Puran Chand and Others vs State of H.P. and Another

Kamlesh Sharma, J.—These writ petitions (C) W. Ps. No. 263 and 292 of 1997) are being disposed of by a common judgment, as the same notifications u/s 4 as well as under Sections 6 and 7 of the Land Acquisition Act (hereinafter called as ''the Act'') are under challenge in both these writ petitions and common questions of law and fact are involved therein.

The Petitioners in both these writ petitions are co-sharers of one half share (36 shares out of 72 shares) of a parcel of land comprised in Khasra Nos. 427, 428, 429, 430 and 431 situate in village Paddar Jandragal, Tehsil Dharamsbala District Kangra (hereinafter called the land under acquisition). They are aggrieved by the notification u/s 4 of the Act issued on 19-3-1997 as well as notification u/s 6 and 7 of the Act issued on 30-6-1997 whereby the Respondents have decided to acquire the land under acquisition for the public purpose of extension of Chamunda Nandikeshwar Temple''s premises and for providing various amenities to the pilgrims on the ground that no inquiry u/s 5-A of the Act was conducted and also that land adjacent to the land under acquisition is available for the public purpose, but it has not been acquired and land under acquisition belonging to the Petitioners is being acquired mala fide and for extraneous reasons According to the Petitioners, land comprised in Khasra Nos. 496, 459, 478 and 425 owned by the Respondents could have been acquired instead of land under acquisition. They have also pointed out that the land comprised in Khasra No, 420, 421, 422, 423, 485 and 495 adjacent to the Temple is a good alternative site for the public purpose for which the land under acquisition is being acquired.

The Respondents in their reply, filed on the affidavit of Shri S K B. S. Negi, Deputy Commissioner, Kangra at Dharamsbala,. have stated that the Petitioners were afforded full opportunity to submit their claims in writing on or before 19-4-1997, as required u/s 5-A of the Act and they have filed written objections. It is further stated that in the revenue record the land under acquisition is described as ''Bagicha Kuhli Faldar'' but on the spot the Petitioners have constructed temporary Khokhas and rented them out to the tenants. As per the stand of the Respondents, the land under acquisition is in the vicinity of Chamunda Temple and is suitable for extension of the temple complex being situated between the path leading to the Temple and Khad Baner. It is admitted that the land comprised in Khasra Nos. 496, 459, 478 and 425 is owned by the State of Himachal Pradesh and other residents of Mohal, which is being used for the construction of ''Langar Bhavan'' of the Temple and ''Sarai'' Library and Toilets are already existing thereon, Hence, notifications u/s 4 as well as under Sections 6 and 7 of the Act are sustainable in law.

After hearing learned Counsel for the parties and going through the record we do not find any substance in the submission made on behalf of the Petitioners that proper inquiry u/s 5-A of the Act was. cot conducted before issuing notification under Sections 6 and 7 of the Act. From the record of the Land Acquisition Collector we find that in pursuance of notification u/s 4 of the Act the Petitioners bad preferred separate objections, which they had submitted in person to the Land Acquisition Collector. It is correct that no separate ordersheet was maintained by the Land Acquisition Collector and orders were recorded on the reverse of the page on which the objections on behalf of each of the Petitioners were typed In the order dated 19-4-1997 after recording presence of each of the Petitioners, they were directed to come up for further action on 30-4-1997, on which date no proceeding could be held, as the Land Acquisition Collector was busy in some other work, though each of the Petitioners was present, as recorded in the order. Thereafter the matters were adjourned to 12-5-1997, when after recording the presence of the Petitioners, the matters were further adjourned to 20-5-1997 for consideration and orders. On 20-5-1997 detailed order meeting each of the objections was passed. Since the objections raised by the Petitioners and Ors. were identical, the order dated 20-5-1997 in each of the objection petitions was identical. We find that come objectors were not present on 12-3-1997, therefore, their objection petitions were dismissed in default.

The perusal of the objections shows that the objectors Petitioners have made general allegations, such as, the acquisition was mala fide and politically motivated as the Chamunda Nandikeshwar Temple owns huge vacant land, which can serve the public purpose for which the acquisition has been made and also that the members of the families of each of the objectois-Petitioners are dependent upon the income of the shops built on the land under acquisition and they will be deprived of their livelihood. The Petitioners had not given the particulars, more specifically, the Khasra numbers of the alternative land adjacent to the Chamunda Nandikeshwar Temple, as they have given in the present writ petitions to enable the Land Acquisition Collector to give his findings in respect thereof. We also find from the record that on 24-5-1997 the Land Acquisition Collector had sent his report in respect of inquiry u/s 5-A to the Commissioner-cum-Secretary (PWD) to the Government of Himachal Pradesh for issuing notification under Sections 6 and 7 of the Act, in which it is specifically stated that during the course of inquiry the obections were decided on 20-5-1997 after hearing the objectors on 12-5-1997. It is also stated in the report that each of the objectors/Petitioners was present on 20-5-1997. The objections raised by them and the decision taken by the Land Acquisition Collector thereon also finds mention in the report

Learned Counsel for the Petitioners, after inspecting the records, has vehmently urged that the way the said records are maintained substantiates the allegations of the Petitioners that no proceedings were held by the Land Acquisition Collector except receiving objections of the Petitioners on 19-4-1997 and the records were prepared at a later stage to meet the allegations of the objectors-Petitioners that no inquiry u/s 5-A of the Act was held. It is correct that the file of the Land Acquisition Collector containing documents in respect of the inquiry u/s 5-A of the Act is not maintained properly, as neither it is numbered nor paged nor indexed, nor notings or separate order sheets were prepared, but all these deficiencies are not enough to hold that no inquiry was held u/s 5-A of the Act and the records thereof were prepared later on, as alleged by the Petitioners. We do not find any material on record to come to the conclusion that the'' Land Acquisition Collector had any reason to prepare false records of the inquiry u/s 5-A of the Act, as the learned Counsel for the Petitioners has tried to point out. Above all, the report in respect of the inquiry u/s 5-A of the Act referring to the proceedings on 30-4-1997, 12-5 1997, and 20-5-1997 was already sent on 24-5-1997, whereas the writ petitions were filed on a much later date on 28-7-1997 making allegations, inter alia, that no inquiry u/s 5-A of the Act was conducted, which disproves the allegations of the Petitioners In view of this the contention of the learned Counsel for the Petitioners that the reply affidavit does not contain the details of the proceedings of the inquiry u/s 5-A of the Act, is also without any substance.

So far recording of statements of some of the Petitioners on later dated i.e. 6-10-1997 that except their objections dated 19-4-1997, they had nothing to state is concerned, it appears to have been done as a matter of abundant caution and a supplementary report alongwith these statements and other relevant documents was sent on 16 6-1997. Till notification under Sections 6 and 7, of the Act is issued, the Land Acquisition Collector was within his right to hold further inquiry to supplement his report u/s 5-A of the Act learned Counsel for the Petitioners is not right in urging that after sending his report on 24-5-1997, the Land Acquisition Collector became functus officio and he could not hold further inquiry and record the statements of the Petitioners and other objectors. By their statements the Petitioners had categorically stated that they had nothing to add to their objections, which they had filed on 19-4-1997. Therefore, we have no hesitation to hold that the Petitioners were given opportunity to file objections to the acquisition of their land, which were duly considered by the Land Acquisition Collector before submitting his inquiry report for issuance of notification under Sections 6 and 7 of the Act. We do Hot find any infirmity in the inquiry u/s 5-A of the Act held by the Land Acquisition Collector.

The next submission of the learned Counsel for the Petitioners that alternative land comprised in Khasra No. 496, 459, 478 and 425 adjacent to the land of the Chamunda Nandikeshwar Temple and owned by the State of Himachal Pradesh, is available, as such, the acquisition of their land is actuated by ill-will and malice in law. In reply, the Respondents have made it clear that this parcel of the land is already being used for the construction of Langar Bhavan, Sarai, Rocks Library, toilets etc. etc. of the temple Similarly, the Petitioners have referred to Anr. land comprised in Khasra Nos. 420, 421,422,423, 485 and 495, which according to them can be used for the extension of the Chamunda Nandikeshwar Temple premises, for which their land is being acquired, but they have not been able to substantiate their submission during the course of the arguments, as there is nothing on record to show as to who are the owners of this land, what is its location and whether it is suitable for the purpose for which the land of the Petitioners is being acquired. It is correct that in their reply-affidavit the Respondents have not specifically referred to this land but according to them, the land under acquisition belonging to the Petitioners is most suitable for the purpose of extension of the Chamunda Nandikeshwar Temple premises, as it falls between the path of the temple and Khad Baner Moreover, had the Petitioners pointed out alternative parcels of land in their objections before the Land Acquisition Collector, he would have made proper inquiry and given his findings in respect thereof. Therefore, this submission of the Petitioners is also without any merit. Further, we find substance in the submission of the learned Advocate General appearing on behalf of the Respondents that it is for the Land Acquisition Collector to assess the suitability of the land proposed to be acquired for the concerned public purpose and his decision cannot be challenged merely on the allegations that an alternative land is available. While dealing with the similar argument, as raised before us in these writ petitions, the learned Judges of the Supreme Court in Ramgir Uttamgir Goswami Vs. State of Gujarat and Another, have observed in para 7:

...The assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the Land Acquisition Officer to consider and no good reason has been shown to us which could warrant interference with his decision, Moreover, we are satisfied that the Appellant had not even given proper particulars of the other lands which, according to him, were available for acquisition and were more suitable for acquisition and hence he can make no grievance on the score of proper consideration not haying been given to the question of acquiring such lands.

In Anr. judgment of the Supreme Court in Bharat Singh and Others Vs. State of Haryana and Others, the learned Judges have also rejected the contention of the land owners, whose land were proposed to be acquired, that they have been discriminated, inasmuch as. the lands of other land owners in the village have not been acquired. The learned Judges have opined that, "the Government will acquire only that amount of land which is necessary and suitable for the public purpose in question. The land belonging to the Petitioners have been acquired obviously considering the same as suitable for the public purpose. The Petitioners cannot complain of any discrimination because the land of other persons has not been acquired by the Government.

Learned Counsel for the Petitioners has also made a feeble attempt to lay a challenge that the purpose for which the land of the Petitioners is being acquired, is not a public purpose It is not in dispute that the Chamunda Nandikeshwar Temple is one of the Temples included in the Schedule under Sections 1(3) and 29 of the H.P. Hindu Public Religious Institutions and Charitable Endowment Act, 1984 and the administration, general superintendence and control of this Temple is of the Commissioner under the provisions of the said Act. In view of this, the acquisition of land for the purpose of extension of the Chamunda Nandikeshwar Temple premises is a public purposet. For taking this view we find support from the judgment of Andhra Pradesh High Court in K. Ankaiah and Others Vs. Government of Andhra Pradesh and Others, and M. Padmanabha Iyengar Vs. The Government of Andhra Pradesh and others, and the judgment of Karnataka High Court in Papanna and etc. v. State of Karnataka and Ors. AIR 1983 Karn 94.

Further, whether the public purpose exists Or not is the satisfaction of the State Government and it is not open to judicial scrutiny unless there is mala fide or colourable exercise of powers In a judgment of the Supreme Court in Bajirao T. Kote (Dead) by Lrs. and Another Vs. State of Maharashtra and Others, the learned Judges have opined:

...When the State Governments have exercised the power u/s 4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of mala fides or colourable exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primirily for the State Government to decide whether there exists public purpose or not, and it is not for this Court or the High Courts to evaluate the evidence and come to its own conclusion whether or not there is public purpose unless it comes to the conclusion that it is a mala fide or colourable exercise of the power. In other words the exercise of the power serves no public purpose or it serves a private purpose....

The last submission of the Petitioners that the Petitioners will be deprived of their livelihood if their land is acquired as they are running small shops on the land under acquisition to earn their livelihood, is also without any substance in view of the reply of the Respondents that the Petitioners have constructed temporary ''Khokhas'' and rented them out to the tenants and also that they are not solely dependent upon the income from the rent of these ''Khokhas'' for their livelihood. However, while awarding them compensation, this factor can be kept in view by the Land Acquisition Collector and the case of the Petitioners may be considered under Sub-section (3-A) of Section 31 of the Act (Himachal Amendment) for granting them some other land of equivalent value in exchange of their acquired land. No other point is raised on behalf of the Petitioners.

The result of above discussion is that we do not find any ground to set aside the notifications u/s 4 as well as under Sections 6 and 7 of the Act and both the writ petitions are dismissed. There is no order as to costs.