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2017 DIGILAW 498 (JK)

Gh. Mohi-ud-din Bhat v. State of J&K

2017-07-31

TASHI RABSTAN

body2017
JUDGMENT : Tashi Rabstan, J. 1. Petitioners in OWP No. 759/2015 aggrieved of notifying their land, required for purpose public, namely, expansion of Fruit and Vegetable Market at Village Prichoo Tehsil & District Pulwama, have thrown challenge to and seek quashment of Notification No. 57 of 2013, dated 31st December 2013, or in alternative payment of compensation and providing of alternative land to petitioners to rehabilitate them by giving employment to family members of petitioners. Notification No. 57 of 2013, dated 31st December 2013 has been taken back and land mentioned therein, including that of petitioners, de-notified vide Notification No. DCP/LA/2015/669-74, dated 20th August 2015. After de-notification, Notification No. 37 of 2015, dated 28th September 2015 has been issued, notifying the land mentioned therein for the aforesaid public purpose. Petitioners in OWP No. 2106/2015 seek quashment of both de-notification No. DCP/LA/2015/669-74, dated 20th August 2015 as well as Notification No. 37 of 2015, dated 28th September 2015, or in alternative payment of compensation and providing of alternative land to petitioners to rehabilitate them by giving employment to family members of petitioners. 2. Reply has been filed by respondents. 3. I have heard learned counsel for parties, gone through the record produced by learned counsel for respondents and considered the matter. 4. Learned counsel for parties have reiterated what they have averred in their respective pleadings. Learned counsel for petitioners has in support of the arguments advanced by him placed reliance on decisions rendered in Khub Chand & Ors. v. State of Rajasthan & Ors., AIR 1967 SC 1074 ; Narendrajit Singh & Anr. v. The State of U.P. & Anr., 1970 (1) SCC 125 ; Narindrajit Singh and Ranjit Singh & Ors. v. The State of U.P. & Ors., AIR 1973 SC 552 ; State of Mysore v. Abdul Razak Sahib AIR 1973 SC 2361 ; Balkrishan Dutta v. State, AIR 1975 J&K 27 ; Sujit Pal v. Prabir Kumar Sun & Ors., AIR 1986 Calcutta 220; Delhi Development Authority v. Skipper Construction Co. (P) Ltd. & Anr., (1996) 4 SCC 622 ; BEML Employees Building Coop. Society Ltd. v. State of Karnataka, (2005) 9 SCC 248 ; J&K Housing Board & Anr. v. Kanwar Sanjay Krishan Kaul & Ors., (2011) 10 SCC 1714 ; 2012 (4) JKJ 272 [HC] Bansi Lal Bhat v. State of J&K & Ors., 2012 (III) SLJ 670 [HC]. (P) Ltd. & Anr., (1996) 4 SCC 622 ; BEML Employees Building Coop. Society Ltd. v. State of Karnataka, (2005) 9 SCC 248 ; J&K Housing Board & Anr. v. Kanwar Sanjay Krishan Kaul & Ors., (2011) 10 SCC 1714 ; 2012 (4) JKJ 272 [HC] Bansi Lal Bhat v. State of J&K & Ors., 2012 (III) SLJ 670 [HC]. Learned counsel for respondents has placed reliance on Mohd. Yasin Mir & Ors. v. State of J&K & Ors., SLJ 2003 (I) 181; 2007 (2) JKJ 234 [HC] Haji Mohammad Akram v. State & Ors. 2007 (I) SLJ 21. 5. As additional land for expansion of Fruit and Vegetable Market Prichoo, Pulwama was required, Director, Horticulture, Planning and Marketing Department-respondent No. 4 herein, submitted an indent vide No. DHPM/701/2012/6639-41, dated 9th November 2012, to Deputy Commissioner, Pulwama-respondent No. 2 herein. Preliminary Notification No. 57 of 2013, dated 31st December 2013 was issued qua land measuring 41 kanals and 04 Marias. There against writ petition (OWP No. 759/2015) was filed. In the interregnum, respondent No. 4 vide No. DHPM/201/APMC/2561-67, dated 5th August 2015, requested de-notification of the land, notified vide Notification No. 57 of 2013, dated 31st December 2013, as the land under notification was stated to be irregular in shape and not fulfilling other technical requirements. Accordingly, de-notification bearing No. DCP/LA/2015/669-74, dated 20th August 2015, was issued. Revised drawings were prepared after finalisation of alignment as per requirement. This was followed by issuance and publication of Notification No. 37 of 2015, dated 28th September 2015 with respect to land measuring 50 Kanals and 12 Marias (out of which 14 Kanals & 18 Marias fall in Village Prichoo and 35 Kanals & 14 Marias in Gangoo), seeking objections from interested persons. Objections were filed and considered, and it was thought appropriate to go for private negotiation with landholders and accordingly a meeting of District Private Negotiation Committee Meeting but nothing fruitful came out therefrom. As a consequence, Notification under Sections 6, 7 & 17 of the J&K State Land Acquisition Act, Svt. 1990, was issued vide No. 20-Rev (LAK) of 2016, dated 1st April 2016. 6. From the record it also comes to fore that as many as 12 landowners have unanimously stated that they have no objection to the acquisition of land in question and requested for expeditious conclusion of acquisition process, so that their due compensation is not delayed. 1990, was issued vide No. 20-Rev (LAK) of 2016, dated 1st April 2016. 6. From the record it also comes to fore that as many as 12 landowners have unanimously stated that they have no objection to the acquisition of land in question and requested for expeditious conclusion of acquisition process, so that their due compensation is not delayed. Funds for acquisition of land appear to have also been placed at the disposal of Revenue Department. Record also reveals that aim and objective of acquiring the land in question is to create more and better marketing facilities to the growers and traders of agriculture/horticulture produce, more particularly keeping in view the production of the District Pulwama and number of growers and traders dealing with agriculture/horticulture trade, the existing Fruit Market was not sufficient to cater requirements of growers, traders and other stakeholders, besides existing market also creates traffic jam during fruit season, causing inconvenience to common people in their day to day business, as such, it was found necessary to acquire adjacent land to the Fruit Market Pulwama, so as to expand it. 7. I may usefully call public interest will prevail over private interest on the principle of legal maxim "Salus Populi est Suprema lex" mean Regard for "Public Welfare is the highest law". This principle is based on the implied agreement of every member of society that his own individual welfare shall in cases of necessity yield to that of community. His property, liberty and life shall under certain circumstances be placed in jeopardy or even sacrificed for the public good. Personal benefit must give way to public interest and the doctrine of legitimate expectation cannot be invoked which would block public interest for private benefit. In Hira Tikkoo v. Union Territory, Chandigarh & Ors. (2004) 6 SCC 765, the Supreme Court explaining the scope of principle of legitimate expectation has held that the doctrine cannot be pressed into service where the public interest is likely to suffer as against the personal interest of a party. The Supreme Court in Friends Colony Development Committee v. State of Orissa, (2004) 8 SCC 370, while referring to construction activity violative of the regulations and control orders, held that the regulations made under Orissa Development Authorities Act, 1982, may meddle with private rights, but still they cannot be termed arbitrary or unreasonable. The private interest would stand subordinate to public good. The private interest would stand subordinate to public good. In the present case as well, even if some individual interests are likely to suffer, such individual or private interests must give in to the larger public interest. It is duty of all citizens to comply with the law. I have no hesitation in holding that the purpose i.e. for expansion of Fruit & Vegetable Market, Pulwama, is a public purpose. 8. Compulsory acquisition of land for a public purpose on payment of compensation is the mode recognised under law. If land is so acquired no grievance can be made of infringement of fundamental rights. In Amabalal Purshottam etc. v. Ahmedabad Municipal Corporation & Ors., AIR 1968 SC 1223 , the Supreme Court observed: "The Land Acquisition Act authorises the appropriate Government to notify land for acquisition which is or is likely to be needed for a public purpose and road widening in a town is undoubtedly a public purpose. After considering the report of the Collector under Section 5-A of the Land Acquisition Act, the Government of Bombay published a notification under Section 6(1) of the Land Acquisition Act that the lands were needed for a public purpose. That declaration was by virtue of Section 6 (3) of the Act conclusive evidence that the lands were needed for a public purpose. By the compulsory acquisition for a public purpose, subject to payment of compensation, no fundamental rights guaranteed under Article 19 and 31 (2) of the Constitution were infringed. The lands were properly notified for acquisition. The compensation payable in respect of the lands has been determined. If there is any grievance which the appellants are entitled to raise in respect of the compensation determined as payable, their remedy lies in approaching the courts competent to determine the question." 9. It is not a case where petitioners are deprived of their property in acquisition without following due procedure of law. The land is being acquired after following due procedure and mode of acquisition. So long acquisition is for public purpose, individual rights are to yield to public interest. In every acquisition by its very compulsory nature for public purpose, owner may be deprived of the land and livelihood. The State exercises its power to eminent domain for public purpose and acquires the land. So long acquisition is for public purpose, individual rights are to yield to public interest. In every acquisition by its very compulsory nature for public purpose, owner may be deprived of the land and livelihood. The State exercises its power to eminent domain for public purpose and acquires the land. So long as the exercise of power is for public purpose, individual's right of an owner must yield place to the larger public interest. Petitioners, in the present case, have even participated in meetings of District Private Negotiation Committee. It is secondary whether petitioners agreed to rates offered by respondents or not, but fact of the matter is that petitioners are well aware of initiation of acquisition proceedings and partook in the meetings for private negotiation for payment of compensation for their land acquired by respondents. Thus, it cannot be heard saying from petitioners that they have no knowledge about the acquisition proceedings. It may not be out of place to mention here that wider public interest is involved and the primary concern for this Court, in view of above discussion, is that compensation with respect to the land acquired by respondents, is to be paid to petitioners at an earliest. 10. For the reasons discussed above, writ petitions are disposed of with a direction to respondents to make payment of compensation to petitioners for acquiring their land for expansion of Fruit and Vegetable Market Pulwama, according to the prevailing market rate and/or according to the rates that may be agreed to by them during negotiation with respondents. The respondents shall do well to undertake and conclude the process of making payment of compensation with respect to the land acquired, in favour of petitioners as also giving them any other benefit as is available under applicable rules, preferably, within eight weeks from the date of receipt of copy of this order. Disposed of. Record be returned to counsel for respondents.