Jammu & Kashmir High Court
Bishan Dass And Others vs Union Territory Of J&K And Others on 29 December, 2020
Serial No. 107 and 109
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
WP(C) No. 589/2020 (O&M),
WP(C) No. 1089/2020 (O&M),
WP(C) No. 1190/2020 (O&M) &
WP(C) No. 1237/2020 (O&M)
(Through Video Conferencing)
DATE OF DECISION : 29.12.2020
Bishan Dass and others ...Petitioner(s)
Through: Mr. O.P. Thakur, Advocate
in WP(C) 589, 1089/2020
Mr. Ved Raj Wazir, Sr. Advocate
with Mr. Abhishek Wazir, Advocate
in WP(C) No. 1190, 1237/2020
v/s
Union Territory of J&K and others ....Respondent(s)
Through: Ms. Seema Shekhar, Sr. AAG
for Govt. of J&K
Mr. Asheesh Singh Kotwal, Advocate
for NHIDCL
Coram: HON'BLE THE CHIEF JUSTICE (ACTING)
ORDER
1. This order will dispose of five writ petitions involving challenge to acquisition of land vide same notification.
WP(C) No. 1237/2020
2. The petitioners have approached this Court praying for quashing of the notification dated 30.11.2018, issued u/s 4 of the J&K Land Acquisition Act 2 WP(C) No. 589/2020 & 3 connected petitions (for short „the Act‟) and notification dated 14.05.2019, issued u/s 6 thereof and the award dated 09.09.2019, announced by the Land Acquisition Collector.
3. It is claimed by the petitioner that he is owner to the extent of 8 kanals of land forming part of khasra No. 135 min, out of which 2 kanals and 15 marlas of land was acquired but at the spot, possession of 3 kanals and 10 marlas of land was taken. As per the notification, the purpose of acquisition is widening of Jammu-Akhnoor road. In the statement accompanying the award showing the names of the persons who are entitled to compensation, name of Rajinder Singh has been mentioned at serial No. 1. He is shown to be owner in possession of the acquired land whereas he had expired way back on 12.05.2007. Death certificate has been placed on record. In the revenue record, ownership of the land was changed in favour of his legal heirs for which mutation was also entered on 05.09.2002. To challenge the acquisition, the arguments raised is that a dead person cannot be issued any notice if in the record of the Land Acquisition Collector deceased Rajinder Singh was the owner. It was further submitted that as per Section 17-A of the Act, before taking the possession, 80% of the compensation was to be paid. In the case in hand, there was no question of payment of compensation to Rajinder Singh, whose name has been shown in the apportionment statement annexed with the award of the collector.
4. In addition, argument raised in OWP No. 1190/2020 is that one of the land occupant therein namely Sansar Chand had expired on 18.04.1997 and mutation had also been entered. However, still his name has been shown in the apportionment statement annexed with the award of the collector.
5. He further submitted that even the notification issued under section 4 of the Act is also liable to be set aside for the reason that the same was 3 WP(C) No. 589/2020 & 3 connected petitions published only in two English newspapers, which did not have circulation in the area. Notification was not published in any newspaper in regional language.
6. On account of non-compliance of the provisions of section 4, 6 and 9 of the Act, the acquisition deserves to be quashed. In support of the arguments, reliance was placed on Bansi Lal Bhat vs. State of J&K and ors., [2012 (4) JKJ 272]. He admitted that road is being constructed at the spot now. WP(C) No. 589/2020
7. The learned counsel for the petitioners submitted that the petitioners are owner in possession of the land, the houses and the shops constructed thereon. For challenging the acquisition in question, the argument raised is that the there is non-compliance of provisions of Sections 4 and 6 of the Act. As per the provisions of the Act, there should be notice to the land owners by beat of drum and also through the local Panchayats. There was no personal notice to the petitioners under section 9 of the Act to enable them to file objections. In support of the arguments reliance has been placed upon The Madhya Pradesh Housing Board vs Mohd. Shafi, reported as (1992) 2 SCC 168; Kulsum R. Nadladwala vs State of Maharashtra and ors, reported as (2012) 6 SCC 348; J&K Housing Board and anr. vs Kunwar Sanjay Krishan Kaul and ors., reported as (2011) 10 SCC 714; Kunwar Pal Singh vs State of U.P. and ors., reported as (2007) 5 SCC 85; Farid Abdul Samad and anr. vs The Municipal Corporation of the City of Ahmedabad and anr., reported as (1976) 3 SCC 719; and Rang Lal and ors. vs State of Haryana and anr., reported as 2017(2) Law Herald 1793.
8. It was further submitted that the acquisition is for utilization of land for a company. For the purpose thereof, provisions as contained in Part- VII of the Act have to be complied with. There has to be prior agreement. In the 4 WP(C) No. 589/2020 & 3 connected petitions case in hand, the provisions having not been complied with, the acquisition in question deserves to be quashed on that ground as well.
9. In response, Ms. Seema Shekher, learned Sr. AAG submitted that in the apportionment statement, the names of the persons who were found in the revenue record have been mentioned. Hence, there is no error to that effect. She further submitted that the object of publication of notification in the gazette and also in the newspapers is merely to apprise the land owners about the proposed acquisition. In the case in hand, all the land owners were well aware of the acquisition proceedings as even prior to the start of acquisition process, they had filed a representation to the authorities seeking to stall the process of acquisition. The representation dated 02.11.2018 was made by the residents of the area to the SDM to construct the flyover as was earlier directed by the Deputy Commissioner, as allegedly alignment thereof was changed under the influence of certain persons. The aforesaid representation was signed by 26 persons, some of whom are the petitioners before this Court. Once they had the knowledge of the process of acquisition, they cannot take the plea now that the notification was not published in the newspaper in a regional language or they were not given personal notice of the acquisition. Same is the arguments with reference to the plea of no public notice by way of beat of drums and through local Panchayats and Patwari‟s.
10. She further submitted that the project of widening of Jammu- Akhnoor road is of national importance for the reason that this road caters to the need of our armed forces in the border areas. She further submitted that most of the land owners have already been paid 80% of the compensation. The amount stands transferred in their accounts. The account numbers were furnished by them. Some of them have filed the present petition after receipt of the 5 WP(C) No. 589/2020 & 3 connected petitions compensation, whereas in some cases the compensation was paid later on. The place where the acquisition has been carried out, a flyover is being constructed as was even admitted by the petitioners in the representation filed prior to the acquisition of the land. Out of total 126 pillars, about 99 have already been constructed and only 27 remain. The project got stalled by the petitioners by filing the present petitions.
11. She further submitted that we have to weigh private interest against larger public interest and in this case the public interest is more important than the private interest of the individuals especially the petitioners, majority of whom are not even owners of the land. In what capacity they are in occupation of the land has not been stated by them
12. She further submitted that in case, there is error in payment of compensation to the rightful owners, the same can be corrected and the compensation can be paid to the persons, who are the rightful owners.
13. Mr. Kotwal, learned counsel for the National Highways and Infrastructure Development Corporation Limited submitted that the petitioners who are before this Court own very small portion of land out of the total acquired land. Challenge to the acquisition at their behest does not require to be interfered with. The project is nearing completion. The same cannot be stopped in between. Flyover at the place was proposed as congested populated area is there. Otherwise lot of demolitions were required, if simply four laning was to be done. On account of pendency of the present petition, the project has been stalled midway. The present situation at the border is well known. The road connects the sensitive border area in Jammu and Kashmir as it leads from Jammu to Akhnoor and thereafter Poonch-Rajouri and further leads to Kashmir via Mughal Road. At present, the road is merely two lane. The same is being 6 WP(C) No. 589/2020 & 3 connected petitions widened by making it four lane. Idea is to disturb less number of people in the area and also cater to the cross traffic. It will not only cater to the need of our defence forces but also civilian population living in that area as traffic has increased manifold due to socio economic development in the area.
14. He further submitted that notification under section 4 of the Act and even the award clearly mentions that the road is to be constructed by National Highways and Infrastructure Development Corporation Limited but still National Highways Authority of India was impleaded as party.
15. In response, the learned counsel for the petitioners submitted that representation may have been filed by some of the writ petitioners and not by all of them. The same cannot be taken to be the knowledge of acquisition proceedings. As the alignment was being changed at the behest of influential persons, representation was made. Merely, by deposit of the amount in the accounts of the land owners without their consent, will not take away their right to challenge the acquisition. In the case of Bishan Dass, the factum of receipt of compensation has been mentioned in the writ petition.
16. Heard learned counsel for the parties and perused the paper book.
17. In the case in hand, the facts as are available on record are that notification under section 4 of the Act was issued on 30.11.2018, which was followed by notification issued under section 6 of the Act on 14.05.2019. The award was announced by the Land Acquisition Collector on 09.09.2019.
18. A perusal of the facts stated in the notification under section 4 of the Act shows that the acquisition is for a public purpose, namely for upgradation of Jammu-Akhnoor National Highway-144A for which indent was placed by the National Highways Infrastructural Development Corporation Limited. Total acquired land is 102 kanals and 16 marlas. As is evident from 7 WP(C) No. 589/2020 & 3 connected petitions the award of the collector, out of the aforesaid acquisition, 84 kanals and 11 marlas is the State land. The land belonging to private parties, which has been acquired is merely 18 kanals and 5 marlas. As the land is close to the city apparently, reasonable compensation has been assessed @ Rs. 17.00 lakhs per kanal. In any case, the land owners have a right to seek further enhancement in accordance with law, in case they are able to make out a case for the same. Out of the balance 18 kanals and 5 marlas of private land which has been acquired, only 06 kanals and 1.5 marlas of land is owned by the private individuals, whereas rest of the land is in the name of temple Panjtirthi Shri Laxmi Narayan. As against the land which is shown in the ownership of the temple, in the column of possession, names of some of the petitioners have been shown. At the time of hearing, the learned counsel counsels for the petitioners have not been able to specifically state as to under what capacity they were in possession of the land of the Temple, on which they had even raised certain structures. As per revenue record construction has been shown only on 2 kanals and 8 marlas of land. Rest is shown to be vacant. Compensation for the super structure existing on the acquired land was also assessed in the award, which is to the tune of ₹5,24,67,381/-. Out of the total amount awarded, in some cases it stands transferred in the accounts of the land owners including some of the petitioners. The amount was directly transferred in their accounts, obviously as per the details furnished by the land owners.
19. The land pertaining to which the petitioners have raised challenge is merely 18 kanals 05 karlas. The petitioners, to the extent of 12 kanals 3.5 marlas of land, are not the owners thereof and they have only raised super structures thereon. The capacity in which they are in possession has not been explained.
8 WP(C) No. 589/2020
& 3 connected petitions
20. The project in question for which the land has been acquired is for widening of Jammu-Akhnoor road. The fact that this is a strategic road for use by the defence forces for security of the country cannot be denied. The place where the land in question is located is merely 25 kilometers from the international border. The Government of India has taken all the projects for improving infrastructural facilities especially the connectivity in the border areas with priority. The road after Akhnoor is connecting the other border areas i.e. Poonch and Rajouri and further leads to Kashmir via Mughal Road. The place where the acquired land in question is located, a flyover is being constructed. At present, the road is merely two lane. The same is being widened by making it four lane. Idea is to disturb less number of people in the area and also take care of the cross traffic.
21. The planning was to have a fly over at the spot as the area is highly congested. The notification under section 4 of the Act was issued on 30.11.2018. However, as survey for acquisition of any land starts well before that, as a result thereof, the land owners in the area also came to know about the proposed acquisition. This is even evident from the joint representation dated 02.11.2018 filed by number of persons including the petitioners in the bunch of petitions objecting to the change of alignment of the flyover to save their land and super structure. Hence, they cannot deny knowledge about the acquisition of the land.
22. Further in context to the contention raised by the petitioners that the notification was published in newspaper with inconsiderable circulation, non-publication in newspaper in regional langauge and no public notice of the acquisition proceedings by way of beat of drums etc. was made, reference can be made to judgment of Hon‟ble the Supreme Court in Special Deputy 9 WP(C) No. 589/2020 & 3 connected petitions Collector, Land Acquisition C.M.D.A vs. J. Sivaprakasam and others; (2011)1 SCC 330, wherein Hon‟ble the Supreme Court while deliberating upon the intent of the legislature for enacting Section 4 (1) in the Act, has opined as follows:
"19. We have held that the object and purpose of the amended section 4(1) of the Act is to provide for publication of the preliminary notification in two daily newspapers having reasonably wide circulation in the locality so that people (persons interested) in that locality may become aware of the proposals for acquisition. We have also held that publications in two newspapers having regular and steady circulation, but having a market share of only 2% to 3% of the total newspapers cannot invalidate the acquisition proceedings automatically, on the ground that such publication violates the requirement of section 4(1) relating to newspaper publication. As the said two findings are slightly contradictory, it is necessary to harmonise the consequences.
20. This leads us next to the consequences of publication of the notification in two newspapers having reasonably wide circulation and consequences of bona fide publication of the notification in two newspapers which do not have a wide circulation in the locality.
20.1) If there is failure to publish in two daily newspapers or if the publication is in two newspapers that have no circulation at all in the locality, without anything more, the notification under section 4(1) of the Act and the consequential acquisition proceedings will be vitiated, on the ground of non-compliance with an essential condition of section 4 (1) of the Act.
20.2) If the two newspapers carrying the publication of the notification have reasonably wide circulation in the locality, (apart from the publication of the notification in the Gazette 10 WP(C) No. 589/2020 & 3 connected petitions and causing public notice of the substance of the notification to be given at convenient places in the locality), then the requirements of section 4(1) are complied with and all persons concerned in the locality shall be deemed to have notice of the notification. (For this purpose, the publication need not be in newspapers having the widest or largest circulation, but it is sufficient if the publication is in newspapers having reasonably wide circulation). In that event, neither the notification under section 4(1), nor the consequential acquisition proceedings would be open to challenge, on the ground of violation of Section 4 of the Act.
20.3) If the newspapers in which the notification is published were circulating in the locality, but did not have a reasonably wide circulation in the locality, then neither the notification under section 4(1) nor the consequential acquisition proceedings, will become vitiated automatically. If the person aggrieved, apart from demonstrating that the two newspapers did not have reasonably wide circulation in the locality, also asserts that as a consequence, he did not have notice of the proposed acquisition that was provided for in Section 4(1) of the Act, in the absence of evidence to the contrary, the acquisition to the extent of the land of such person will be vitiated. But if such assertion is rebutted by the acquiring authority by placing evidence to show that the person concerned had in fact notice (as for example where he participated in the enquiry under section 5A of the Act), the acquisition will not be vitiated on the ground of violation of section 4A of the Act.
20.4) If the person challenging the acquisition is able to establish that the notifications were deliberately and with mala fides, published in newspapers having negligible circulation, to avoid notice to the persons concerned, then section 4(1) will be violated.11 WP(C) No. 589/2020
& 3 connected petitions
21. The acquiring authority need not prove actual notice of the proposal to acquire under section 4(1) of the Act, to the person challenging the acquisition. As the purpose of publication of public notice provided in section 4(1) of the Act is to give notice of the proposal of acquisition to the persons concerned, such notice can also be by way of implied notice or constructive notice. For this purpose, we may refer to the difference between actual, implied and constructive notices.
21.1) When notice is directly served upon a party in a formal manner or when it is received personally by him, there is actual notice.
21.2) If from the facts it can be inferred that a party knew about the subject matter of the notice, knowledge is imputed by implied notice. For example, if the purpose of the notice is to require a party to appear before an authority on a particular date, even though such a notice is not personally served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice.
21.3) Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. For example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property effected by registered instruments till the date of his acquisition. Or, where the statute provides for publication of the notification relating to a proposed acquisition of lands in the Gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice; and on fulfillment of those requirements, all persons interested in 12 WP(C) No. 589/2020 & 3 connected petitions the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition."
From the perusal of the aforesaid enunciation of law by Hon‟ble the Supreme Court it transpires that the intent of issuance of notification under section 4 is to make the people aware about the intention of the Government to acquire the land. Such a notice can either be actual, implied or constructive. From the facts and circumstances, inference of implied or constructive notice can be drawn, hence, the purpose of section 4 is fulfilled. In the case in hand, the petitioners own only 6 kanals and 1.5 marlas of land out of the total acquired land measuring 102 kanals and 16 marlas. Any acquisition process cannot be stalled on account of technical issues raised by them, where the project is of national importance and the affected persons already had knowledge of the acquisition.
23. Reference can also be made to judgments of Supreme Court in Swaran Lata v. State of Haryana, (2010) 4 SCC 532; and May George v. Special Tehsildar and ors., (2010) 13 SCC 98, wherein also it has been elaborated that the purpose of publication u/s 4 of the Act is to give notice to the land owners. That may not always be actual, it can be implied as well as constructive. The Court further observed that when huge chunk of land is acquired, acquisition proceedings on the behest of owners of small pieces of land forming part thereof should not be disturbed, especially when the award has already been passed.
24. Relevant extracts from the judgments of Hon‟ble the Supreme Court referred (supra), for facility of reference are reproduced hereunder:
i) Swaran Lata v. State of Haryana (supra);
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"12. .............the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of Act 1894 had been published in the newspapers having no wide circulation. Even if, the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of acquisition proceedings for the reason that very huge chunk of land belonging to large number of tenure holders had been notified for acquisition. Therefore, it should have been a talk of the town. Thus, it cannot be presumed that petitioners could not have knowledge of the acquisition proceedings."
ii) May George v. Special Tehsildar and ors. (supra) "10. .....................More so, appellant's land was of negligible area in comparison of the total land acquired and therefore, at the behest of only one person, the acquisition proceedings cannot be disturbed."
25. In similar line is the Division Bench judgment of this court in Gajinder Singh and others v. State of J&K and others, reported as 2017(1) J.K.J. 520 wherein aforesaid judgments of Hon‟ble the Supreme Court have been followed.
26. As far as compliance of the Part-VII of the Act is concerned, no doubt the acquisition is on an indent by National Highways and Infrastructural Development Corporation, however, the fact remains that NHIDCL is a government owned company, created for development of infrastructural facilities. This is in addition to the National Highways Authority of India. The issue as to whether the provisions of Part-VII are required to be complied with has been gone into by Hon‟ble the Supreme Court of India in Nand Kishore Gupta and others vs. State of U.P. and others, reported as AIR 2010 SC 3654. In the aforesaid case the Apex Court was seized of a matter where one of the 14 WP(C) No. 589/2020 & 3 connected petitions challenge to the acquisition proceedings for Yamuna Expressway Project was on the ground that the acquisition would come under Part-VII of the Act of 1894. While dealing with the said issue, Hon‟ble the Supreme Court opined that when the ownership of the land acquired for the project in question does not vest with the company and while conceiving the project, the concept of public purpose is kept at the back of mind, then in that case, the acquisition cannot be held to be for a company and compliance of Part-VII of the Act would not necessitate. Relevant paras are reproduced as hereunder:
"29................... It is also to be seen that this was not a case where the exercise of power of eminent domain by the State was for any of the purposes set down in Section 40 of the Act. Further, it is not as if the power of acquisition was exercised by the State Government for the work or Project of the Company. Lastly, it is not a case where the power of exercise was exercised by the State Government so that the acquired land was to belong or vest permanently in the Company for its own purpose. It was pointed out that the lease is going to be for 90 years after which the whole land is going to revert back to the State Government, so also the whole land acquired and used actually for the purpose of the highway would also go back to the State after the period of 36 years, during which the Company would have the right to levy and collect the toll. It is not as if a public purpose is relevant in Part VII, where under Section 39, the previous consent of appropriate Government is required for execution of an agreement between the Government and the Company. Section 40 of the Act then puts a specific rider that the State Government shall not give the consent unless it is satisfied of any of the contingencies described in sub-Sections (a), (aa) and (b) thereof, which are as under:-
40. Previous enquiry:- (1) Such consent shall not be given unless the appropriate Government 15 WP(C) No. 589/2020 & 3 connected petitions be satisfied, either on the report of the Collector under Section 5A, Sub-section (2), or by an enquiry held as hereinafter provided,-
(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or (aa) that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or
(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public.
This would suggest that even when the acquisition is meant for the Company, the concept of public purpose has to be at the back of mind of the acquiring body like Government. Here, of course, there is no question of any agreement with the Company as the three eventualities described under Section 40 of the Act are not available for the simple reason that the basic idea for the acquisition under Part VII of the Act is the total transfer of the ownership of the acquiring land in favour of the Company. That is obviously not present here. We do not see any factual background for holding that any agreement was contemplated in between the State Government and the Company or for that matter, YEIDA and the Company, as envisaged in Sections 39, 40 and 41 of the Act. It was tried to be canvassed before us that there would be a difference in concepts of a public purpose and the work useful to the public. We are not much impressed by 16 WP(C) No. 589/2020 & 3 connected petitions this argument in view of the fact that there is absolutely no evidence to suggest that this is an acquisition for the Company, basically on account of the fact that the acquired land is not to vest with the Company. This was clearly a Project conceived and justified by the State Government, while the concessionaire was to be chosen only to implement the Project. The Project was going to be implemented on the basis of principles of BOT. Therefore, after the operating period is over, the assets of the Project were to be transferred to the State Government. There was going to be no vesting of land as in case that if the acquisition was being effected under Part VII of the Act. We, therefore, do not accept the argument that this was either a colourable exercise of power or was meant for the Company. We are not impressed by the argument that this was an acquisition for the Company.
x x x x
31. We must, at this stage, take into account the argument that the whole compensation is coming wholly from the Company and not from the Government or from YEIDA.
The appellants invited our attention to Clause 4.1(d) of the Concession Agreement. On that basis, it was argued that the Company has paid the compensation cost and, therefore, the acquisition is clearly covered under Part VII of the Act, and there may be no public purpose if the acquisition is made for the Company and it is the Company who has to shell out the whole compensation. Now, this argument is clearly incorrect. Even if we accept for the sake of argument that all this compensation is coming from the Company, we must firstly bear it in mind that the Company gets no proprietary 17 WP(C) No. 589/2020 & 3 connected petitions or ownership rights over the Project assets. Now, if it is presumed that the compensation is coming from the Company, then it will have to be held that the whole assets would go to the Company. At least that is envisaged in Part VII of the Act. Here, that is not the case. The assets are to revert back to the acquiring body or, as the case may be, the Government............."
27. Reference can also be made to the observations of Supreme Court in Pratibha Nema and others vs. State of M.P. and others, reported as AIR 2003 SC 3140 wherein the Apex Court has held that the source of funds utilized for acquisition of land would be a considerable factor while evaluating, whether compliance of Part-VII is required or not. Relevant paras are reproduced hereunder:
"21. Company' is defined to mean by Section 3(e) as (i) a Company within the meaning of Section 3 of the Companies Act other than Government Company, (ii) a Society registered under the Societies Registration Act other than a Co-operative Society referred to in clause (cc) and (iii) a Co-operative Society governed by the law relating to the Cooperative Societies in force in any State other than a Co-operative Society referred to in clause (cc). An industrial concern employing not less than 100 workmen and conforming to the other requirements specified in Section 38-A is also deemed to be a Company for the purposes of Part VII. In order to acquire land for a Company as defined above, the previous consent of the appropriate Government is the first requirement and secondly the execution of agreement by the Company conforming to the requirements of Section 41 is another essential formality. Section 40 enjoins that consent should not be given by the appropriate Government unless it is satisfied that (1) the purpose of the acquisition is to obtain land for erection of dwelling houses for 18 WP(C) No. 589/2020 & 3 connected petitions workmen or for the provision of amenities connected therewith; (2) that the acquisition is needed for construction of some building or work for a Company which is engaged or about to engage itself in any industry or work which is for a public purpose; and (3) that the proposed acquisition is for the construction of some work that is likely to be useful to the public. The agreement contemplated by Section 41 is meant to ensure the compliance with these essentialities. It is also meant to ensure that the entire cost of acquisition is borne by and paid to the Government by the Company concerned. Thus, it is seen that even in a case of acquisition for a Company, public purpose is not eschewed. It follows, therefore, that the existence or non-existence of a public purpose is not a primary distinguishing factor between the acquisition under Part II and acquisition under Part VII. The real point of distinction seems to be the source of funds to cover the cost of acquisition. In other words, the second proviso to Section 6 (1) is the main dividing ground for the two types of acquisition.
This point has been stressed by this Court in Srinivasa Co- operative House Building Society Limited v. Madam G. Sastry, 1994(3) R.R.R. 399 : ((1994) 4 SCC page 675) at paragraph 12 ".....In the case of an acquisition for a company simpliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition is for a public purpose and that the cost of acquisition should be borne, wholly or in part, out of public funds...."
The legal position has been neatly and succinctly stated by Wanchoo, J. speaking for the Constitution Bench in R.L. Arora v. State of Uttar Pradesh, AIR 1962 Supreme Court page 764. This is what has been said : Para 5 19 WP(C) No. 589/2020 & 3 connected petitions "Therefore, though the words 'public purpose' in Sections 4 and 6 have the same meaning, they have to be read in the restricted sense in accordance with Section 40 when the acquisition is for a company under Section 6. In one case, the notification under Section 6 will say that the acquisition is for a public purpose, in the other case the notification will say that it is for a company. The proviso to Section 6(1) shows that where the acquisition is for a public purpose, the compensation has to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. Where, however, the acquisition is for a company, the compensation would be paid wholly by the company. Though, therefore, this distinction is there where the acquisition is either for a public purpose or for a company, there is not a complete dichotomy between acquisitions for the two purposes and it cannot be maintained that where the acquisition is primarily for a company it must always be preceded by action under Part 7 and compensation must always be paid wholly by the company. A third class of cases is possible where the acquisition may be primarily for a company but is may also be at the same time for a public purpose and the whole or part of compensation may be paid out of public revenues or some fund controlled or managed by a local authority. In such a case though the acquisition may look as if it is primarily for a company it will be covered by that part of Section 6 which lays down that acquisition may be made for a public purpose if the whole part of the compensation is to be paid out of the public revenues or some fund controlled or managed by a local authority. Such was the case in Pandit Jhandu Lal v. State of Punjab, AIR 1961 Supreme Court 343....................... It is only where the acquisition is for a company and its cost is to be met entirely by the company itself that the provisions of Part 7 apply."
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22. Thus the distinction between public purpose acquisition and Part 7 acquisition has got blurred under the impact of judicial interpretation of relevant provisions. The main and perhaps the decisive distinction lies in the fact whether cost of acquisition comes out of public funds wholly or partly. Here again, even a token or nominal contribution by the Government was held to be sufficient compliance with the second proviso to Section 6 as held in a catena of decisions. The net result is that by contributing even a trifling sum, the character and pattern of acquisition could be changed by the Government. In ultimate analysis, what is considered to be an acquisition for facilitating the setting up of an industry in private sector could get imbued with the character of public purpose acquisition if only the Government comes forward to sanction the payment of a nominal sum towards compensation. In the present State of law, that seems to be the real position."
28. At the place of acquisition of land, a flyover is being constructed for which 126 pillars have to be erected. As claimed by the learned counsel for the respondents, 99 have been completed whereas for 27 pillars, the work has been stalled on account of the pendency of the present petition. Hence, at this stage it will not be in larger public interest to quash the acquisition. If the aforesaid work is not completed, the entire four lane of the road on both sides of the flyover and the amount spent on construction of the flyover will go waste. That would be loss of crores of rupees of public exchequer. It may further be added that because of delay in completion of the project, even the other residents of the area must be facing lot of difficulties as with the erection of pillars for construction of flyover, there has to be lot of digging and construction on the existing road, which was not very wide. The same may have rendered the existing road unmotorable. More importantly, any delay in 21 WP(C) No. 589/2020 & 3 connected petitions completion of the project will result in compromising with the security of the country.
29. Hon‟ble the Supreme Court has time and again opined that projects of public importance should not be halted as the same would be against the larger public interest and the constitutional courts should weigh public interest vis-à-vis private interest while exercising its discretion. The view could very well be gathered from the judgments of Hon‟ble the Supreme Court in Ramniklal N. Bhutta and another vs. State of Maharashtra and others, reported as AIR 1997 SC 1236; Pratibha Nema and ors. Vs. State of M.P. and ors. reported as AIR 2003 SC 3140; and Jaipur Metro Rail Corporation Limited vs. Alok Kotalwala and others, reported as AIR 2013 SC 754.
Relevant extracts from the judgments of Hon‟ble the Supreme Court referred (supra) are reproduced hereunder:
i) Ramniklal N. Bhutta's case:
"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without 22 WP(C) No. 589/2020 & 3 connected petitions any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in Courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a Civil Suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even by open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceeding is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the Courts while dealing with challenges to acquisition proceedings."
ii) Pratibha Nema's case:
23 WP(C) No. 589/2020
& 3 connected petitions "When no prejudice has been demonstrated nor could be reasonably inferred, it would be unjust and inappropriate to strike down the Notification under Section 4(1) on the basis of a nebulous plea, in exercise of writ jurisdiction under Article 226. Even assuming that there is some ambiguity in particularizing the public purpose and the possibility of doubt cannot be ruled out, the constitutional courts in exercise of jurisdiction under Article 226 or 136 should not, as a matter of course, deal a lethal blow to the entire proceedings based on the theoretical or hypothetical grievance of the petitioner. It would be sound exercise of discretion to intervene when a real and substantial grievance is made out, the non-redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose, especially, in a matter like this where it is possible to take two views, is not something which affects the jurisdiction and it would, therefore, be proper to bear in mind the considerations of prejudice and injustice."
iii) Jaipur Metro Rail Corporation Limited's case:
"31. With respect to ecological balance, there has to be sustainable development and such projects of immense public importance cannot he halted. It is not the case that requisite permissions from the Central Government and the State Government have not been obtained, thus, objections were flimsy. In other petitions also pertaining to the same Project, this Court has held that such project of immense public importance should not be put to halt. Thus, flimsy and untenable objections were raised, which have been rightly rejected after due application of mind.
x x x x
48. On merits, we find the order of interim stay passed by the single Bench to be untenable, thus, we have no hesitation in setting aside the same. Suffice it to observe that in such cases of public importance of Metro Rail Project, 24 WP(C) No. 589/2020 & 3 connected petitions there should not be any interim stay, rather an effort should be made to decide the matter finally at an early date. Staying the land acquisition proceedings is not appropriate and would be against the larger public interest involved in such projects. Thus, relying upon the decision in the case of Ramniklal N. Bhutta, (AIR 1997 SC 1236) (supra), we hold that in the matter of immense public importance like the present one, the power to grant interim stay under Article 226 of the Constitution should not be exercised in the normal course." (emphasis supplied)
30. With regard to the argument that one of the land owner and another being an occupant, in favour of whom compensation was assessed, had died long back and no question for the compensation to be paid to them can arise, it would be apt to mention that the project being of immense importance, strategic and otherwise, cannot be stalled for issues raised regarding such small portion of land. Undoubtedly, the legal heirs of the deceased land owners have a right to seek compensation and the same may be paid to them after due verification. Similar is the position with regard to the argument that possession of land more than acquisition has been, taken at the spot. Even for that also the matter will be examined by the competent authority and after due verification, if the stand of the petitioners is found to be correct, they be compensated for the same, following due process.
31. If the arguments raised by learned counsels for the petitioners are considered, the same do not carry any weight as the petitioners had knowledge about the acquisition of the land much before even the notification under section 4 of the Act was issued. Technical pleas of non-publication in regional language newspaper or in village will not have any relevance. The land otherwise is located in semi-urban area. Further major part of the acquired land 25 WP(C) No. 589/2020 & 3 connected petitions is owned by the State and the petitioners are not shown to be owners of the acquired land. Otherwise also challenge has been made to acquisition of a very small portion of land vis-à-vis total acquired land. That too after the award has been announced. The project for which the land is acquired is of immense public importance and major part of that is already complete and the same cannot now be left in between. Four laning of the road is a Government of India funded project, hence, even the argument of Part VII compliance also does not carry any weight.
32. For the reasons mentioned above, I do not find any merits in the writ petitions as far as challenge to the acquisition of land is concerned. The same are accordingly dismissed. However, for other reliefs being payment of compensation to the rightful owners and possession of land more than acquired, the competent authority shall take appropriate action.
(RAJESH BINDAL) CHIEF JUSTICE (ACTING) JAMMU 29.12.2020 SUNIL-I Whether the order is speaking : Yes/No Whether the order is reportable : Yes RAJ KUMAR 2020.12.29 13:34 I attest to the accuracy and integrity of this document