Kashi Nath and Others vs State of U.P. and Others

B.M. Lal, J.—Since an identical question is involved for consideration in both the petitions mentioned above, they are being disposed of by this common judgment.

The short point which requires consideration in both the petitions is that whether alongwith the land dwelling house could also be acquired without providing alternative accommodation to the occupants of the house?

These petitions are directed against a notification dated 8-7-1975 (Annexure-2) and notice dated 14-11-1985 (Annexure-3) respectively, whereby Petitioners land (Plot No. 251/3 area. 24 acres and Plot no 246/1 area. 47 acres) is being acquired for making it available to Varanasi Development Authority for extension of Pahirya Housing and Development Scheme.

The acquisition proceedings have been initiated in accordance with the provisions of Land Acquisition Act, 1894 (here-in-after referred to as the Act), and after completing preliminaries the notification referred to above contemplated u/s 4 of the Act was issued. This acquisition is in the form Section 6 of the Act as the authorities are satisfied that the total land mentioned in the schedule is needed for public purposes referred to above.

Further having found that it is a matter of urgency the authorities have also invoked the provisions of Section 17 of the Act, directing the Collector, Varanasi that notwithstanding any award made u/s 11 of the Act authority may after fifteen days from the publication of notice issued under Sub-section (1) of Section 9 of the Act take possession of the land mentioned in the schedule which includes plot No. 251/3 area. 24 acres and plot No. 246/1 area, 47 acres.

This acquisition has been challenged by the Petitioners inter-alia on the ground that they are owners and possession of plot No. 251/3 and 246/1 situated in village Pahirya, Pergana Shivpur district Varanasi. They have constructed their dwelling house which is still standing over the land in dispute and they are dwelling therein alongwith their family members. It is also submitted that the Petitioners have no other suitable alternative accommodation in Varanasi city.

To support their contention it is also submitted that Varanasi Nagar Mahapalika has provided house number to them for the purposes of municipal taxes. Therefore, it is contended that till alternative suitable accommodation is provided to the Petitioners in Varanasi city, the acquisition of the dwelling house alongwith appurtenant land to it is not only illegal but against the principles of social justice.

In support thereof, it is next contended that whole idea behind acquiring the land belonging to the Petitioners and others is to provide houses to homeless citizens but by the present acquisition while acquiring their land for providing houses to homeless citizens, the Petitioners will become homeless, which certainly is not the object of the scheme.

It is also contended that there was no urgency in the matter so as to dispense with the normal procedure for acquiring Petitioners'' land and directly invoking the provisions of Section 17 of the Act.

On these two grounds the notification referred to above is being assailted.

While filing their counter-affidavit, the Respondents have taken the stand that so called house standing over the land in dispute is a finshed and same has been erected without any sanction from Varanasi Development Authority. In the counter-affidavit filed on behalf of Special Land Acquisition Officer (Respondent No. 3), it has been stated that among the Petitioners, only three of them i. e. Kedar Nath, Vijay Kumar and Kashi Nath have their residential houses over the plot under dispute on an area of 0.04 acre only.

Relating to the second contention, while justifying the issuance of the insuance of the notice it is contended that the world bank has advanced loan for such development to the development authority and this being a matter of urgency rightly recourse to Section 17 of the Act has been taken. There is no illegality committed by the development Authority. The petition has no merit and is liable to be dismissed.

Before considering the point in issue as to whether dwelling house could be acquired alongwith appartenant land, the definition of the word ''land'' enumerated in Section 3A of the Act has to be seen which reads as under:

The expression "land" includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth

In the above definition words "permanently fastened to anything attached to the earth" have got a wide import which includes soil, bilding, any charges on the land or other interests in it including superstructure, and therefore it is not the requirement of the law to mention separately the structure if any in the notification as the purpose of acquisition is to acquire the land but not superstructure standing on it.

The contention so raised by the learned Counsel for the Petitioner that for want of full descriptions of the superstructure standing on the land in dispute the notification issued u/s 4 of the Act looses its sanctity, has no force in as much as the notification u/s 6 of the Act is conclusive evidence of the fact that the land in question is needed for public purposes i. e. Pahirya and Development Scheme.

The point in issue has been taken into consideration in a catena of decisions by the Apex Court. See, Smt. Somavanti and Others Vs. The State of Punjab and Others, , Chaturbhuj Pande and Others Vs. Collector, Raigarh, and Bai Malimabu and Others Vs. State of Gujarat and Others, .

Learned Counsel for the Petitioner with great vehemence to support his contention referred to a decision rendered Bamandas Mukherjee Vs. State of West Bengal and Others, wherein it has been ruled that while acquiring dwelling house alternative accommodation should be provided to its occupants. This was a case where dwelling house was acquired for expansion of college and in that context, it has been held that vacant land cannot be equated with the residential building for the purpose of acquisition as it will render the occupants of that building homeless and this will be against the principles of social justice. If without making any alternative arrangement and without providing alternative accommodation to occupants, the said acquisition, is made, the same is likely to result into a great injury to them as they will be thrown out on the streets. Accordingly it was held that acquisition of dwelling house cannot be made without providing alternative accommodation to its occupants.

The facts of the instant case are distinouishable with that of Bamandas Mukherjee (supra). In the instant case the very existence of the house is disputed, notwithstanding that in the counter-affidavit filed on behalf of the Development Authority it is admitted that only a tinshed is there while counter-affidavit filed on behalf of the Land Acquisition Officer states that Petitioners are residing therein.

On the other hand, the Petitioner has no doubt stated that pucca construction is there and Nagar Mahapalika has allotted house number, but the house number has not been mentioned by the Petitioner for the reasons best known to them. In the absence of providing material, it is difficult to hold that dwelling house of permanent nature is standing on the land in dispute.

Be that as it may, all the same even if there is no pucca house standing and only temporary tin shed is erected which is being used for dwelling purposes, the same cannot be lost sight of in view of acute housing problem in the cite of Varanasi though the same cannot be an absolute rule on the face of Section 3A of the Act.

In such cases it is expected of the Court to take judicial note of it that if occupants of the dewelling house are thrown out on the streets after acquiring their land and house, it will be impossible for them to have an alternative accommodation at a reasonable rent in these days. May be occupants are landlords or tenants of the house. Therefore, certainly in such cases making alternative suitable accommodation available to the occupants, is a must being in conformity with the principles of social juitice.

In a democratic set up like ours, it is the welfare of the people and with this aim and object all the schemes are being launched. It is not that while providing homes to others, occupants of the land be deserted and made homeless. No doubt, the housing development scheme is for the benefit of the public at large but at the same time the interest of an individual cannot altogether be ignored.

It is true that interest of an individual can be sacrificed and ignored for the betterment of the society but this cannot be an absolute doctrine. Therefore even if there is a little truth in it that temporary shed is there which is being used for dwelling purposes, certainly the Petitioners are entitled for alternative accommodation.

However, on this basis alone the proceedings of land acquisition cannot be quashed wherein larger interest of public would be served in acquiring the land and providing accommodation, and therefore it cannot be said that at the cost of others the Petitioners have sacrificed their interest making them homeless. The fact remains that the land is being acquired to implement the scheme to subserve the purpose which is beneficial for public at large.

However, to get over the argument of the Petitioners that the Petitioners may not be made homeless, the Development Authority if directed to accommodate the Petitioners on priority basis in the said scheme by providing suitable accommodation to them subject to payment of requisite price, would serve the purpose.

This will also be on the same footings as in Industrial policies wherein if land is acquired for industrial purposes one of the family members is accommodated and provided job in that very industry so as to redeem the loss sustained by the family on account of acquisition of their land.

Accordingly, we direct the Varanasi Development Authority (Respondent No. 4) to accommodate the Petitioners in Pahirya Housing and Development Scheme by providing a suitable accommodation on priority basis subject to payment of requisite price by them irrespective of the fact that they have made application for allotment in time or paid registration fee etc. or not, but allotment shall be made in their favour on usual conditions mentioned above.

With the above direction, both the petitions are dismissed.