counsel for the petitioner relying on several decisions contended that if the land is not acquired for public purpose or no opportunity is given to the land owner or person interested in the land acquisition proceedings, the proceedings from its inception, i.e. from the issuance of the notification under Section 4 of the Act to the notification under Section 6 of the Act would be void ab Initio and fatal to the acquisition. 14. In State of Bihar Vs. Kamoshwar Singh (AIR 1952, SC 252). It had been indicated by the Apex Court that the expression "public purpose" must be construed according to spirit of the time in which a particular legislation is enacted. 15. In our opinion, the connotation is very clear and it has been interpreted in several cases under the Act when land was needed for public purpose. 16. In Munshi Singh and Other Vs. Union of India (AIR 1973 SC 1150), the Court held that mere words in the notification under subsection (1) of Section 4 of the act that the land was needed for "planned development of the area" were not sufficient to satisfy the requirement of law. 17. Obviously, the land can be acquired for public purpose and if there is no public purpose, the provisions of the Act cannot be invoked. 18. In Shri Mandir Sita Ramji Vs Governor of Delhi and Others India (AIR 1974 SC 1868), the Supreme Court held that the Collector while considering the objections under Section 5-A of the Act, must enquire into the matter and give hearing before making the recommendation to the Government as provided therein. His failure, to do so would show that he declined to exercise his jurisdiction. The fact that the ultimate decision has to be made by the State Government does not relieve the collector from performing his statutory duty to enquire into the objections and make the recommendation. His failure, to do so would show that he declined to exercise his jurisdiction. The fact that the ultimate decision has to be made by the State Government does not relieve the collector from performing his statutory duty to enquire into the objections and make the recommendation. The observance of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in the country. When the procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its own notion of justice. 19. The ratio laid down in Shri Mandir Sita Ramji could be pressed- m service had the Collector not afforded hearing to the petitioner. In fact, the case of the petitioner in the petition is that he was not afforded reasonable opportunity of being heard. Looking to the record, however, it is clear that notice was issued to the petitioner, he filed objections and those objections were considered by the collector and the collector after considering them and hearing the petitioner forwarded his recommendation to the State Government. Shri Mandir Sita Ramji, therefore, does not help the petitioner. 20. Similar is the case of Shayam Nandan Pradad and Others Vs. State of Bihar and Others (1993 4 SCC 255). When declaration was made under Section 6 of the act that acquisition land was for cooperative society and it was found that the provisions of Section 5-A of the act have not been complied with nor the provisions of Section 10 of the act read with Section 4 of the Land Acquisition (Companies). Rules, 1963 were-observed. It was held that such acquisition would not be in consonance of law and the matter was required to be considered in proper perspective. 21. In Farid Ahmed Abdul Samad and Another Vs. The Municipal Corporation of the City of Ahmedabad and Another (AIR 1976 SC 2095) the Apex Court held that before compulsorily acquiring the land of a person, personal hearing should be afforded to him. Denial of personal hearing would result in acquisition being invalid from the very inception. 22. The ratio laid down in Farid Ahmed does not apply to the present case since hearing was afforded to the petitioner. 23. Likewise, in Adveppa Irappa Morabad and Others Vs. Denial of personal hearing would result in acquisition being invalid from the very inception. 22. The ratio laid down in Farid Ahmed does not apply to the present case since hearing was afforded to the petitioner. 23. Likewise, in Adveppa Irappa Morabad and Others Vs. State of Mysore and Others (AIR 1968 Mysore 205), the High Court of Mysore held that non-compliance of Section 5-A would result in proceedings under the Act being vitiated. 24. In Kumari Neelima Misra Vs Dr. Harinder Kaur Paintal and (Others (AIR 1990 SC 1402), the Apex Court observed that in certain circumstances, administrative action becomes quasi judicial. Hence, in such cases even if strict compliance with "duty to act judicially" may not be insisted upon, there must be "duty to act fairly", i.e. fairness in action. Duty to act fairly must be presumed to be implicit in such action. 25. In Chandan Singh Gosain Vs State of U.P. and Others (AIR Allahabad 106), it was held by the Court that when objections are to be considered under Section 5-A of the Act by the Collector, he has no authority to accept or reject those objections and the only duty cast no him is to hear the objections, to hold inquiry and submit report to the Government and the Government along can take final decision on the recommendation of the Collector. 26. In the instant case, it is not even the case of the petitioner that any decision has been taken by the Collector. Obviously, the Collector cannot take any decision after hearing the objections. The collector, in the instant case, forwarded his recommendation and final notification under Section 6 of the Act was issued by the Government. 27. In our opinion, once the hearing is afforded by the Land Inquisition Officer, it is the Government which is final authority. Once the Government takes a decision and issues a notification under Section 6 of the Act, it cannot be challenged on the ground that there is no public purpose. The point is no longer res integra and has been finally decided by the Constitution Banch of the Supreme Court in Smt. Somawanti and Others. Vs. State of Punjab and Others (AIR 1963 SC 151). The point is no longer res integra and has been finally decided by the Constitution Banch of the Supreme Court in Smt. Somawanti and Others. Vs. State of Punjab and Others (AIR 1963 SC 151). Considering the provision of sub-section (3) of Section 6 of the Act, the Constitution Bench observed that the declaration under Section 6 of the act "shall be conclusive evidence that the land is needed for public purpose". 28. It was argued before their Lordships of the Supreme Court that the expression used in sub-section (3) of Section 6 is "conclusive evidence" and not "conclusive proof and a distinction was sought to be made between the two connotations i.e. "conclusive evidence" and conclusive proof. 29. Repelling the contention and rejecting the argument, the Court held that there is no difference between the two expressions and once it has been held that the evidence is of a conclusive nature, the Court has no option but to hold that the fact exists. It may be that sometimes a statute may use the expression "conclusive proof and sometimes it may use the other expression "conclusive evidence". But in effect both expressions convey the same meaning. And once finality is attached, the inquiry is foreclosed. 30. In our opinion, the learned Advocate general is also right in relying upon a decision of the Supreme Court in Abdul Hussain Tayabali etc. Vs. The State of Gujarat and Others (AIR 1968 SC 432) that once a notification under Section 4 is issued and inquiry is conducted under Section 5-A of the Act by to Collector and report is submitted by him to the Government, it is not necessary for the Government to afford second opportunity to the land owners. Thus, even if on the basis of the hearing afforded by the Collector, he feels that "the land is not needed for public purpose and forwards his recommendation to the Government. It is not necessary for the state Government while disagreeing with the recommendation that before issuing notification under Section 6 of the Act, a notice must be issued and an opportunity of being heard must be afforded to the land owners. 31. In Kalumlya Karimmiya vs. State of Gujarat and Others ((1977) 1 SCC 715). It is not necessary for the state Government while disagreeing with the recommendation that before issuing notification under Section 6 of the Act, a notice must be issued and an opportunity of being heard must be afforded to the land owners. 31. In Kalumlya Karimmiya vs. State of Gujarat and Others ((1977) 1 SCC 715). It was held that non supply of the copy of the Collectors report on the conclusion of the hearing where no malafide is alleged, would not be fatal to the acquisition proceedings, the reason being that it is not necessary for the State Government under Section 6 of the Act to afford second hearing. 32. In N. Narasimhalah and other Vs. State of Karnataka and Others ((1996) 3 SCC 88), the Apex Court held that the purpose of inquiry under Section 5-A of the Act is whether the land is needed for public purpose and the affected owner gets right to show that the public purpose mentioned in sub-section (1) of Section 4 of the Act is not public purpose or some other land is more suitable or is available for public purpose or his land needs to be excluded from public purpose as the proposed land may be in excess of requirement. 33. In our opinion, this argument is not available to the learned counsel for the petitioner while invoking the extra ordinary jurisdiction of this Court under Article 226 of the constitution. The limited scope of inquiry before this Court is whether the provisions of the Act have been complied with or not and whether the action taken was in bona fide exercise of powers and not whether the land of the petitioner could be spared. 34. In Delhi Administration Vs. Gurdip Singh Uban and Others ((2000 7 SCC 296), the Supreme Court ruled that the argument that while rejecting the objections, detailed reasons must be recorded, is not well founded. No reasons or other factors need be mentioned on the face of the declaration. If the satisfaction of the Government is challenged in a competent Court, it is open to the Government to justify such satisfaction on the basis of the record upon which the Government acted. 35. No reasons or other factors need be mentioned on the face of the declaration. If the satisfaction of the Government is challenged in a competent Court, it is open to the Government to justify such satisfaction on the basis of the record upon which the Government acted. 35. It is, therefore, not necessary that while issuing notification under Section 6 of the act, it is obligatory on the part of the State Government to consider the objections lodged by the owner or the person interested in the land and how they had been dealt with by the Collector. Ultimately, it is the satisfaction of the Government, which is material. And if such satisfaction has been arrived at in bonafide exercise of powers which can be proved from the record, an action cannot be interfered by the High Court in exercise of powers under Article 226 of the Constitution of India. 36. The learned counsel for the petitioner contended that the action has been taken only to favour or accommodate one person Narinder Singh Sandhu. But the first resolution dated 5th February, 1999, on the basis of which the proceedings were initiated, fairly shows that it was for path to the Mohalla. It was also mentioned in the said resolution that the route was very much in existence, but it was sought to be obstructed by the petitioner. If in the light of the above facts and circumstances a resolution was passed by the Gram Panchayat, proceedings were initiated. Notification under Section 4 of the Act was issued, objections were invited under Section 5-A of the act and after considering them, recommendation was made and final notification under Section 6 of the Act was issued by the Government, by no stretch of imagination it can be said that the lad was acquired in colourable exercise of powers or with an oblique motive land. Even that contention also, therefore, does not detain us. 37. For the foregoing reasons, we are of the opinion that no case has been made out and all the contentions raised on behalf of the petitioner are liable to be rejected. 38. The petition is accordingly dismissed. Notice discharged. In the facts and circumstances of the case, there will be no order as to costs.