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2013 DIGILAW 396 (HP)

JAGDISH CHAND v. STATE OF H. P.

2013-05-07

KULDIP SINGH, SANJAY KAROL

body2013
JUDGMENT KULDIP SINGH, J. 1. THIS judgment shall dispose of CWP No. 10807 of 2012 and CWP No. 1372 of 2013 as common questions are involved in these petitions. 2. THE pleaded case of the petitioners is that they are owners in possession of land comprised in Khasra Nos. 189, 3, 4, 5, 6 and 90 mauza Bhaleth. The adjoining land comprised in Khasra No. 88 is owned by the Government, but the petitioners have bartandari rights over this land. In the year 2007-08 the respondents initiated process for construction of sewerage treatment plant at Sujanpur and for that purpose, the Government land comprised in Khasra No. 88/2 was proposed to be transferred from Revenue Department to I&PH Department. On 15.10.2010 the District Collector, ordered the transfer of the land comprised in Khasra No. 88/2 measuring 4 Kanals 14 Marlas from Revenue Department to I&PH Department for construction of sewerage treatment plant. The mutation No. 9772 to this effect was also attested. In November, 2012, the petitioners came to know that on 13.4.2012 the Revenue Department had attested mutation regarding transfer of land of the petitioners from Khasra Nos. 3, 4, 5 and 6 by carving out Khasra Nos. 3/1, 4/1, 5/1, 6/1 measuring 10 Kanals 9 Marlas. The contractor engaged by the I&PH Department in November, 2012 came to the spot to start the construction work. The aforesaid land measuring 10 Kanals 9 Marlas was transferred to I&PH Department without notice and without the consent of the petitioners. The transfer of the aforesaid land of the petitioners in favour of I&PH Department is illegal and arbitrary. 3. THE petitioners are not against the construction of sewerage treatment plant, but the land of the petitioners has been arbitrarily transferred to I&PH Department. There is sufficient Government land comprised in Khasra No. 88 measuring 28 Kanals 16 Marlas where the sewerage treatment plant can be constructed. The respondents have utilized only 4 Kanals 15 Marlas land from Khasra No. 88 for construction of sewerage treatment plant. In any case, the land of the petitioners comprised in Khasra No. 89 measuring 4 Kanals 16 Marlas could be utilized for construction of sewerage treatment plant which is adjoining to Khasra No. 88. 4. THE respondents did not initiate acquisition proceedings nor any notice or opportunity of hearing was afforded to the petitioners before arbitrarily transferring their land to I&PH Department. 4. THE respondents did not initiate acquisition proceedings nor any notice or opportunity of hearing was afforded to the petitioners before arbitrarily transferring their land to I&PH Department. The I&PH Department is threatening to take forcible possession of the land measuring 10 Kanals 9 Marlas on the plea that the said land has already been transferred to I&PH Department, but the transfer of the land in favour of I&PH Department is wrong and illegal. The entire exercise undertaken by the respondents is in violation of Article 300-A of the Constitution. There are more than 100 share holders of the land comprised in Khasra Nos. 3, 4, 5 and 6 and most of them had been representing the matter at their own level to the Government. The respondent department has illegally got the land transferred in its favour, no proceedings have been undertaken before transfer of the land. Some share-holders have instituted civil proceedings but the petitioners are not aware of particulars thereof nor they are party to such proceedings. The land in khasra No. 88 itself is sufficient for construction of sewerage treatment plant but only 4 Kanals 15 Marlas from that Khasra number has been utilized for the construction of sewerage treatment plant. There is no need to acquire any private land. The petitioners are ready to provide land from Khasra No. 189 which is adjacent to Khasra No. 88. 5. THE petitioners are in actual physical possession of the entire land comprised in Khasra Nos. 3, 4, 5 and 6. On the strength of revenue entries, the respondent-Department is interfering with the peaceful possession of the petitioners. The petitioners have prayed that the respondents may be restrained from construction of sewerage treatment plant on land comprised in Khasra Nos. 3/1, 4/1, 5/1 and 6/1 measuring 10 Kanals 9 Marlas, Mauza Bhaleth. The entries of Khasra Nos. 3/1, 4/1, 5/1 and 6/1 made in favour of I&PH Department may be quashed. 6. THE respondents have contested the petition by filing reply and have taken preliminary objections. It has been stated that the Government had given administrative approval for providing sewerage scheme to Nagar Panchayat, Sujanpur to the tune of Rs. 5,44,68,000/-during 2005 for construction of two sewerage treatment plants for Zone No.1 covering ward Nos. 1, 2, 8, 9 and part of ward No. 7 and in Zone No.2 covering ward Nos. It has been stated that the Government had given administrative approval for providing sewerage scheme to Nagar Panchayat, Sujanpur to the tune of Rs. 5,44,68,000/-during 2005 for construction of two sewerage treatment plants for Zone No.1 covering ward Nos. 1, 2, 8, 9 and part of ward No. 7 and in Zone No.2 covering ward Nos. 3, 4, 5, 6 and part of ward No. 7 as per topography of the area. The department had acquired the land for the construction of sewerage treatment plants for both the Zones, for Zone No.1 the construction is complete. The pipe laying work of Zone No.2 is also almost complete. However, the land owners where the sewerage treatment plant for Zone No.2 is to be constructed, are creating hurdles. The land comprised in Khasra Nos. 3/1, 4/1, 5/1 and 6/1 measuring 10 Kanals 9 Marlas has been acquired for construction of sewerage treatment plant. The petitioners and other co-sharers have been awarded compensation as per award dated 28.2.2009. The State Pollution Control Board, Una has granted consent on 22.9.2010 for construction of sewerage treatment plant. The petitioners never raised objection for acquisition of land, the petition is not maintainable. On merits, it has been stated that the notification under Section 4 of the Land Acquisition Act for acquiring the land in question was issued on 3.12.2005 which was published in official gazette on 24.12.2005. The notification under Sections 6 and 7 was issued on 14.12.2006 which was published in official gazette on 20.12.2006. The award has been announced on 28.2.2009. The total amount including statutory benefits has been deposited with Naib Tehsildar, Land Acquisition, Hamirpur on 30.3.2009. The work for construction of sewerage treatment plant has been awarded to contractor for Rs. 1,19,62,500/- vide award No. 17107-16 dated 3.10.2012 with stipulation for completion of work within nine months. The petitioners are not allowing to start the work. The construction of work of sewerage treatment plant for Zone No.2 which is for the benefit of the people has suffered badly. The respondents shall suffer heavily in the event of claim by the contractor for compensation. 7. THE land transferred from Khasra No. 88 is not technically suitable for the construction of treatment plant as the same falls near to the Government Middle School and was causing nuisance. The people of the area raised objections for construction of sewerage treatment plant on Khasra No. 88. 7. THE land transferred from Khasra No. 88 is not technically suitable for the construction of treatment plant as the same falls near to the Government Middle School and was causing nuisance. The people of the area raised objections for construction of sewerage treatment plant on Khasra No. 88. The State Pollution Control Board on 31.12.2011 did not accord consent for construction of sewerage treatment plant on Khasra No. 88. The Khasra No. 89 is near to Khasra No. 88 and is not suitable for construction of sewerage treatment plant. There is no other suitable site for the construction of sewerage treatment plant except the acquired land. The department has already spent a sum of Rs.5,20,00,000/- on the scheme. It has been stated that there are more than 100 share-holders and only 4-5 persons are objecting to construction of sewerage treatment plant over the land in question. The submission has been made for dismissal of the petition. 8. THE petitioner has pleaded more or less the same case as pleaded by petitioners in CWP No. 10807 of 2012. However, the petitioner in the petition has prayed for quashing of notification dated 3.12.2005 under Section 4, notification dated 14.12.2006 under Sections 6 and 7 of the Land Acquisition Act, 1894. The award No.4/2009 dated 28.2.2009 acquiring land comprised in Khasra No. 3/1, 4/1, 5/1 and 6/1 total measuring 10 Kanals, 9 Marlas Mauza Bhaleth has been assailed with further prayer for quashing of mutation No. 10011 dated 13.4.2012. It has also been prayed that the respondents may be restrained from interfering in any manner and from raising construction over the land comprised in Khasra Nos. 3/1, 4/1, 5/1 and 6/1 measuring 10 Kanals 9 Marlas, Mauza Bhaleth. We have heard Mr.Ramakant Sharma, learned counsel for the petitioners and Mr. R.S.Verma, learned Additional Advocate General with Mr. R.M.Bisht, learned Deputy Advocate General for the respondents in both the petitions. Learned counsel for the petitioners has stated that in the copy of jamabandi 2007-2008 khasra number has been wrongly entered as Khasra No. 189 instead of Khasra No. 89. It has been submitted that no notice before acquiring the land was given to the petitioners. The land of some of the share holders, who were dead has also been acquired without issuing notice to their legal representatives. It has been submitted that no notice before acquiring the land was given to the petitioners. The land of some of the share holders, who were dead has also been acquired without issuing notice to their legal representatives. There is enough land in Khasra No. 88 for construction of sewerage treatment plant, shortage of any land can be made good from Khasra No. 89 which is adjacent to Khasra No. 88. The land over which the respondents intend to construct sewerage treatment plant is surrounded by private holdings of the villagers. The State is proceeding with the construction of sewerage treatment plant over Khasra Nos. 3/1, 4/1, 5/1 and 6/1 measuring 10 Kanals 9 Marlas in high handed manner illegally. 9. ON behalf of the respondents, it has been submitted that at no point of time the petitioners objected the acquisition of the land when the acquisition proceeding was in progress. The construction of sewerage treatment plant on Khasra No. 88 which is adjacent to school was objected by the residents. Khasra No. 89 is adjacent to Khasra No.88, therefore, sewerage treatment plant cannot not be constructed on whole of the Khasra No. 88 together with Khasra No. 89. The construction of sewerage treatment plant at the site selected by the respondents is technically feasible, no other technically feasible site was available for construction of the sewerage treatment plant, therefore, necessity had arisen for acquiring some land which was acquired long time back and even an award dated 28.2.2009 has been made. The respondents have already spent Rs. 5,20,00,000/- over the project. Only a few share-holders are objecting the construction of the sewerage treatment plant and in case their objections are upheld, then the amount already spent will go waste. 10. IT emerges from CWP No. 1372 of 2013 that notification under Section 4 was issued on 3.12.2005, notification under Sections 6 and 7 was issued on 14.12.2006 and the award No. 4/2009 was announced on 28.2.2009. CWP No. 10807 of 2012 was filed on 26.12.2012 and CWP No. 1372 of 2013 was filed on 14.3.2013 i.e. more than seven years after the notification under Section 4 and nearly three years after passing of the award on 28.2.2009. It is admitted case of the petitioners that they never objected the acquisition at any stage of the proceedings till the award was made. It is admitted case of the petitioners that they never objected the acquisition at any stage of the proceedings till the award was made. They however, have taken the stand that the petitioners were not personally served at any stage of the acquisition proceedings. The record has been perused. At page 65 of the award file, there is joint statement dated 8.5.2007 of Mast Ram and others, they have stated that in case the department intends to acquire Khasra Nos. 3/1, 4/1, 5/1 and 6/1 measuring 10 Kanals 9 Marlas, then the department should pay the compensation at the rate of Rs. 50,000/- per Marla and they should be provided free sewerage connection. Jagdish and others in their joint statement dated 8.2.2008 at Page 105 of the award file have objected the acquisition of land for the construction of sewerage treatment plant. They have further stated, in case the government intends to acquire the land, then in lieu thereof, some other land be given to them in Tika Sujanpur. At the reverse of Page-187, there is joint statement dated 20.8.2009 of share-holders refusing to receive the compensation amount. They demanded land in lieu of acquired land from the Government. This statement is signed by many share-holders including Jaswant Singh. 11. THE notices under Sections 4, 6 and 7 of the Land Acquisition Act were published in the official gazette before the award dated 28.2.2009. It has also been established that Jagdish Chand and Jaswant Singh petitioners in CWP No. 10807 of 2012 and Mast Ram, petitioner in CWP No. 1372 of 2013 at one or other stage of the proceedings made statements regarding the acquisition. It cannot be said that the petitioners were not aware of the acquisition and they came to know of the acquisition at or around the time of filing of the writ petitions. The purpose of publication of notifications is not an empty formality, it is with the purpose to give publicity of the acquisition so that an interested person at appropriate stage is in a position to object to the acquisition. The petitioners never objected the acquisition. Their grievance was either of the rate for the acquisition of the land or providing them another land in lieu of their land which was acquired. The petitioners cannot be permitted to espouse the cause of legal representative of such share-holders who died before the award dated 28.2.2009. The petitioners never objected the acquisition. Their grievance was either of the rate for the acquisition of the land or providing them another land in lieu of their land which was acquired. The petitioners cannot be permitted to espouse the cause of legal representative of such share-holders who died before the award dated 28.2.2009. 12. THE respondents have taken the stand that the decision to construct the sewerage treatment plant at the approved site has been taken by the experts. The construction of sewerage treatment plant is not feasible at other place as per the topography of the area. The department has already spent Rs. 5,20,00,000/-, at this stage, it is not possible to shift the site of the sewerage treatment plant. Most of the villagers are in favour of construction of sewerage treatment plant at the site approved by the Department, only a few persons are objecting to the construction of sewerage treatment plant. The award has already been passed and the amount of compensation has been deposited. The State Pollution Control Board has also approved the site. The larger public interest is in favour of the early construction and completion of sewerage treatment plant at the site where the respondents are constructing sewerage treatment plant. In CWP No. 10807 of 2012 there is no prayer for quashing of award dated 28.2.2009. The petitioners have miserably failed to make out a case. The petitions are hit by delay and laches also. In view of above, both the petitions, being CWP No. 10807 of 2012 and CWP No. 1372 of 2013 are dismissed, so also the pending application(s), if any. Record returned.