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2002 DIGILAW 171 (JK)

Mohan Lal v. State

2002-05-23

S.K.GUPTA, T.S.DOABIA

body2002
1. This Public Interest Litigation projects the cause of about 2000 persons residing in Katra town or its suburbs. It is stated that this category of people do not have residential houses. According to them, the State of Jammu and Kashmir as a welfare State took some steps in terms of State Town Planning Act of 1963. In para 4 of the petition, it is submitted that a notification was issued on 2nd July 80 This is Annexure A with the petition. It is submitted that 183.20 acres of land was earmarked for residential purposes and also for providing other facilities like shopping centre, school, reading room, health centre, post office, water storage tank etc. for the residents of the area. The Khasra Nos, which were to be utilized for the scheme and so far as these pertain to village Kundrorian have been enumerated in Annexure C. According to the petitioners, the total land earmarked for residential purposes is about 350 standard kanals. What has led the petitioners to approach this Court is the issuance of the notification, Annexure F. This is dated 29th Dec 97. About 547 kanals 6 marlas and 1/2 sf.ft of land located in Kundrorian, Katra and Arli Hansali is being acquired for the purpose of constructing a new bus stand. It is, as indicated above the issuance of this notification, which has led the petitioners to approach this Court. It is urged that by issuing this notification, the purpose which was enumerated in notification dated 2nd July 80 is going to be frustrated. It is further submitted that when the notifications were issued under the Land Acquisition Act, then there was no publication by way of a public notice to be affixed at convenient places in the said area or there was no publication in the newspapers. It is urged that as the land stands notified for construction of residential houses, therefore, the land in question cannot be now utilized for construction of a bus stand. It is submitted that making a provision for residential house enables a citizen to live a respectable life and denial of this privilege would amount to denial of right conferred under Article 21 of the Constitution. In a nutshell, the challenge to the notification dt. It is submitted that making a provision for residential house enables a citizen to live a respectable life and denial of this privilege would amount to denial of right conferred under Article 21 of the Constitution. In a nutshell, the challenge to the notification dt. 29th Dec 97 is interalia on the following grounds: - i/ That the land in question was notified under the State Town Planning Act of 1963; ii/ That once the land is so notified under the Act of 1963, then, it is supposed to be utilized for that purpose only; iii/ That the land is supposed to be used for residential purposes, and therefore, the use of land for construction of a bus stand is not justified; iv/ That before issuing a notification, the publication was not done in accordance with the law. 2. The State has denied the pleas put across by the petitioners. It is submitted that the construction of a bus stand is a public purpose. It is stated on account of increase in the traffic and the fact that large number of pilgrims are coming to pay homage at Mata Vaishno Devi, a necessity arose to construct a bus stand. It is stated that this would be helpful for the residents of the area also It is submitted that the sole consideration of constructing this bus stand is to provide a public utility service to the pilgrims and visitors of the town and the oblique motive as suggested in the writ petition is incorrect. It is further stated that the notifications under Sections 4 and 6 of the Land Acquisition Act were issued after complying due formalities. It is accordingly submitted that the petitioners who want an individual purpose to be served cannot seek any relief in this Public Interest Litigation. 3. The argument that the State Government had issued a notification on 2nd July 80 under the Act of 1963 and in that notification the land was reserved for residential purpose, and therefore, further steps cannot be taken with a view to acquire the land for construction of a bus stand be examined at the first stage. 4. In the very notification on which reliance has been placed by the petitioners, there is a provision for parking and bus stand. The land which is to be utilized for this purpose is the extent of 3.80 acres. 4. In the very notification on which reliance has been placed by the petitioners, there is a provision for parking and bus stand. The land which is to be utilized for this purpose is the extent of 3.80 acres. This is so mentioned at SI.No.17 of the annexure appended to the notification. So far as residential purpose is concerned, there is a stipulation to the effect that an area of 183.20 acres of land is to be utilized for the same. The total land which was subject matter of Town Planning is to the extent of 406.00 acres. The issue regarding construction of a bus stand was considered by the Chief Town Planner, Jammu. Keeping in view the tourists traffic and the number of pilgrims who visit the Mata Vaishno Devi, a proposal to have a new bus stand was undertaken. A project report was prepared This is annexure E with the writ petition This appears to have been prepared in the month of May 96. Thereafter acquisition proceedings were taken. If this be the position and if there is a provision for parking and bus stand in the scheme which was formulated vide notification issued on 2nd July 80, and if a provision has been made for providing a bus stand in the said scheme, then no exception can be taken to the decision which has now been taken. 5. At this stage, the purpose for which the State Town Planning Act of 1963 was brought on the Statute book be also examined. 6. The preamble of this Act makes mention of the fact that this is an Act meant for making a provision for the development of the State according to plan and for matters ancillary thereto. Chapter II deals with the matter which fall within the purview of the Act. How a scheme is to be framed is dealt in Chapter III. The penal provisions have been contained in Chapter IV, Penalties are provided. Any person who erects or proceeds with construction of any building, structure or work in contravention of the scheme can be penalised under Section 12, Order of demolition of building can be passed under Section 13. Chapter VI deals with acquisition of land if it is required for carrying on purposes of Act of 1963 and for giving effect to a scheme prepared under the Act. Chapter VI deals with acquisition of land if it is required for carrying on purposes of Act of 1963 and for giving effect to a scheme prepared under the Act. Thus a perusal of the above Act makes it apparent that it deals with two matters: - i/ To frame a scheme which may cover matters which fall under Chapter II. After this is done and after the scheme is finalised and after the purpose for which the land is to be utilized is identified, then any person found to be contravening the same can be held liable and penalised under Chapter IV; and III. To acquire a land if it becomes essential to carry out the purpose of the. Act. 7. In the present case, the State only indicated the purpose for which the land could be utilized. It never took any step with a view to acquire the land in terms of Chapter VI of the aforesaid Act. It is in these circumstances, resort was taken to Sections 4 and 6 of the Land Acquisition Act. The land has been acquired for a public purpose of constructing a bus stand. 8. As to what is meant by public purpose be also taken note of. The scope of expression public purpose is not static and must change with varying concept, time, state of society and its needs. Therefore the proper approach is to consider the scheme of acquisition as a whole and then examine whether the entire scheme of acquisition is for public purpose or not. The question will have to be decided in each case on the touch stone as to whether the acquisition is in the interest of community or section of society as distinguished from private interest of an individual. 9. The further question as to whether recourse could be taken to the Land Acquisition Act when scheme stood framed under the Act of 1963 be also examined. As a matter of fact, much has been said qua this aspect of the matter. In the case of Gandhi Grah Nirman Sahkari Samiti Ltd., v. State of Rajasthan and others, AIR 1994 SC 2329, the precise question arose. This was as to whether when land has been notified for being used for a particular purpose under a statute could it be used for another public purpose. In the case of Gandhi Grah Nirman Sahkari Samiti Ltd., v. State of Rajasthan and others, AIR 1994 SC 2329, the precise question arose. This was as to whether when land has been notified for being used for a particular purpose under a statute could it be used for another public purpose. It was observed that once it is found that the acquisition is for a public purpose, then no fault can be found with the proceedings on the ground that the land is already being used for some other public purpose. This question was also considered by a Division Bench of Andhra Pradesh High Court in the case of M. Padmanabha lyengar v. The Government of Andhra Pradesh and ors, AIR 1990 AP 357. The argument put across was that the land is being used for a public purpose, and therefore, this should not be acquired. This argument was repelled. It was observed that merely because a particular piece of land is used for a public purpose, then, this does not take away the power of the State to acquire the land compulsorily. Thus, to say that land was notified under the Act of 1963, and therefore, it could not be acquired under the Land Acquisition Act is an argument which cannot be accepted. 10. So far as non compliance of provisions of Sections 4 and 6 of the Land Acquisition Act are concerned, the State has taken a clear stand that notices as required under the above Section were published. It is not the case of petitioners that it is their land which is subject matter of notification issued under Section 4 and 6 of the Land Acquisition Act. The interest which they have projected is that the land is earmarked for residential accommodation, and therefore, by the change of proposal, they are likely to be affected. The term "person interested" stands defined under Section 3(b) of the above said Act. This refers to those persons who are claiming an interest in compensation to be paid on account of the acquisition of land under this Act. The term "person interested" stands defined under Section 3(b) of the above said Act. This refers to those persons who are claiming an interest in compensation to be paid on account of the acquisition of land under this Act. It is mentioned that "a person shall be deemed to be interest in land if he is interested in an easement affecting the land," As indicated above, the only interest which has been projected by the petitioners is that as the land was to be used for residential purposes, therefore, the State cannot change its user. This argument as projected cannot be accepted because: i/ The petitioners do not fall within the definition of term "person interested"; ii/ The fact that 8.80 acres of land was supposed to be utilized for parking and bus stand is mentioned even in the scheme under of Act of 1963; iii/ When earlier notification was issued, it was nowhere mentioned that the land which is subject matter of acquisition is going to be used for residential purposes. 11. The petitioners have placed reliance on a letter dt. 17th July 99. This letter makes mention of the fact the land comprised in khasra Nos, referred therein is meant for residential purpose as per the land use plan for 1999-2000 of Katra town. The figure 1999-2000 has been changed to 1980-2000. Leaving the matter as it is, the argument put across by the petitioners that the land having been notified under the 1963 Act cannot be used for construction of a bus stand cannot be accepted. The construction of a bus stand is also a public purpose. The land to the extent of 8.80 acres has been earmarked in the scheme for the said purpose. Infact, the owners were never deprived of their ownership right. Only the purpose for which the land could be utilized was lndicated. Now the land is being acquired for a public purpose under the land Acquisition Act. Therefore, no exception can be taken to it 12 The other argument that making a provision for residential purpose would advance the spirit behind Article 21 of the Constitution be examined. 13. Only the purpose for which the land could be utilized was lndicated. Now the land is being acquired for a public purpose under the land Acquisition Act. Therefore, no exception can be taken to it 12 The other argument that making a provision for residential purpose would advance the spirit behind Article 21 of the Constitution be examined. 13. The Supreme Court in the case of Olga Tellis and others v. Bombay Municipal Corporation and others, (1985)3 SCC 545, while dealing with the plight of pavement dwellers did make some observations in their favour but in the latter decision given in Sodan Singh and others v. New Delhi Municipal Committee and others, (1989) 4 SCC 155, the view expressed was that the pavement dwellers have no absolute right to carry on the business on pavements. The petitioners in the present case were only hopeful that in the event of the scheme being implemented, some provisions would be made for residential purposes. The State has not so far abandoned this policy. It has only chosen to give preference to one public purpose over the other. The petitioners have no vested right to call upon the State to acquire the land for construction of a residential colony. As such, a writ of mandamus cannot be issued in this regard. The land is being acquired for a public purpose i.e. for the construction of a bus stand. This has been found to be essential. Any direction to the State to not to construct the bus stand would defeat the public purpose. 14. This writ petition as such is found to be without merit and is dismissed.