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2004 DIGILAW 260 (JK)

S. Naseeb Singh v. State

2004-09-17

PERMOD KOHLI

body2004
What is assailed in the present petition, is a decision dated 3.6.1991 taken by a High Level Committee of the Government in its 14th meeting where under the property of petitioner was taken under a package deal. According to petitioners case, property of petitioner was acquired and sought for widening of Shaheed Ganj Road in Srinagar city. Petitioner had some proprietary land besides 1 kanal 8 marlas and 81 sft Nazool land , which was also in possession of petitioner. Petitioner had constructed residential house on the said land. In the High Level Committee of the Officers under the chairmanship of Divisional Commissioner, Kashmir, a package deal was settled with the petitioner where under the property was taken over and an amount of Rs. 8.00 lacs was settled as compensation for the land under and appurtenant to the structures besides an amount of Rs. 1.46 lacs as incentive , subject to handing over of the possession of the land free from all encumbrances to the department before 01.8.1991 and withdrawal of the case from the court. . Under the package deal, the government also promised free plots to the residents owner (s) against cash payment. In Housing Colony. This package deal was accepted and property handed over after accepting the compensation. It has not been indicated in the petition, whether any plot has been acquired by the petitioner on the basis of the aforesaid package deal or not. Petitioner after handing over the property under the deal, has approached this court after ten years seeking to challenge the aforesaid decision( deal ) dated 3.6.1991 on the sole ground that the land which was acquired for widening of the road, has been utilized for construction of the shopping complex and the shops given on rent to the people . According to petitioner, public purpose for which the property was taken over, has not been achieved rather the property of the petitioner has been taken over under the threat of compulsory acquisition , as such action of the respondents is unconstitutional .It is further stated that if the property would have remained with the petitioner ,he would have utilized the same for commercial purposes and made fortune .However, he has been deprived of the same by the respondents. In addition to the decision dated 3.6.1991, there is Government Order No. Rev( NDK) 170 of 1984 dated 31.8.1984, where under Nazool land measuring 1 kanal 8 marlas 81 sft. under possession of petitioner as lessee has been resumed , in view of expiry of period of lease on 19.12.1979. An amount of Rs. 2.933 lakhs was also assessed as compensation for the structure existing on the land. As far proprietary land is concerned, sale deed has been executed by petitioner in favour of respondent- State @ Rs. 50/- per sft in terms of the decision dated 3.6.1991. In response to the challenge of the petitioner to the acquisition, it is stated in the counter filed in the court, that the land was required for public purpose namely for widening of the Shahid Ganj Road. After utilization of part of the land for the above said purpose, the surplus land has been utilized for construction of shopping complex to accommodate the shop keepers, whose shops were demolished for purposed of widening of the road near Jahangir Hotel, Srinagar. I have heard learned counsel for the parties. Indisputedly , the property was sought to be taken over for public purpose namely widening of the road. It is admitted case of the parties that part of the property has been utilized for the purpose. Petitioner has received compensation for the property. Sale deed has been executed by him in respect to the proprietary land. Nazool land, which was in his possession as lessee, stands resumed by issuance of Government Order, which also indicates expiry of the lease before the resumption. Petitioner has not only received the price of the proprietary land but also compensation of Rs. 8.00 lacs for handing over of possession of the land, Rs. 2.933 lacs as compensation for the structure and incentive of Rs. 1.45 lacs. There is also provision for allotment of the plots to the owner in the housing colony. None of the parties have said anything about the allotment of plots. However, petitioner has no-where stated that any part of the package deal has remained unfulfilled. Therefore, inference can be drawn that plots have also been allotted to him. Mr. 1.45 lacs. There is also provision for allotment of the plots to the owner in the housing colony. None of the parties have said anything about the allotment of plots. However, petitioner has no-where stated that any part of the package deal has remained unfulfilled. Therefore, inference can be drawn that plots have also been allotted to him. Mr. P.N. Raina, learned counsel for petitioner relied upon case titled Abdul Hussain Tayabali etc v. the State of Gujarat and Others, AIR 1968 SC 432, wherein the Apex Court held as under: " 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 material 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 Somavantis Case, ( 1963) 2 SCR 774: ( AIR 1963 SC 151) and rejected by this Court." Mr. Raina has further relied upon a constitution bench judgment in case titled R.L. Arora v. State of Uttar Pradesh and Others reported as AIR 1964 SC 1230. In this case the land was sought to be acquired for company, which was to establish an industry. The company was required to execute an agreement that it shall utilize the land for the purpose for which the land is being acquired and for no other purpose. What is sought to be impressed upon is, that it is obligatory for the State or the indenting body to utilize the land for the public purpose, it has acquired. In the decision of the constitution bench judgment referred to by Mr. Raina , certain provisions of the Land Acquisition Act relating to acquisition of land for company, were held to be valid. It has been held that such provisions do not offend Articles 31 and 14 of the Constitution of India. The Apex Court also happens to deal with the issue where the land is acquired for public purpose and the owner also had the intention to utilize it for the same purpose. What was observed by the Apex Court in the constitution bench judgment in case R.L. Arora v. State of Uttar Pradesh and Ors. The Apex Court also happens to deal with the issue where the land is acquired for public purpose and the owner also had the intention to utilize it for the same purpose. What was observed by the Apex Court in the constitution bench judgment in case R.L. Arora v. State of Uttar Pradesh and Ors. (supra), is being noticed hereunder: "..Lastly it is urged that the petitioner who was a businessman was intending to use the land for erecting a factory. He could not do so because certain rules did not permit him to build a factory adjacent to the military installations which had been put up by the Defence Department on adjoining land. It is urged that it could not be the purpose of the Act that land was intended to be used for one public purpose should be acquired for another public 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 the validity of the acquisition is concerned provided the acquisition is for a public purpose." On the other hand, Mr.A.H. Qazi, AAG has relied upon a decision of the Apex Court in case titled Northern Indian Glass Industries v. Jaswant Singh and Others, AIR 2003 SC 234, wherein the Apex Court held as under: " ... In our view, the High Court was also not right in ordering restoration of land to the respondents on the ground that the land acquired was not used for which it had been acquired. It is well settled position in law that after passing the award and taking possession under Section 16 of the Act, the acquired land vests with the Government free from all encumbrances . Even if the land is not used for the purpose for which it is acquired, the land owner does not get any right to ask for revesting the land in him and to ask for restitution of the possession.." Mr.Qazi, AAG has also relied upon a case titled Ghulam Mustafa and others v. the State of Maharashtra and Others reported as AIR 1977 SC 448, wherein the acquisition of land for construction of village market , is held to be a public purpose. In the instant case, the land was acquired for widening of the road and a part of it has been used for the purpose. It cannot be said that there is no public purpose. After acquiring the land under a package deal and under the circumstances indicated hereinabove, it is evident that the property vests with the respondent- State free from all encumbrances. Petitioner ceases to have any lien or claim over the property after having received sale consideration, compensation both for the land and structure as also the incentive. Respondents were/are at liberty to utilize part of the acquired property for public purpose for which it was acquired or even for any other public purpose. The construction of the shopping complex to accommodate the shop- keepers who were uprooted on account of widening of the road, cannot be said to be alien to public purpose. It is constitutional obligation of a welfare state to rehabilitate the persons, who have been uprooted and deprived of source of their livelihood on account of the widening of the road, which is a larger public purpose. The Apex Court has clearly approved the right of the State to utilize the acquired property for the public purpose for which it was acquired and / or any other public purpose so long the utilization is for public purposes. The petitioner has absolutely no right to challenge the decision or the acquisition on the ground raised in the writ petition as noticed above. There is another reason which is sufficient to refuse the relief to the petitioner. Petitioner has enjoyed the compensation for a period of ten years and came to challenge the acquisition of property handed over by him voluntarily under a package deal and by a valid sale deed, after a period of ten years. In AIR 2003 SC 234, a challenge to the acquisition after 17 years was rejected on the ground of delay. Similarly, challenge to the acquisition made after a period of 22 years, has been rejected by the Apex Court in case titled Haryana State Handloom and Handicrafts Corporation Ltd. and another v. Jain School Society, AIR 2004 SC 850, in which it has been held as under: " ... The respondents did not need to wait 22 years to see that nothing was being done to utilize the land. The respondents did not need to wait 22 years to see that nothing was being done to utilize the land. The High Court was entirely in error in stating that the respondents could not be accused of any delay and that the delay in fact showed the bona fides of the respondents. Further, the High Court seems to have overlooked the fact that the respondents had applied for enhancement of compensation and had filed a writ petition only after those proceedings were over." For what has been stated above, there is no merit in this petition, which is accordingly dismissed.