Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 536 (UTT)

Rajesh Kumar v. State of Uttarakhand

2014-11-26

SUDHANSHU DHULIA

body2014
JUDGMENT : Sudhanshu Dhulia, J. 1. In all these three writ petitions, the petitioners before this Court have challenged the notification dated 07.02.2006 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “Act”). By the aforesaid notification the Government has also exercised its power under Section 17 of Act and dispensed with the provision of Section 5A of the Act. 2. A preliminary objection has been raised by the counsel for the respondent regarding the maintainability of the Writ Petition Nos. 1129 of 2007 and 1132 of 2007 on grounds that all the petitioners in these two writ petitions are subsequent purchasers of the land, i.e. they have purchased the land after the notification dated 07.02.2006 under Section 4 of the Act. It is an admitted fact that they have purchased the land on 08.02.2006 i.e. a day after the notification dated 07.02.2006. 3. Learned counsel for the respondent would hence argue that challenge to the notification under Section 4 of the Act for any reason whatsoever does not lie with the petitioners, in fact, the writ petition is not maintainable at their hands, as at the relevant time when the notification was issued they had no right or title or interest over the land in question. 4. Reliance is also being placed on a decision of Hon’ble Apex Court in V. Chandrasekaran & another Vs Administrative Officer and others reported in (2012) 12 SCC 133 wherein the challenge to the said notification at the hands of persons, who had similarly situated, as petitioners in WPMS Nos. 1132 of 2009 and 1129 of 2007 was an issue. In the said judgment, the Hon’ble Apex Court has held that the writ petition was not maintainable by such persons, who have been the subsequent purchaser, the relevant paragraph reads as under:- “15. The issue of maintainability of the writ petitions by the person who purchases the land subsequent to a notification being issued under Section 4 of the Act has been considered by this Court time and again. In Lila Ram V. Union of India this Court held that, any one who deals with the land subsequent to a Section 4 notification being issued, does so, at his own peril. In Sneh Prabha Vs. In Lila Ram V. Union of India this Court held that, any one who deals with the land subsequent to a Section 4 notification being issued, does so, at his own peril. In Sneh Prabha Vs. State of U.P,, this Court held that a Section 4 notification gives a notice to the public at large that the land in respect to which it has been issued, is needed for a public purpose, and it further points out that there will be “an impediment to any one to encumber the land acquired thereunder”. The alienation thereafter does not bind the State or the beneficiary under the acquisition. The purchaser is entitled only to receive compensation. While deciding the said case, reliance was placed on an earlier judgment of this Court in Union of India v. Shivkumar Bhargava. 16. Similarly, in U.P. Jal Nigam v. Kalra Properties (P) Ltd., this Court held that, purchase of land after publication of a Section 4 notification in relation to such land, is void against the State and at the most, the purchaser may be a person interested in compensation, since he steps into the shoes of the erstwhile owner and may therefore, merely claim compensation.” 5. Although learned counsel for the petitioners replied to the submission that the facts of the present case is different, as the case before the Hon’ble Supreme Court, the subsequent purchasers were the one who had purchased the land after long period from the date of the notification, and therefore factually the present case would differ. However, the fact remains that in the case at hand the petitioners were not the owner of the land on the date of the notification but became its owner thereafter. 6. On the date of the Section 4 notification, the petitioner had no interest or title on the property. Moreover, it is also a common knowledge that though the notification of Section 4 was published on 07.02.2006, however prior to the notification there is a field work and enough paper work precedes. Learned counsel for the Mandi Samiti, for whose benefit the land was acquired, states that the Mandi Samiti, was already negotiating with the previous owners of the land. Therefore, it cannot be said that the petitioners were not having knowledge about the said purchase. But in any case they have admittedly purchased the land after notification under Section 4 of the Act. Therefore, it cannot be said that the petitioners were not having knowledge about the said purchase. But in any case they have admittedly purchased the land after notification under Section 4 of the Act. Therefore, the writ petitions (WPMS Nos. 1132/2007 and 1129/2007) are not maintainable and the same are hereby dismissed. 7. Regarding the claim of the third petitioner (in WPMS No. 1128 of 2007), the land has been acquired by the State for opening a “Mandi Yard”. There is definitely a public purpose involved in it. 8. Learned counsel for the petitioners has relied upon a decision of Hon’ble Apex Court in Dev Sharan & others Vs State of Uttar Pradesh & others reported in (2011) 4 SCC 769 . 9. In the above mention case the Hon’ble Apex Court, had quashed the notification under Section 4 and 6 of the Land Acquisition Act and had held invoking emergency provisions of Section 17 (4) of the Act, thereby depriving the petitioners/appellants their valuable rights under Section 5-A would not be justified. 10. While doing so the reasoning given by the Hon’ble Apex Court, in Paragraph 15 of the said judgment is as follows:- “15. Admittedly, the Land Acquisition Act, a pre-constitutional legislation of colonial vintage in as drastic law, being expropriatory in nature as it confers on the State a power which affects person’s property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property, other rights become illusory. This Court is considering these questions, especially, in the context of some recent trends in land acquisition. This Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State.” 11. Thereafter regarding invocation of Section 17 (4) i.e. the emergency clause, the Hon’ble Apex Court states that while considering the case of marginal farmers, referred to as “little Indians” in Para 19 of the said judgment, it further states as under: “Therefore, the concept of public purpose on this broad horizon must also be read into the provisions of emergency power under Section 17 with the consequential dispensation of right of hearing under Section 5-A of the said Act. The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. If public purpose can be satisfied by not rendering the common man homeless and by exploring other avenues of acquisition, the court, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice”. 12. Whether the petitioners before this Court can be described as a “little farmer” is also to be seen as according to the respondents he is nothing more than a “property dealer”. In any case petitioners claim as a bonafide farmer is yet to be established. 13. Be that as it may, this Court is also of the opinion that under the circumstances the petitioners were liable to be heard. In view thereof, the WPMS No. 1128 of 2007 is allowed to the extent that further proceedings in the acquisition shall not be made till the petitioners have been given reasonable opportunity of hearing by the Collector/Special Land Acquisition Officer. The petitioners will be at liberty to make representation and apprise the Collector/Special Land Acquisition Officer that the purpose of the State can be achieved by acquiring land other than of the petitioners. The petitioners are further at liberty to give explanations/reasons to the authority concerned, for the non-acquisition of their land. The concerned authority shall then pass a speaking order therein. Till this is done, further proceedings for acquisition, as far as the petitioners in (WPMS No. 1128 of 2007) are concerned, shall remain stayed. 14. In case such a representation is filed by the petitioners within a period of four weeks from the availability of a certified copy of this order, the concerned Officer shall hear the matter and pass an order therein within six weeks thereafter in accordance with law. 15. It is also made clear that this Court has not quashed the notification under Section 4 of the Act, but has given an opportunity of hearing to the petitioners in the interest of fair play and natural justice, as the only question before this Court was that the petitioners were liable to be heard before the said acquisition. 16. The matter is disposed of accordingly. No order as to costs. 17. Interim order dated 30.10.2006 passed by this Court is also vacated.