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2002 DIGILAW 305 (JK)

Mohd. Yasin Mir v. State Of J. &K.

2002-09-27

SYED BASHIR-UD-DIN

body2002
Petitioners land measuring 52 Kanals and 19 Marlas situated at Village Gagran, more specifically, referred and described with break up in para 4 of the writ petition, is in the process of acquisition for establishing a College at Shopian. After initial abortive attempt to get this land by private. negotiation the Collector (respondent No. 4) has taken steps for acquisition of the land under Land Acquisition Act (here inafter a1so referred as Act). Notice u/s 4 of the Land Acquisition Act was issued on 24.11.1999 and published in Government Gazette, Notice u/s 9 of the Land Acqusition Act has been also issued. Petitioners pray for certiorari for quashment of both the notices and mandamus requiring the respondents not to acquire the land in question. 2. The grounds tendered by the Ld. Counsel in his submission while soliciting for the relief prayed for and as averred in the petition are that the Government had taken policy decision to acquire the Government land for costruction of colleges which do not have their own buildings. By acquiring the land, the Collector Land Acquisition has gone beyond this decision of the Govt. The mandate of Section 4 of the Act is publication of preliminary notice in two daily newspapers having largest circulation in the locality of which atleast one shall be in the regional language and a public notice of the order in the locality by the mode of beat of drum and through the local Panchayat and Patwari. This mode of publication and public notice has not been follwed, in as much as, there has been neither publication nor public notice of preliminary notice/ order. Petitioner whose only source of income is the land and its fruit trees, cannot be deprived of their sustainance and right to own and possess the property (land) in question, as it would amount to infringing the fundamental rights of petitioner to livelihood and thereby notice u/s 4 of the Act is constitutionally invalid. 3. Respondents through Collector SDM Shopian have filed objections. The contention put-forth by petitioner is constested and refuted. The land is stated to be required for public purposes, in as much as Degree College Shopian is to come up on the site. Process of acquisition of the land by private negotiation was initiated as far as back on 19-11-1991 and 10-12-1991. Respondents through Collector SDM Shopian have filed objections. The contention put-forth by petitioner is constested and refuted. The land is stated to be required for public purposes, in as much as Degree College Shopian is to come up on the site. Process of acquisition of the land by private negotiation was initiated as far as back on 19-11-1991 and 10-12-1991. Petitioners on summons did particiapte in these proceedings held on above two dates . Out of total land in question proposed to be acquired, 27 kanals and 141/2 Marlas have been already acquired through private negotiation. The Government has not taken any policy decision that in case of construction of degree colleges the Govt. land alone is to be made available. The facts are wrongly placed and distorted version on that count is given, notwithstanding the direction of the Government that in all cases where the college buildings are not available, the first attempt should be to look out for Government land for raising such buildings to avoid avoidable expenses on that count. However, in this case on the report of Tehsildar Shopian that no Government land was available in Shopian within 2 KMs., the collectorate had to initiate the acquistion proceedings for acquiring the land in question after Higher Education Department moved an indent for acquisition of land for construction of Degree College on the site at Village gagran which was indentified and selected for acquisition . As the petitioners failed to execute the sale deeds after negotiating privately and agreeing on the deal with the Government department, compulsory land acquisition process had to be resorted to. The preliminary notice u/s 4 of the Act has been notified on 17-04-1994 in response to which Petitioners and others have failed to file objections. However, petitioners all along participated in the acquisition proceedings and have full knowledge of acquisition proceedings since 1991. Petitioners having failed to challenge the notification for long six years and having also participated in the proceedings should not be allowed to challange the acquisition itself. The case suffers from unreasonable delay and laches. The preliminary notice is stated to have been duly published and served in compliance with provisions of Sectoin 4 of the Land Acquisition Act. The petitioners filed presentation and applications before, the Govt. in July, 1996 and Revenue Minister in March 1997. Petitioners are also stated to have filed objections to the acquisition proceedings. The preliminary notice is stated to have been duly published and served in compliance with provisions of Sectoin 4 of the Land Acquisition Act. The petitioners filed presentation and applications before, the Govt. in July, 1996 and Revenue Minister in March 1997. Petitioners are also stated to have filed objections to the acquisition proceedings. No prejudice has been caused to petitioners. Petitioners have full knowledge of acquisition. Even at this stage final award stands passed by Collector on 17.4.2001. This award is not challanged in this petition. In the above facts and circumstances, The writ petition is neither maintainable nor merited. 4. There is no dispute that the land is being acquired for Degree College Shopian. The public purpose for acquisition is obvious. The acquisition of land has started in Nov./Dec. 1991 when parties tried to resolve issue of acquisition of land by private negotations. Petitioners partcipated in negotations. Some portion of the land has been acquired in that mode. As the whole land could not be acquired in that manner, compulsory acquisition process was initiated with issuance of notice under section 4 of the J&K State Land Acquisition Act on 17.4.1994. As a matter of expediency and to save some money, Director College Education subsequently in August, 1997, requested District Development Commissioner, Pulwama to make available Government land for construction of College at Shopian pursuant to meeting chaired by Chief Minister to review the requirements to Education sector. But on affidavit, in reply, it is stated that as suitable Govt. land was not available in Shopian within radius of 2 KMS, which could have utilized for the degree college, the respondents had to close this option. The acquisition proceedings had to be pursued. Even otherwise it was an administrative instruction and not a policy decision as projected by the petitioners. Only because the petitioners orchards are on the land, same cannot be a reason to block the acquisition of land for well defined public purpose. After all individual economic or trade interest, has to give way to public interest. The reasonable acquisition procedure whether compulsoy, statutory or otherwise cannot be found fault with on that account. Only because the petitioners orchards are on the land, same cannot be a reason to block the acquisition of land for well defined public purpose. After all individual economic or trade interest, has to give way to public interest. The reasonable acquisition procedure whether compulsoy, statutory or otherwise cannot be found fault with on that account. In the facts and circumstances of the case, it cannot be said and muchless so held that a policy decision has been breached or by-passed in this case while taking steps and initiating the process of acquisition of land under the J&K land Acquisition Act. 5. The preliminary notice under section 4 of the Land Acquisition Act issued on 24.11.1999 is alleged not to have been published and notified to the public in the prescribed mode as laid under section 4 of the Act. Section 4(1) as amended by Act No. IV of 1997 reads as under:- "Publication of preliminary notification and powers of officers thereupon. Whenever land in any locality is needed or is 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 Patwaries; (b) in two daily newspapers having largest circulaion in the said locality of which at least one shall be in the regional language." 6. The notice is stated not to have been fixed at convenient places in Village gagran where the land is situated and even it is alleged that public was not notified need to acquire land for the college in the locality by beat of drum and through local Panchayat and Patwari. Also notice was neither published in Government Gasette nor in two daily newspapers. It is stated that acquisition matter came to petitioners knowldge when notice U/s 9 of the Act was affixd in the Tehsil office. It was then that the petitioners filed their objections. Being so on the basis of cited authority State of Mysore v. Abdul Razak, AIR 1973 SC 2361, it is submitted by petitioner counsel that the notification is invalid and consequently the whole acquisition process is vitiated. 7. It was then that the petitioners filed their objections. Being so on the basis of cited authority State of Mysore v. Abdul Razak, AIR 1973 SC 2361, it is submitted by petitioner counsel that the notification is invalid and consequently the whole acquisition process is vitiated. 7. However, from reply and record it is seen that after the land in acquisition in village Gagran was identified and selected for acquisition and on failure of the private negotation in which petitioners also participated the compulsory acquisition was resorted to. Notice under section 4 of the Land Acquisition Act came to be issued on 24.11.1999. However, no objections were received by the Collectorate of acquisition. Declaration of requirement of the Land for public purpose under section 6 and order of acquisition of land under section 7 of Land Acquisition Act were made. Public notice under section 9 of the Land Acquisition Act was given on 11.12.1999. Respondents have partcipated in the acquisition proceedings. They have even entered private negotiations with the respondents. Even the rates of compensation too are stated to have been accepted. Petitioners have full knowledge of acquisition proceedings. The notice has been published in two newspapers as prescribed. There is even endorsement that the public notice has been given by beat of drum and also notice was given in the convenient places in locality. Petitioners even in petition admitted that the notice under section 4 has been published in the Government Gazette. This apart as the petitioners have associated themselves in acquisition matter in one, or other form since November, 1991 and have full knowledge about the acquisition and do have partcipated in the proceedings, Petitioners cannot be heard to say that they are prejudiced on that count. Petitioners cannot succeed thereto. 8. After the preliminary notification under section 4 of the Act issued on 24.11.1999, further declaration of intending acquisition under section 6 of the Act and notice under section 9 of the Act too have been isuued. There has been enquiry and even final award is made by the Collector Land Acquisition on 17.4.2001. Petitioners have partcipated in these proceedings. 8. After the preliminary notification under section 4 of the Act issued on 24.11.1999, further declaration of intending acquisition under section 6 of the Act and notice under section 9 of the Act too have been isuued. There has been enquiry and even final award is made by the Collector Land Acquisition on 17.4.2001. Petitioners have partcipated in these proceedings. They have been engaging themselves with the authorities in one or the other form right from November, 1991 and after 1994 with the issuance of notice u/s 4 have partcipated in acquisition proceedings under Land Acquisition Act, They may or may not have filed Objections, but have Knowledge in proceedings with full knowledge of the acquisition proceedings right from begining. In such circumstances, obviously there is delay and the writ also suffers from laches. Though valid notification under section 4 is sine-qua-non for initiation of proceedings for acquisition of property, but when acquisition, proceedings are allowed to be completed on the basis of notification under section 4 of the Act and declaration u/s 6 of the Act, challenging the notification bilatedly after final award is passed by Collector under Land acquistion Act, when the very grounds of challenging were available in the begining when preliminary notification and declaration made, renders the writ petition not maintainable. The whole proceedings in this case give an impression that the process is resorted to by way of dialatory tactics and obviously writ court cannot come to the help of writ Petitioners in such a situation so as to put a premium on such dilatory tactics. See Smt. Ratni Devi v. Chief Commr. Delhi, AIR 1975 SC 1699. In Aflatoon v. Lt. Governor Delhi, AIR 1974 SC 2077 constitutional Bench of the court observed:- " There was apparently no reason why writ -petitioners should have waited till 1972 to come to this court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified . A valid notification under Section 4 is a, sine-qua-non for initiation of proceedings for acquisition of property. A valid notification under Section 4 is a, sine-qua-non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under section 4 and the declaration under section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be puttings premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners." In Hari Singh & Ors. v. State of U.P. & Ors., AIR 1984 SC 1020, Supreme Court in appeal approved the dismissal of the writ petition by the High Court on the ground that the, writ petition did suffer on account of delay and laches when the public notice under section 4(1) of the Land Acquistion Act was challenged nearly 2 and half years after the notification was issued. In like circumstances a Division Bench of Madrass High Court in Mohd. Habibullah v. Spl. Dy.Collector" & Ors., AIR 1967 Madras 118 dismissed the writ petition on the ground that the writ petition has been filed three years after issuance of the notification. 9. Compulsory acquisition of land for a public purpose on payment of compensation is the mode recognized under law. If land is so acquired no grievance can be made of infringment of fundamental rights. In Amballal Purshottam etc. v. Ahmedabad Municipal Corporation and Ors., AIR 1968 SC 1223, it is observed:- "The Land Acquisition Act authorises the appropriate Government to notify land for acquisition which is or is likely to be needed for a public purpose and road widening in a town is undoubtedly a public purpose. After considering the report of the Collector under Section 5-A of the Land Acquisition Act, the Government of Bombay published a notification under section 6(1) of the Land Acquisition Act that the lands were needed for a public purpose. That declaration was, by virtue of Section 6(3) of the Act, conclusive evidence that the land were needed for a public purposes. By the compulsory acquisition for a public purpose, subject to payment of compensation no fundamental rights guaranteed under Articles 19 and 31(2) of the Constitution were infringed. The lands were properly notified for acquisition. That declaration was, by virtue of Section 6(3) of the Act, conclusive evidence that the land were needed for a public purposes. By the compulsory acquisition for a public purpose, subject to payment of compensation no fundamental rights guaranteed under Articles 19 and 31(2) of the Constitution were infringed. The lands were properly notified for acquisition. The compensation payable in respect of the lands has been determined. If there is any grievance which the appellants are entitled to raise in respect of the compensation determined as payable, their remedy lies in approaching the Courts competent to determine that question, The plea of infringment of fundamental rights of the appellants is wholly unsubstantial and. was rightly not raised before the High Court in the writ petitions out of which these arise." 10. It is not a case where petitioner are deprived of their property in acquistion without following due procedure of law. The land is being acquired after following due procedure and mode of acquisition prescribed by J&K Land Acquisition Act. Such acquistion does not offend the, right to own and possess the property under the constitution. 11. So long the acquistion is public purpose individual rights are to yield to public interests. Plea of deprivation of livelihood by compulsory acquistion of land is unsustainable in as much as the owner/claimants are payed compensation solatium and interest. In Chameli Singh v. State of U.P. & Anr. AIR 1996 SC 1051, it is observed:-- "In every acquistion by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercise of the power is for public purpose, the individual right of an owner must yield place to the larger public purpose. For compulsory nature of acquisition, sub section (2) of Section 23 provides payment of solatium to the owner who declines to voluntarily part with the possession of land Acquisition in accordance with the procedure is a valid exercise of the power. It would not, therefore, amount to deprivation of right to livelihood." 12. Yet another important feature of the case which cannot be lost sight of is that the conduct of the petitioners in the facts and circumstances of this case, should disentitle them to any relief. It would not, therefore, amount to deprivation of right to livelihood." 12. Yet another important feature of the case which cannot be lost sight of is that the conduct of the petitioners in the facts and circumstances of this case, should disentitle them to any relief. Knowing well about the acquisition proceedings relateable to their land for setting up the College at Shopian and engaging initially in private negotiation with the respondents to struck the deal (and thereafter partcipating in acquisition proceedings of the land and even as uncontroverteably alleged that they settled even on rate of compensation, their awakening to challange the notification and claim on allegation that they have no knowledge about the acquistion proceedings till notice under section 9 of the Act- came to be issued is sufficient to dismiss this petition. They have taken years together to dig and drag on the matter. The annexures on record A.B.C. do show that they have tried every tricks to derail the acquisition proceedings. They partcipated in the proceedings and only when they failed in their attempts to block the acquisition process, they have filed this writ petition. It appears a case- where dilatory tactics have been adopted to prolong the proceedings and frustrate the attempts of acquising the land for the College. Serious public prejudice is the result, in case peitioners suceed in the writ. The wider public interest also require that petitioner conduct in the matter should not get a premium tag. 13. In result, for the aforesaid reasons the writ petition does not qualify on merits to be admitted for hearing. Dismissed in limini.