Rajinder Singh vs State Of H.P. And Others

Tarlok Singh Chauhan, J

The petitioner claiming himself to be a 'social and public spirited person' has filed the instant petition for the grant of following substantive reliefs:

"1. That present writ petition may kindly be allowed after summoning the record of the case and granting an opportunity of being heard to the parties.

That an appropriate writ in the nature of writ of mandamus or any other appropriate writ, order or direction directing the respondents to identify the land in and around Shri Mata Chintpurni Ji Temple for construction of parking facility to the devotees, who used to come there to pay obeisance throughout the country."

It is averred that Mata Shri Chintpurni Temple which has been taken over by the Government under the Himachal Pradesh Hindu Public Religious Institution and Charitable Endowments Act, 1984, has miserably failed to provide parking for devotees in and around the temple resulting in haphazard parking as also fleecing of devotees. In addition thereto, it is averred that in recent times, even the local people in and around the temple made offer of their land to be gifted to the temple for the purpose of construction of parking, but the respondents did not pay any heed to accede to such request.

The Temple Officer, who has been arrayed as respondent No.4, in his reply submitted that one Sanjay Kumar S/o Babli Ram was ready and willing to offer his 4 Kanals land for the construction of parking free of costs, but the terms and conditions on which he was offering the said land was found to be unreasonable and, therefore, the temple trust in its meeting held on 15.10.2014 resolved vide Resolution No.17 not to accept any conditional gift and only accept unconditional gifts. The proposed donor had put a condition of one month time for operation of parking from the offered land which was quite unreasonable because Temple trust needed to get feasibility, geotech, plan/drawing and TCP approval which was not possible within one month. Further, four Kanals land was insufficient to build the parking and moreover, the Temple trust would have to firstly identify adjacent land and then make a road after purchasing the same which was also not found to be feasible.

The petitioner in his rejoinder has set out certain other offers in paragraphs 14 and 15 which read as under:

"14. That the averments made in para 14 of the reply are wrong and denied. It is most respectfully submitted that a person namely Shri Sanjay Kumar who out of love and devotion towards the Temple was ready and willing to offer 4 Kanals of land for construction of parking to be done by the respondents for free of cost and for that he made an application to offer the said land which was replied also after about 2½ months, which is already annexed as Annexure R­1 and afterwards respondents did not take appropriate measures and no interest was shown to the said offer thus the said idea of donation was withdrawn by Shri Sanjay who afterwards refused to his offer for donation of his land.

That the averments made in para No.15 of the reply are wrong and denied. It is submitted that the respondents have visited site for parking near Talwara Bye Pass out of which the land of one Shri Ankur Kalia and Shri Shiv Kumar were been chosen for construction of parking. Thereafter, respondent No.2 on 4.10.2019 has directed respondent No.4 to visit the spot on 6.10.2019 alongwith aforesaid persons, revenue officials, Patwari, Kanungo alongwith members of the temple trust. Thereafter, all the aforesaid persons have visited the spot and check the revenue record and made negotiations with aforesaid owners of the land on 11.10.2019 and the respondents have wrongly projected the fact that this matter would be dealt in the next meeting of the temple trust as it is pertinent to mention that two meetings of trust had already taken place on 16.08.2019 and 15.11.2019, but intentionally this matter has not been dealt with which fact has been concealed by the respondents with malafide intentions from this Hon'ble Court.

Further, it is submitted that at present, the Temple trust is of 14 members which includes respondents No.2 to 4. Out of which, 10 are Government officials which were changed from time to time, those officials are not averse with the problems of the locality and only three members of the trust are the local residents, who are Pradhans of the different Panchayats and respondent No.4 is well aware about the problems of the locality, and the negotiation being made by respondent No. 4 and signed by the members of the temple trust and Pradhans of different Panchayats with the land owners namely Ankur Kalia and Shiv Kumar by the order of respondent No.2. It is further submitted that the Temple of Mata Chintpurni is the richest temple in Himachal Pradesh, which has approximately 135 crores of cash income generated through offerings by the devotees, but the funds are being used at the whims and wishes of the respondents and not being utilized for the up­liftment of the local residents and resolving any grievances of the devotees visiting the Shrine which action is writ at large, arbitrary and illegal.

Further it is submitted that earlier also in the year 2013, on the orders of this Hon'ble Court, the land for the construction of bathroom was purchased by the temple trust @ 4.25/­ lac per marla on the back side of the temple and prior to that approximately in the year 2000 or after, the temple trust has purchased the land @ 6/­ lacs per marla and many other lands are just being purchased by the temple trust. But no parking/toilets/or other required amenities are being constructed in the vicinity of the Temple and at nearby Talwara Bye Pass which is near to the Temple Mata Shri Chintpurni Ji."

Even these offers have not been found to be feasible as is evident from short affidavit filed on behalf of the respondents on 5.10.2020.

One Kewal Krishan, Ex­President, Gram Panchayat was allowed to intervene in the matter and in the reply so filed by him, it has been pointed out that ample amount for parking facilities has been provided by the Temple trust as during Navratras and melas because of rush all traffic is stopped at Bharwain and worshipers and visitors walk upto the Mata Chintpurni Temple except small taxies which are used for taking old and other people who cannot walk. Therefore, the parking site proposed by the petitioner also cannot be used in the melas and Navratras days. However, if someone is willing to donate the land for construction of the parking facilities, there can be no objection in providing open ground for parking without much cost of the Trust at those sites.

We have heard learned counsel for the parties and have gone through material placed on record.

The moot question in the instant petition is not regarding the availability of adequate parking space but is whether the Court even if there is no adequate space can direct the respondents, more particularly, Temple authorities to spend the amount collected through donations for construction of parking sites.

We are informed at the Bar that proposal mooted by the petitioner for development of parking sites would cost more than Rs.10 crores. Leaving aside even the cost of parking, can a writ of the nature as sought by the petitioner be granted by the Court?

It is more than settled that realm of policy is exclusive the domain of executive which may comprise both formulation of policy as well its execution and in absence of any policy, the Court cannot direct its formulation.

In addition to above, it is only the State which has power to deprive any person of property, that too, bearing in mind the provisions of Article 300­A of the Constitution of India. Therefore, unless and until the State on its own is interested in acquiring the land, the Court cannot pass directions compelling the State to acquire the land. The Court is not vested with jurisdiction to issue direction to the State to acquire third party's land in case the State is not willing to acquire the same.

Taking possession or acquisition should be in the connotation of acquisition or requisition of property for public purpose. The word "law" used in Article 300­A of Constitution of India must be an act of Parliament or of State Legislature, a rule or statutory order having force of law. The deprivation of property as observed earlier shall be only by authority of law, be it an Act of Parliament or State Legislature, but not by executive feat or an order. Deprivation of property is by acquisition or requisition or taking possession of for public purpose. It is more than settled that in case the owner of the immovable property is interdicted to deal with his property as he likes it would be violative of Article 300­A of Constitution of India.

The deprivation of property by a statute within the meaning of Article 300­A generally speaking must take place for public purpose or public interest. The concept of eminent domain, which applies when a person is deprived of his property postulates that the purpose must be primarily public and not primarily of private interest and merely incidentally beneficial to the public. An act or law, which deprives of a person of his private property for private interest will be unlawful and unfair and undermines the rule of law and can be subjected to judicial review.

The concept "public purpose" has been given fairly expansive meaning, which has to be justified upon the purpose and object of the Land Acquisition Act as also the policy of the legislation, if any. The public purpose is therefore a condition precedent for deprivation of a person from his property under Article 300­A. Article 300­A would be violated if the provisions of the law authorizing deprivation of property have not been complied with in letter and spirit. The law has to be reasonable and must comply with other provisions of the Constitution.

Somewhat similar issue was considered by one of us ( Justice Tarlok Singh Chauhan, J.) in Parkash Chand vs. State of H.P. and others, AIR 2015 H.P. 42, wherein it was observed as under:

I have weighed the rival contentions of the parties and of the considered view that this court is not vested with the jurisdiction to issue direction to the State to acquire third party's land only because the petitioner and other beneficiaries are willing to pay the price of the same, particularly when admittedly, the State of its own is not willing to acquire the land.

No doubt, the right to hold property has ceased to a fundamental right under the Constitution of India but then it has been left to the legislature to deprive a person of his property but in accordance with law. This right cannot be exercised by an individual(s) because Article 300­A provides that a person cannot be deprived of his property by executive feat and it can only be done in accordance with law. No law, no deprivation of property is the principle underlying under Article 300 A of Constitution of India, an executive order depriving of his property without being backed by law is not constitutionally valid. Under this Article right to property is not a human, but also a constitutional right and hence it cannot be taken away except in accordance with law.

Taking possession or acquisition should be in the connotation of acquisition or requisition of property for public purpose. The word "law" used in Article 300­A of Constitution of India must be an act of Parliament or of State Legislature, a rule or statutory order having force of law. The deprivation of property as observed earlier shall be only by authority of law, be it an Act of Parliament or State Legislature, but not by executive feat or an order. Deprivation of property is by acquisition or requisition or taking possession of for public purpose. It is more than settled that in case the owner of the immovable property is interdicted to deal with his property as he likes it would be violative of Article 300­A of Constitution of India.

The deprivation of property by a statute within the meaning of Article 300­A generally speaking must take place for public purpose or public interest. The concept of eminent domain, which applies when a person is deprived of his property postulates that the purpose must be primarily public and not primarily of private interest and merely incidentally beneficial to the public. An act or law, which deprives of a person of his private property for private interest will be unlawful and unfair and undermines the rule of law and can be subjected to judicial review.

The concept "public purpose" has been given fairly expansive meaning, which has to be justified upon the purpose and object of the Land Acquisition Act as also the policy of the legislation, if any. The public purpose is therefore a condition precedent for deprivation of a person from his property under Article 300­A. Article 300­A would be violated if the provisions of the law authorizing deprivation of property have not been complied with in letter and spirit. The law has to be reasonable and must comply with other provisions of the Constitution.

It is now well established that if the cost of acquisition is borne either wholly or partly by the government, the acquisition can be said to be for a public purpose within the meaning of Land Acquisition Act, but if the cost is entire borne by an individual, group of individual(s), or a company etc., then the same cannot be treated to be an acquisition for a public purpose within the meaning of Land Acquisition Act. No doubt, even if a trifling sum or even token or nominal contribution is made by the government, the same is held to be sufficient compliance with the second proviso to section 6 of Land Acquisition Act. In ultimate analysis, an acquisition can only be held to be for public purpose, if only the government comes forward to sanction the payment of a nominal sum towards compensation.

Indisputably acquisition of land is an act falling within the purview of eminent domain of the State and it essentially relates to the concept of compulsory acquisition as opposed to voluntary sale. But then the decision to acquire the property has to be of the State and not individual(s).

The acquisition of property of respondent No. 5 by proxy acquisition where not only the provisions of the Land Acquisition Act would be invoked but even the cost of acquisition and publication will be paid by some other third agency would in fact mean depriving the respondent No. 5 of his property save and except by authority of law, which would be contrary to the letter and spirit of Article 300 A of the Constitution of India.

Article 300 A imposes a duty and an obligation that no person can be deprived of his property save by the authority of law. In case such a course is permitted then the same would also be against the very object for which the Land Acquisition Act was enacted. All business, houses individuals etc. would then on their sheer financial strength be able to acquire prime properties. This obviously cannot be permitted as nobody can be permitted to buy others property without his consent.

The government while exercising the power as eminent domain may of its own chose and come to the rescue of the petitioner, but then this court in teeth of Article 300 A is not competent to issue directions to the State to compulsory acquire the land of 5th respondent even despite the fact that petitioner and other beneficiaries are not only willing but are ready to bear not only the cost of acquisition but also the cost of construction of the road. This would mean proxy acquisition, which is prohibited by law."

For the reasons stated above, we find the instant writ petition to be not maintainable and the same is accordingly dismissed, so also the pending application(s), if any.