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2006 DIGILAW 219 (JK)

Karim Bhat v. State Of J. &K.

2006-10-10

MANSOOR AHMAD MIR

body2006
1. Petitioners have sought indulgence of this Court for issuing writ of certiorari for quashing notification No.DCB/LA/PATT/32 dated 03.03.2004 and notice No.Rev-(LAK)32/4 dated 17.08.2004 so far it effects the rights of the petitioners and also for commanding the respondents not to acquire land of the petitioners description of which is given in the writ petition. 2. It is averred in the petition that petitioners are owners in possession of land measuring 25 kanals 1 marla and the said land is Aabi-Awal meant for paddy growing and cannot be used for any other purpose. It is further averred that petitioners will be deprived of source of livelihood if the land in question is acquired. Further they have averred that Shamilat and Kach-charai land is available which could be acquired instead of land of the petitioners. 3. Respondents have filed objections. It is profitable to reproduce the relevant portion of the objections herein: "Reply to the grounds (a) to (g) In reply to the contentions raised in these grounds, it is submitted that issuance of notification u/s 6 and 7 of the Land Acquisition Act, is ample evidence of the fact that the permission has been accorded by the competent authority required u/s 133 of the Land Revenue Act. The respondents submit that upon a complaint-cum objections against acquisition of land in question, on the ground that there is State/Kahcharai land available in the vicinity of the said land, the Collector was asked by the Deputy Commissioner, Baramulla to visit the area, examine the revenue records and liaise with the local revenue authorities and representatives of the indenting department and ascertain whether any such suitable site/ State-Kahcharai land is available for the said public purpose. The District Collector along with General Manager District Industries Centre, Baramulla, Tehsildar Pattan and Naib Tehsildar, Pattan as well as concerned revenue staff visited the spot on 18.4.2005. It was observed that a chunk of land measuring near about 70Ks recorded as Shamilat/Kahcharai is available in the middle of the village. However the land was found in U shape and there is already a park existing in the land which has been constructed by the Gulmarg Development Authority. Besides, there also exist Iddgah, mosque and Ziarat Sharief in the said patch of land. However the land was found in U shape and there is already a park existing in the land which has been constructed by the Gulmarg Development Authority. Besides, there also exist Iddgah, mosque and Ziarat Sharief in the said patch of land. Some structures have also been found existing on the land and to remove same would cause and create law and order situation/ problem for the authorities. In any case, the matter was taken up with the intending department through General Manager, DIC, Baramulla with the remarks to intimate as to whether the new site could be proposed for the said public purpose. However, the General Manager intimated that the site is not feasible for the public purpose-construction of Industrial Estate. 4. Admit. With the consensus of learned counsel for parties, this petition is taken up for final adjudication. 5. It is for the concerned department-State to see and ascertain the suitability of the land. It is purely an administrative decision which cannot be called into question by the medium of a writ petition. However, the respondents have specifically pleaded that the intending department has considered that objection and opined that the land mentioned in the notification was suitable for the public purpose and not the alternative plot of land. Thus, it is purely an administrative decision and it cannot be called in question before this Court. 6. Apex court also in case titled Bhagat Singh Vs. State of U. P. reported in AIR 1999 SC 436 has held that it is for the State to see which land is sufficient. It is profitable to reproduce para-29 of the said judgment herein: "29. We are of the view that the above facts do show that development of the market is in various phases and the future development of the Market in a growing town like Agra was kept in mind while acquiring this area. It is not for this Court to say that there was no need to acquire the appellants lands for the market and that the remaining land was sufficient. If such a contention were to be accepted, each of the owners could equally advance such an argument making the scheme wholly unworkable. These appeals are therefore liable to be dismissed." 7. Another objection raised by petitioner is that the land in questions is Aabi-Awal and cannot be used for other purposes. If such a contention were to be accepted, each of the owners could equally advance such an argument making the scheme wholly unworkable. These appeals are therefore liable to be dismissed." 7. Another objection raised by petitioner is that the land in questions is Aabi-Awal and cannot be used for other purposes. This argument is also devoid of any force. 8. In terms of Section 133 of the Land Revenue Act, State can grant permission to convert any Aabi-Awal land for any other purpose. 9. The competent authority can seek permission for change of land use. Apex Court in case titled Bhagat Singh Vs. State of U. P. reported in AIR 1999 SC 436 has held as under: "22. As pointed out in the above judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the master plan or Zeal plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. On the principle stated in Aflatoons case (AIR 1974 SC 2077), it is clear that acquisition for a public purpose and obtaining permission from competent authority under the concerned Development Act for change of land use are different from one another and the former is not dependent upon the latter." 23. For the aforesaid reasons this contention of the appellants is rejected." 10. For the aforesaid reasons this contention of the appellants is rejected." 10. In view of the above discussion, I am of the considered view that this petition is not maintainable. Accordingly, this writ petition is dismissed along with all connected CMP(s). Interim direction, if any, shall stand vacated.