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Judgment
Mr. N. Paul Vasanthakumar, C.J. - This appeal is filed against the order of the learned Writ Court made in OWP No. 228/2009, dated
13.05.2013 quashing the acquisition of land in respect of the respondents with liberty to the official respondents to reconsider the whole issue in
the light of the provisions of State Land Acquisition Act. Svt. 1990.
Mr. Sunil Sethi learned senior counsel appearing for the appellant submits that 5th respondent in the appeal received the compensation and after
receiving the same, he has filed the writ petition along with other respondents. Similarly, no land was acquired belonging to the private respondent
Nos. 6, 14 and 15, still they have joined along with other writ petitioners and questioned the Government Notification and award. It is stated that
the acquisition of land is for the benefit of the appellant for expansion of the Textile Unit providing employment to the public at large.
Brief facts necessary for the disposal of this appeal are as follows:
Notification No. 04 of 2006 was issued on 29.12.2006 under section 4(1) of the State Land Acquisition Act 1990 (for short ""Act of 1990"") for
the benefit of appellant-company which was shown as 3rd respondent in the writ petition. After the award was passed determining the
compensation, the writ petition was filed by the respondents though similarly placed persons challenging the acquisition on identical grounds in
OWP No. 698 of 2006 was dismissed by the writ court on 26.02.2010.
The writ court considered the rival submissions and held that section 39 to 42 of the Act was not complied with before acquiring the land on behalf
of the appellant as no agreement was entered with the Government before the process of acquisition. The learned Single Judge further held that
even after publication of the award, the acquisition can be challenged and relied on the judgment of Hon'ble the Supreme Court reported in AIR
2013 SC 856 (Patasi Devi v. State of Haryana and Ors.) The said order is challenged by the appellant by contending that once award is
passed, the acquisition cannot be challenged in terms of judgment of Hon'ble the Supreme Court reported in 2000 (2) SCC 48 : AIR 2000 SC
671 (Municipal Council Ahmednagar v. Shah Hyder Beig) and reliance on the judgment of Hon'ble the Supreme Court reported in AIR
2013 SC 856 (Patasi Devi v. State of Haryana and Ors.) by the writ court is distinguishable on facts as it was in relation to release of the land
already acquired and not challenging the acquisition proceedings.
Mr. Sunil Sethi, learned senior counsel also submitted that there is three years delay in filing the writ petition and out of 160 land owners only 34
have questioned the acquisition. The learned senior counsel further argued that sections 39 to 42 of the Act nowhere contemplates prior agreement
to be signed for acquisition with the Government and in fact, the appellant company on 07.07.2005 addressed a communication to the Principal
Secretary to Government, Industry and Commerce Department seeking 165 kanals of land adjoining to the existing land of the company as the
company was planning to increase the installed capacity from present capacity of 95300 spindles to about 2,00,000/- spindles within next seven
years in a phased manner at a total capital outlay of 325 crores. It was also mentioned that the company undertakes to pay the total cost of
acquisition of land and its development charges and also land rent as may be decided under the provisions of para 3.1 (b) of Industrial Policy
issued by Government in Govt. Order No. 21-Ind of 2004 and other terms and conditions to be decided by the Government at the time of handing
over the possession. The Principal Secretary to Government, Industries and Commerce Department in turn addressed a communication to the
Director, Industries and Commerce J&K Government on 11.07.2005 authorizing him to interact with the Management of the appellant company
and initiate the proceedings for acquisition of the land required by the company. The Deputy Commissioner Kathua was addressed a
communication by Joint Director of Industries and Commerce on 05.08.2005 requesting him to prepare the revenue documents for acquisition of
additional land measuring about 165 kanals for expansion of M/s Chenab Textile Mills Kathua and for placing the final indent. The tentative cost of
the land was also directed to be communicated so that the management of the appellant company is intimated well in advance to arrange the
amount of compensation. The Deputy Commissioner Kathua sent a communication to Director Industries and Commerce, J&K Government on
22.05.2006 informing that the revenue documents have got prepared as per the letter of the Director dated 05.08.2005 for 123 kanals 13 marlas
instead of 165 kanals at village Chakramsingh, Kharot and Govindsar.
The Collector Land Acquisition (Additional Deputy Commissioner) Kathua on 14.07.2006 addressed a communication to Tehsildar Kathua
and the Deputy Commissioner Kathua on 29.08.2006 informed the Director Industries and Commerce Department that he has made all
preparations for placing final indent of land measuring 121 kanals and 9 marlas for expansion of Industrial unit at village Chakramsingh, Kharote
and Govindsar and land measuring 2 kanals 4 marlas for construction of path way at village Chakramsingh i.e total land measuring 123 kanals 13
marlas instead of 165 kanals, by specifically certifying that funds are available for acquisition of the said land. It was also certified that no land
acquisition proceedings are going on and the proposed land has neither been acquired earlier nor payment of compensation has been made through
private negotiations. According to the learned senior counsel, the said communications clearly reveal compliance of sections 39 to 42 of the Act
and thereafter only the land was acquired by issuing notification and entire compensation amount as per award was deposited and after a delay of
3 years from the publication of the award, acquisition has been challenged and therefore, there is inordinate delay in filing the writ petition and once
award is passed in a land acquisition proceedings, the notification cannot be challenged and these contentions were not considered by the writ
court.
The learned counsel appearing for the private respondents argued that no agreement was entered into between the official respondents and the
appellant for acquiring the land on behalf of the appellant and as such there is statutory violation. He also argued that if acquisition is initiated
without following the statutory provisions, even if the award is passed, same can be challenged, as such, the learned Single Judge was justified in
allowing the writ petition.
We have considered the rival submissions.
The point arises for consideration is as to (1) whether the private respondents are justified in filing the writ petition challenging the acquisition
proceedings after the award was passed and (2) whether the acquisition made is in violation of Section 39 to 42 of the Land Acquisition Act.
Admittedly the land acquisition proceedings were initiated under the Jammu and Kashmir Land Acquisition Act, 1990 by issuing notification No.
04 of 2006, dated 29.12.2006 for extension of the Industrial area which is for a public purpose. The Government by Notification No. 74-RD of
2007, dated 07.06.2007 accorded sanction under Section 6 and 7 of the Land Acquisition Act and the Collector was allowed to take possession
of the land. After the said declaration, notice under Section 9 and 9-A of the Act was issued by the Collector on 12.07.2007 inviting objections
from the land owners/interested persons. The objections were duly considered and final award was passed on 17.01.2009 in compliance with
Section 17-A of the Act. The passing of the award and participation of the private respondents in the proceedings are not in dispute. The writ
petition was filed by the private respondents only in the year 2009 that was after passing of the award on 17.01.2009.
The issue as to whether the Land Acquisition proceedings can be challenged after the award was passed was considered by Hon'ble the
Supreme Court in the decision reported in (1996) 2 SCC 501 (Municipal Corporation of Greater Bombay v. Industrial Development
Investment Pvt. Ltd.) and it was held that,"" it is well settled law that when there is inordinate delay in filing the writ petition and when all steps
taken in the acquisition proceedings have become final the Court should be loath to quash the notifications. The High Court has, no doubt,
discretionary powers under Article 226 of the Constitution to quash the notification under Section 6 but it should be exercised taking all relevant
factors into consideration. When the award was passed and possession was taken, the court should not have exercised its power to quash the
award which is a material factor to be taken into consideration before exercising powers under Article 226"".
In the decision reported in AIR 1974 SC 2085 (Indrapuri Griha Nirman Sahakari Samiti Ltd. v. The State of Rajasthan and Ors.)
Hon'ble the Supreme Court held that land acquisition proceedings can be challenged within a reasonable time after which it has to be dismissed on
the ground of laches.
It is also a fact that out of 160 land owners, only 34 have questioned the acquisition i.e. 126 owners received compensation and major portion
of acquisition has become final. The total acquired land was to the extent of 123 Kanal and 13 Marlas. It is also not in dispute that the 5th
respondent in the appeal received the compensation and thereafter he choose to file the writ petition. Similarly though no land from private
respondent nos. 6, 14 and 15 was acquired still they joined with the writ petitioners. It is also a fact that entire compensation amount has been
deposited by the appellant immediately after passing the award.
The learned senior counsel appearing for the appellant has placed reliance on the judgment of Hon'ble the Supreme Court reported in AIR
2000 SC 671 : 2000 (2) SCC 48 (Municipal Council Ahmednagar and another v.Shah Hyder Beig and Ors) wherein it is clearly held that
after the award is passed, no writ petition can be filed challenging the acquisition notice or against any proceedings there under, which is a
consistent view taken by Hon'ble the Supreme Court.
A Division Bench of Madras High Court in the decision reported in 2005 (3) CTC 1 (Soundaravalli Ammal v. Government of Tamil
Nadu and Ors.) following the judgments of Hon'ble the Supreme Court has held that once the award is passed in land acquisition proceedings,
the notification as well as the declaration cannot be challenged.
A Division bench of Bombay High Court in the decision reported in (2008) 0 Supreme (Mah) 693 (Navnath v. The State of Maharashtra)
has held that after the award is passed, violation of intermediary stages of the acquisition cannot be raised.
The decision cited by Learned Counsel for the private respondents, AIR 2013 SC 856 (Patasi Devi v. State of Haryana and Ors.) which
was also relied on by the writ court is distinguishable on facts. The said case is relating to release of portion of the acquired land as per the policy
of the Government of Haryana clearly stipulating release of land on which construction had been raised prior to Sec 4 notification and the
appellant's case is covered by that policy and her land ought to have been released as was done in the case of M/s Sharad Farm and Holdings Pvt.
Ltd.
In such circumstances issue No. 1, namely, whether the land acquisition proceedings can be challenged after the award has been passed, is
held in favour of the appellant.
Insofar as the 2nd issue is concerned, acquisition proceedings with similar notification for extension of existing Industrial unit of the appellant
issued by the Collector Land Acquisition Kathua, was challenged by one of the land owners in OWP No. 698/2006 and the Writ Court dismissed
the writ petition, holding that it is for the Government to decide that a particular acquisition was required for public purpose and once the
Government arrives at such a conclusion it would be a conclusive proof about the purpose. The contention raised in the said writ petition that
petitioner would be deprived of his agricultural land which is the only source of his livelihood and his right to hold the property will be effected was
answered by the Writ Court by holding that at the time of setting up of the Unit of the appellant, the land was provided considering the public
purpose and now the land being acquired for extension of the Unit would also be covered by the public purpose. The said order has become final.
The contention raised by the private respondents who lands were acquired, that Section 39 to 42 of the Act have not been followed is the
issue to be considered.
Section 39 to 42 of the Act nowhere contemplates prior agreement of acquisition with the Government shall be made in writing. Though
Section 41 states that if the proposed acquisition is needed for the construction of a work and that such work or its product is likely to prove useful
to the public or that the purpose of the proposed acquisition is to obtain land for the erection of dwelling houses for workmen employed by the
company or for provision of amenities directly connected therewith, the Government shall require the company to enter into an agreement with
them providing satisfaction of the Government. The correspondence made by the appellant with the Industries Department can be noticed
hereunder:-
The appellant company on 07.07.2005 addressed a communication to the Principal Secretary to Government, Industry and Commerce
Department seeking 165 kanals of land adjoining to the existing land of the company as the company was planning to increase the installed
capacity from present capacity of 95300 spindles to about 2,00,000/- spindles within next seven years in a phased manner at a total capital outlay
of 325 crores with an intention to pay the total cost of acquisition of land and its development charges and also land rent as may be decided under
the provisions of para 3.1 (b) of Industrial Policy issued by Government Order No. 21-Ind of 2004 and other terms and conditions to be decided
by the Government at the time of handing over the possession. The Principal Secretary to Government, Industries and Commerce Department
after receiving the letter sent a communication to the Director, Industries and Commercial J&K Government on 11.07.2005 authorizing him to
interact with the Management of the appellant company and initiate the proceedings for acquisition of the land required by the company. The Joint
Director of Industries and Commerce on 05.08.2005 requested the Deputy Commissioner Kathua to prepare the revenue documents for
acquisition of additional land measuring about 165 kanals for expansion of appellant-Mill and for placing the final indent along with the tentative
cost. The Deputy Commissioner Kathua sent a reply to the Director Industries and Commerce J&K Government on 22.05.2006 stating that the
revenue documents have got prepared for acquisition of 123 kanals 13 marlas of land instead of 165 kanals at village Chakramsingh, Kharot and
Govindsar. The Collector Land Acquisition (Additional Deputy Commissioner) Kathua on 14.07.2006 sent a communication to Tehsildar Kathua
and the Deputy Commissioner Kathua on 29.08.2006 informed the Director Industries and Commerce Department that he has made all
preparations for placing final indent of land measuring 123 kanals and 13 marlas and certified that funds are available for acquisition of the said
land. Thereafter only the formal notification under Section 6 was issued and final award was passed. Thus there is agreement between the official
respondents and the appellant which is substantial compliance of Section 39 to 42 of the Act.
The learned Single Judge has allowed the writ petition on the ground that strict compliance of Section 41 has not been made.
The acquisition having been made for a public purpose on satisfaction of the Government, which can be inferred from above referred
proceedings, we are not in a position to appreciate the view expressed by the Writ Court to allow the writ petition.
It is not in dispute that by extending the appellant-Unit lot of employment opportunities would arise to the public at large, thus public interest
was kept as sole reason for acquiring the land i.e. for extension of the appellant-Unit. It is a well settled proposition of law that if public interest and
private interest are pitted against each other, the Court should always lean towards the public interest even though some persons may be effected
by virtue of the action of the Government.
The advantages in completing the mega project outweigh the alleged/possible disadvantages. The said view was expressed by Hon'ble the
Supreme Court in the decision reported in (2013) 6 SCC 620 (G. Sundarrajan v. Union of India) In paragraph 240 it is held thus:-
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
In the decision reported in (2004) 9 SCC 362 (N. D. Jayal v. Union of India) Hon'ble the Supreme Court has held that once a considered
decision is taken, proper execution of the same should be undertaken expeditiously and the Court has to ensure that the system works in the
manner it was envisaged in accordance with law.
In the decision reported in (1997) 1 SCC 134 (Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors.) Hon'ble the Supreme
Court, cautioned the High Courts in interfering with the land acquisition proceedings and in paragraph 10 held thus:-
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-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be 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 proceedings 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.
In such circumstances and in the light of the judgments cited supra, issue no. 2 is also answered in favour of the appellant.
Accordingly the order of the Writ Court is set aside and the L.P appeal is allowed. No costs.