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2003 DIGILAW 201 (JK)

Hafiza Begum v. State Of J. &K.

2003-07-08

PERMOD KOHLI

body2003
Permod Kohli, J. 1. Petitioner has called in question the acquisition proceedings in respect to land measuring 1 Kanal 4 Marlas comprising Survey No. 1494 situate in Town Pulwama as also the tender notice issued under No. B/EEK/88-89/15643-53 dated 31.1.1989 issued by respondent No.4 for construction of a Bank building on the acquired land. During the pendency of the writ petition, the original petitioner Abdul Gani Nangroo died and his legal heirs were brought on record vide order dated 28.3.2000 passed in CMP No. 03/1999. 2. According to the averments made in the writ petition a notification under section 4 was issued for acquisition of land measuring 26 Kanals 7 Marlas comprising survey No. 1494-Min, 1495, 1497, 1498-Min, 1509,1507,1506 and 1508 for construction of Bus Stand at Pulwama, which was for public purpose. The land notified for acquisition included land measuring 1 Kanal 4 Marlas, belonging to the petitioner. The process for acquisition came to be commenced in the year 1982 and completed on 21.7.1984 with the passing of the final award. Petitioner claims to have objected to the acquisition by filing objections on the plea that the purpose for which the land is being acquired is not a public purpose. Petitioner intends to utilize the land for his personal use. 3. This petition came to be filed in August, 1989. The cause for filing the petition appears to be a subsequent tender notice dated 31.1.1989, issued by respondent No.4 whereby tenders were invited for construction of a Bank Building on a part of the acquired land. The acquisition proceedings are being assailed on the twin grounds viz (i) that the public purpose for which the land was acquired having been achieved, left over land is not needed for public purpose; (ii) that the construction of the Bank building is no part of the public purpose for which the land was acquired as it is intended to be given on rent for earning profits. 4. Learned counsel appearing for the petitioner relied upon the judgements of the Apex Court in case Abdul Hussain Tayabali etc. v. The State of Gujarat & Others, AIR 1968 SC 432 and R.L. Arora v. State of Uttar Pradesh & Others, AIR 1964 SC 1230 and submits that once the property is acquired for one public purpose, the same cannot be utilized for the purpose other than public purpose. v. The State of Gujarat & Others, AIR 1968 SC 432 and R.L. Arora v. State of Uttar Pradesh & Others, AIR 1964 SC 1230 and submits that once the property is acquired for one public purpose, the same cannot be utilized for the purpose other than public purpose. The ratio of the aforesaid judgments is as follows. In Abdul Hussain Tayabalis case (supra) their Lordships have held as under:-- "15. As regards proposition No. 4, the only argument urged was that when a particular land is being already used for one public purpose, in this case the manufacture of Sagol a building materal made from lime, the Legislature could not have intended to empower the Government to destroy that purpose and substitute in its place another public purpose. We need only say that a similar argument was urged in Somawatis case AIR1963 SC 151 and rejected by this Court" In R.L. Aroras case (Supra) it has been observed as under:- " x x x It is urged that it could not be the purpose of the Act that land which was intended to be used for one public purpose should be acquires for another punlic purpose. We see no force in this contention either. All that the Act requires is that the land should be required for a public purpose. The intention of the previous owner whatever it may be does not in our opinion enter into the question at all, so far as the validity of the acquisition is for a public purpose. 5. Respondents No. 1 to 4 have filed their objections to the writ petition inter-alia pleading that the petition is barred by delay and latches, having been filed after a period of more than five years and secondly, the acquisition proceedings having been finally concluded cannot be questioned as the petitioner has ceased to be the owner of the property; thirdly the construction of Bank Building is for the convenience of the public at large and thus is part of the public purpose for which the land was acquired. It is also contended that the petitioner at the time of acquisition did not object to the acquisition of the property, but only disputed the quantum of compensation. He having failed to produce any material/evidence for enhancement of compensation, his plea was rejected. It is also contended that the petitioner at the time of acquisition did not object to the acquisition of the property, but only disputed the quantum of compensation. He having failed to produce any material/evidence for enhancement of compensation, his plea was rejected. The amount of compensation already stands deposited with the Collector and thus there is no cause for filing the present petition. It is also stated that the Bank Building has already been completed and no relief can be granted to the petitioner. 6. I have heard the learned counsel for the parties. The public purpose has been defined under section 3 (g) of the Land Acquisition Act. The construction of Bus Stand is admittedly a public purpose as defined under the provisions of Land Acquisition Act. It was on the basis of this public purpose that the compulsory acquisition proceedings were initiated and after the completion of the process the proceedings culminated into passing of the final award on 21.7.1984. Petitioner did not question either the proceedings or the final award for a period of five years and accepted the acquisition as final and binding. What appears to have prompted the petitioner is a tender notice dated 31.1.1989, issued by respondent No. 4 inviting tender for construction of a bank Building on a part of the acquired land which incidentally belonged to the petitioner. The only relevant question that needs to be considered and adjudicated upon is whether the construction of a Bank Building on the part of the acquired land at the Bus Stand constitute a public purpose or not and if not, consequently what are the rights of the petitioner whose land was acquired for public purpose. 7. The question whether the property acquired for a particular public purpose can be utilized for another public purpose came to be considered by the Apex Court in (1996) 3 SCC 471, Union of India & Others v. Jaswant Rai Kochhar & Others, wherein it has been held as under: "It is contended for the respondents that since the acquisition is for housing scheme, the land cannot be used for commercial purpose, namely, District Centre. Therefore, the learned Single Judge and the Division Bench have rightly disapproved the change of the user contrary to the purpose notified in Section 4(1) of the Land Acquisition Act. We find no force in the contention. Therefore, the learned Single Judge and the Division Bench have rightly disapproved the change of the user contrary to the purpose notified in Section 4(1) of the Land Acquisition Act. We find no force in the contention. It is conceded by the learned counsel that the construction of the District Centre for commercial purpose itself is a public purpose. No doubt it was sought to be contended in the High Court that in a housing scheme providing facilities for commercial purpose is also one of the composite purposes and that, therefore, acquisition was valid in law. However, the contention was rejected by the High Court. We need not go to that part. Suffice it to state that it is a well-settled law that land sought to be acquired for public purpose may be used for another public purpose. Therefore, when the notification has mentioned that the land is sought to be acquired for housing scheme but it is sought to be used for District Centre, the public purpose and the nomenclature mentioned in the notification under section 4(1) as housing scheme cannot be construed to be a colourble one. The notification under section 4(1) could not have been quashed on the ground that the land is sought to be used for District Centre, namely, for commercial purpose. It is obvious that the lands acquired for a public purpose should serve only the public purpose of providing facilities of commercial purpose, namely, District Centre. The notification under section 4(1) cannot be quashed on the ground of change of user. The High Court was Wholly wrong in quashing the notification on the ground of change of user." 8. It goes without saying that the construction of Bus Stand in a Town or locality is for common public purpose to provide Transport facilities to the residents of the area. Now a days life without means of transport be it Urban or Rural is impossible. The effort of the welfare State to provide the means of transport from the nearest possible place of a locality needs to be appreciated. It is beyond imagination that the construction of a Bus Stand in a town can be termed as against the public policy. The land having been acquired for construction of Bus Stand and utilized for the purpose itself goes to prove the authenticity of the acquisition proceedings and the intention for compulsory acquisition. It is beyond imagination that the construction of a Bus Stand in a town can be termed as against the public policy. The land having been acquired for construction of Bus Stand and utilized for the purpose itself goes to prove the authenticity of the acquisition proceedings and the intention for compulsory acquisition. Petitioner has not disputed the construction of Bus Stand. Town of Pulwama is a developing and busy town. A large number of people residing in the said area are entitled to all types of facilities which are available to people else-where. "The establishment of Bank at a Bus Stand for convenience of the public at large cannot be said to be alien to the public purpose for which land was acquired and as defined under the provisions of the Land Acquisition Act." In the notification issued for acquisition of the land by the Collector the construction of the Bank Building on a part of the acquired land might not have been indicated, but the construction of the Bank building by the authorities does serve a public purpose. Absence of any stipulation in this regard cannot and will not render the acquisition bad in law. The construction of Bus Stand included all related and allied facilities for the public or commuters which may include establishment of Workshops for repair of vehicles, eating points, provision for Lavatory for public convenience and such like facilities. Establishment of the Bank which also renders services to the public cannot be excluded from the broader basic public purpose i.e. providing facilities at the Bus Stand to the public at large. It does not go against the spirit of the acquisition. The non-mentioning of each and every item that the State intends to provide at the Bus Stand does not in any manner render the acquisition in-valid as is being contended by the petitioner. 9. In view of the discussion made above, I am of the considered view that the construction of Bank Building in a Bus Stand is part of the public purpose for which the land was initially acquired. There does not seem to be any deviation much-less material deviation for the public purpose. This petition is liable to be rejected on another ground having been filed after a period of more than five years from the date of passing of the final award. There does not seem to be any deviation much-less material deviation for the public purpose. This petition is liable to be rejected on another ground having been filed after a period of more than five years from the date of passing of the final award. The Apex Court considered the question of challenge to acquisition proceedings after passing of the award in case C.Padma & Other v. Dy. Secy to Govt of T.N., (1997) 2 SCC 627 wherein it was observed as under: "Shri G. Ramaswamy, learned senior counsel appearing for the appellants, contends that when by operation of Section 44-B read with Section 40 of the Act, the public purpose ceased top be existing, the acquisition became bad and therefore, the GO was bad in law. We find no force in the contention. It is seen that after the notification in GOR 1392 dated 17.10.1962 was published, the acquisition proceedings had become final, the compensation was paid to the appellants father and thereafter the lands stood vested in the State. In terms of the agreement as contemplated in Chapter VII of the Act, the Company had delivered possession subject to the terms and conditions thereunder. It is seen that one of the conditions was that on cessation of the public purpose, the lands acquired would be surrendered to the Government. In furtherance thereof, the lands came to be surrendered to the Government for resumption. The lands then were allotted to SRVS Ltd., 5th respondent which is also a subsidiary amalgamated company of the original company. Therefore, the public purpose for which the acquisition was made was substituted for another public purpose. Moreover, the question stood finally settled 32 years ago and hence the writ petition cannot, be entertained after three decades on the ground that either original purpose was not public purpose or the land cannot be used for any other purpose." 10. Further in case Municipal Council, Ahmednagar & Another v. Shah Hyder Beig & Others, AIR 2000 SC 671, the Apex Court held as under: "In any event, after the awards passed no writ petition can be filed challenging the acquisition notice or against any proceedings thereunder. This has been the consistent view taken by this Court and in one of recent cases (V Padnma v. Dy Secretary to Govt. of T.N., reported on (1997). This has been the consistent view taken by this Court and in one of recent cases (V Padnma v. Dy Secretary to Govt. of T.N., reported on (1997). Similar is the view in an earlier decision of this Court in case of Municipal Corporation of Greater Bombay v. Industrial Development Co. Pvt Ltd, 1996 AIR SCW:AIR 1997 SC 482. Incidentally the decision that noted was also on the land acquisition and requisition under the Maharashtra Regional and Town Planning Act, 1966 and in paragraph 29 of the report, this Court observed: "It is well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4 (1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Art 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Beach of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches." 11. In view of the above, this petition fails and is accordingly dismissed.