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2016 DIGILAW 575 (JK)

Dalip Singh v. State of J&K

2016-11-07

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This L.P. Appeal is preferred against the order made in OWP No. 1156/2014, dated 13.10.2016 upholding the land acquisition proceedings initiated against the appellant's land measuring 7 kanals 11 marlas situated at Belicharana Rakh Raipur Jammu for the purposes of detouring of irrigation channel due to expansion of Jammu Airport. The total land involved in the acquisition proceedings was 123 kanals, out of which 111 kanals of land has already been acquired and possession has already been taken over. The grounds of attack raised by the appellant before the writ court was that notification was issued on 22.10.2011 under Section 4 of the Land Acquisition Act, Svt. 1990 was not published as required under Section 4(1)(a) of the Act and the same was also not affixed at a conspicuous place in and around the area/land intended to be acquired, hence the appellant was not aware of the acquisition proceedings initiated and therefore, he could not file objections under Section 5(a) of the Act. It is also contended that declaration under Section 6(a) was also not published and only a notification calling for objections under Section 9 & 9-A of the Act was issued calling upon the interested persons to attend the office of the 2nd respondent for determining the compensation in December 2012 and at that time only the appellant came to the know about the acquisition proceedings and he immediately made a representation to drop the acquisition proceedings. 2. In reply to the said grounds raised, the respondents have filed objections stating that the indent was placed by the Indenting Department i.e. Irrigation and Flood Control Department for acquisition of land measuring 123 kanals situated in village Rakh Raipur Tehsil and District Jammu for detouring of irrigation channels due to expansion of Jammu Airport. The land acquisition proceedings were initiated as per the J & K Land Acquisition Act, Svt. 1990. Notification under Section 4(i) of the Land Acquisition Act was issued on 21.10.2011 calling for objections, if any. The said notification was published in local daily newspapers, however, no objections were received from the appellant. The land acquisition proceedings were initiated as per the J & K Land Acquisition Act, Svt. 1990. Notification under Section 4(i) of the Land Acquisition Act was issued on 21.10.2011 calling for objections, if any. The said notification was published in local daily newspapers, however, no objections were received from the appellant. The Government of J & K, Revenue Department issued notification under Sections 6, 7 & 17 of the Act on 08.11.2012 and thereafter notification under Section 9 & 9-A of the Land Acquisition Act was issued on 18.12.2012, calling for objections if any with regard to quantum of compensation and measurement of the land within the stipulated time. The final award was passed on 24.07.2014 and only after passing the final award determining compensation, writ petition was filed on 02.08.2014. It is the contention of the respondents that the appellant submitted a representation after getting alleged knowledge about the acquisition proceedings on 04.01.2013 and made the following demands in the said objections/representation: "i. Relocation allotment in urban area nearer to this area. ii. Monetary compensation of four lakh per marla minimum. iii. Full monetary compensation in one installment and make your construction work start after paying full amount. iv. Government employment of one family member of each family. v. The Government has valued the cost of our houses structure is 14 lakh and 2 lakh (approximately). But this amount is not enough for constructing new same structure in other place. So please make proper valuation of our structures." 3. The learned Single Judge, considering the plea made by the appellant in his representation dated 04.01.2013, giving up his right particularly objecting the acquisition proceedings and claiming allotment of alternate land, monetary compensation of Rs. 4 lacs per marla, Government employment for one of his family members etc., and having regard to the major project for which the acquisition proceedings were initiated and 111 kanals of lands were already taken possession as well as the delay on the part of the appellant in approaching this Court, challenging the acquisition proceedings i.e. after the award was passed, dismissed the writ petition against which this appeal is preferred. 4. The contention of the learned counsel for the appellant is that mandatory procedures contained in Section 4(1) and Section 6 of the Land Acquisition Act, 1990 were not followed, hence the acquisition of the appellant's land is not valid. 4. The contention of the learned counsel for the appellant is that mandatory procedures contained in Section 4(1) and Section 6 of the Land Acquisition Act, 1990 were not followed, hence the acquisition of the appellant's land is not valid. The writ petition was filed immediately after the award was passed as such there is no delay in filing the writ petition challenging the acquisition. 5. Heard Mr. R.S. Jamwal, learned Deputy Advocate General also who is on caveat. He has supported the acquisition proceedings as well as the order of the Writ Court. 6. We have considered the said submissions and perused the pleadings including the representation filed by the appellant dated 04.01.2013 claimed to be filed after getting knowledge about the acquisition proceedings. 7. It is not in dispute that 123 kanals of land situated at village Rakh Raipur Tehsil and District Jammu was acquired for detouring of irrigation channel due to expansion of Jammu Airport. It is also not in dispute that notification under Section 4(1) of the Act dated 20.10.2011 was published in Daily newspaper on 23.10.2011 calling for objections. The object behind publication of the notification in the newspaper is to give notice to the public or interested persons to file objections if any about the acquisition proceedings initiated. The appellant has not chosen to file objections. The notification under Sections 6 & 7 of the Act was issued 08.11.2012 as there was no objections filed objecting or opposing the acquisition before the acquiring authority or officer. Even assuming the appellant has not noticed the notification issued and declaration made under Sections 6 and 7, the demands raised by the appellant was in respect of the claims/demands as stated supra in his representation dated 04.01.2013. Thus, the appellant was not interested in opposing the acquisition proceedings and was interested in getting alternate land or compensation/employment to one of his family members etc. The learned Single Judge has already granted liberty to the appellant to make a representation before the competent authority for allotment of alternate land and the competent authorities were also directed to consider the prayer in accordance with law by passing a speaking order within a period of two months. Thus, the grievance of the appellant seeking allotment of alternate land is already ordered to be considered. 8. In such circumstances, the right of the appellant is already protected. Thus, the grievance of the appellant seeking allotment of alternate land is already ordered to be considered. 8. In such circumstances, the right of the appellant is already protected. The reason given by the learned Single Judge that the work for the project is already in progress after acquisition of 111 kanals of land out of 123 kanals of land is not in dispute. The Writ Court has relied on the decision of Hon'ble the Supreme Court reported as (2010) 13 SCC 98 (May George v. Special Tehsildar & Ors.) to the, proposition that where a large tract of land is acquired, challenge to the land acquisition proceedings at the instance of the persons owing a small tract of land cannot be entertained. Thus, even on merits the appellant is not entitled to maintain the writ petition. Further it is well settled proposition of law that only before the award is passed the acquisition proceedings can be challenged and after the award is passed normally the Court should not entertain the writ petition challenging the acquisition proceedings. A similar issue came up for consideration before a Division Bench of this Court in the decision reported in 2016 (2) JKJ 661 [HC]: JKJ Soft JKJ/30717 (Chenab Textile Mills Kathua v. Sat Pal & Ors.), wherein the decision of Hon'ble the Supreme Court reported in AIR 2000 SC 671 (Municipal Council Ahmednagar & Anr. V. Shah Hyder Beig & Ors.) was followed and acquisition of land was upheld. The decision of Hon'ble the Supreme Court reported in AIR 2013 SC 856 (Patasi Devi v. State of Haryana & Ors.), holding that the release of portion of acquired land on which construction has been raised prior to Section 4 notification as per policy of government, is distinguishable on facts. In the decision reported in (2013) 6 SCC 620 (G. Sundarrajan v. Union of India), the issue regarding priority to public interest and private interest was considered by Hon'ble the Supreme Court and in paragraph 240 it is held thus:- "240. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society.........." Applying the said judgments to the facts of this case, we are unable to find any reason to quash the acquisition of the appellant's land by upsetting the order of the writ court. The L.P. Appeal is dismissed. No costs.