Residents of Areas around Civil Airport and Another vs Union of India (UOI) and Others

Virender Singh, J.—For the purpose of expansion of Jammu Airport by extending its existing run way situate in village Satwari and Narwal

Pane, Tehsil and District Jammu, State of Jammu and Kashmir on the requisition of Airport Authority of India (hereinafter to be referred to as

AAI"") initiated acquisition process under the provisions of the State Land Acquisition Act, 1990 (1934 A.D.) (hereinafter to be referred to as

Act"") in year 2005 for acquiring the land in the vicinity of the Airport by issuing notification dated 24-11-2005 in terms of Section 4 of the Act.

The writ Petitioners through the present writ petition filed on 01-09-2007 in the representative capacity, questioning the legal validity of the

aforesaid notification, are praying for the following reliefs:

(i) Issue a writ in the nature of certiorari quashing impugned notice dated 24-11-2005 issued by the Respondent No. 6, u/s 4(i) of the J&K Land

Acquisition Act.

(ii) Issue a writ in the nature of mandamus commanding the Respondents to allow the Petitioners to construct/repair their houses in their land

owned and possessed by the Petitioners.

(iii) Issue a writ of Mandamus directing the Respondents to rehabilitate the already uprooted families and to make provision for the rehabilitation of

families to be uprooted, as a condition prior to the expansion of the Airport, so as to bring their action in accordance with the mandates of law

developed and recognized globally on in the alternate:

(iv) Direct the Respondents to shift the Civil Airport, Jammu, which situates in the heart/middle of the densely populated city to a safer location

outside the city limits.

(v) Any other writ, order, command or directions which this Hon'ble Court may deem just and proper in the given facts and circumstances may

also be granted/passed in favour of the Petitioners.

Along with writ petition, they also filed an application for seeking stay of the acquisition proceedings, but it appears that no interim relief was

granted in their favour, as such, Collector, Land Acquisition continued with the acquisition process and during the pendency of the lis, notification

u/s 6 was issued and ultimately award u/s 11 of the Act came to be made by the Collector on 30-01-2008, copy thereof has been placed on

record by the writ Petitioners themselves by annexing the same with their application bearing CMP No. 273/2008 filed for obtaining a direction to

the Respondents for maintaining status quo. Record reveals that on the suggestion of the Court, Advocate General appearing for the State, agreed

to seek instructions as to whether the State was contemplating formulation of Rehabilitation Policy for settlement of those who were to be uprooted

from their dwelling houses and lands because of the acquisition. Since Advocate General failed to report instructions in this regard, this Court vide

order dated 31st of May, 2008, by way of an interim relief to the writ Petitioners, put a restraint upon the State from demolishing their residential

houses where they were residing, but allowed to proceed with the project. Against the said order, AAI preferred Letters Patent Appeal before

Hon'ble Division Bench of this Court, but the same was dismissed, aggrieved thereof, filed SLP before Hon'ble Supreme Court, which too was

dismissed on 27-02-2008 with the observation for early disposal of the main writ petition.

Mr. Qazi, learned Additional Advocate General, makes a categoric statement that no Rehabilitation Policy is in the contemplation of the State

Government.

It needs to be mentioned here, AAI (Indenting Department) has already deposited the amount of compensation to the tune of Rupees four

crores with the Collector, who has further deposited an amount of Rupees three crores with the District Judge, Jammu.

Now as per the stand of the Collector, Land Acquisition (Respondent-6), there has been no objection of the writ Petitioners at any stage of the

proceedings until the passing of the award. It is an admitted position that no direct challenge to the notification u/s 6 or to the award made u/s 11 of

the Act has been thrown by the writ Petitioners.

In the aforesaid factual backdrop, the primary question arising for consideration before this Court is, whether notification u/s 4 is vitiated under

law?

The writ Petitioners in their petition have taken the following grounds for assailing the validity of the notification dated 24-11-2005:

(a) Whether the Ministry of Civil Aviation and Airport Authority of India, instead of taking steps for shifting the Civil Airport, Jammu, are justified

for expansion of the Civil Airport Jammu particularly in view of its vicinity with the international border and density of the population around and

there being State land already available and lying surplus at various places;

(b) Whether in view of the global and legal developments in the sphere of Human Rights to the basic necessities of life, i.e., food, cloth, shelter,

society, etc., the actions on part of the Respondents in dislocating the families without making any provisions for their rehabilitation is justifiable?

(c) Whether the competing claims for the bare existence can survive the plans of modernization (excellence) at the cost of human lives?

From the above grounds, the case of Petitioners set up in the writ petition appears to be that Government of India and AAI should not have

chosen to expand the existing Civil Airport in view of its proximity with the international border and also for the reason that dense population was

living in the vicinity of the Airport and instead, should have shifted the Airport to some other State land. It appears to be the further case of the

Petitioners that if extension of the existing Airport was indispensable, then Rehabilitation Scheme for the dislocated families must have been

formulated.

Heard learned Counsel for the parties and carefully perused the record of the case.

Mr. Raina, learned Senior Advocate, contends that much prior to the issuance of the notification u/s 4 of the Act, the writ Petitioners opposed

the steps being taken for expansion of the Airport before the Deputy Commissioner, Jammu, as is apparent from the initial communications placed

on record after which even learned Advocate General had agreed to obtain instructions with regard to the rehabilitation of the oustees. He goes on

to submit that the writ Petitioners filed objections to the proposed acquisition, but without according due consideration to the objections, the

notification u/s 4 has been issued which is legally not sustainable. To strengthen his case, he draws attention of the Court to one of the annexures,

i.e., an application moved to the Deputy Commissioner (taken on record vide CMP No. 463/2008).

Mr. Raina's main stress is that the ouster of the writ Petitioners from their dwelling houses and lands on account of acquisition is violative of

Article 21 of the Constitution of India as well as their basic human rights. He submits that to possess and enjoy one's own property in a decent way

is a Constitutional guarantee. According to Mr. Raina, it is not possible for the writ Petitioners to buy similarly situated property with the money

they would receive as compensation. He argues that in order to protect human and Constitutional rights of the writ Petitioners, it was necessary for

the State to have formulated a Policy for their settlement, immediately after their ouster, over similarly situated properties/lands, having all the

amenities necessary for a decent living. He submits that Article 21 of the Constitution of India guarantees every person a fundamental right to live a

decent life. The Petitioners, if were to be forced to leave their lands in lieu of the compensation alone, the said guarantee would be meaningless for

them. He further submits that rehabilitation may not have been necessary, had it been a question of ouster of few people from the land, but the said

principle would not apply here because cluster of people who have already set up their dwelling houses in the land notified are likely to loose not

only their source of livelihood but shelter also. He further submits that majority of the Petitioners are refugees who have already suffered agony of

partition, which resulted into the loss of their houses and properties situated across the border and in lieu thereof, they were allotted the land in

issue, from where after a period of more than 60 years, once again a fear of displacement is looming large over their heads. Therefore, it would be

in the fitness of things to direct the State to formulate a Rehabilitation Policy for the settlement of these writ Petitioners before they are ousted. Mr.

Raina also submits that the State, which is a welfare State, must always be interested in the well being of its citizens, is acting unreasonably in the

present case in showing apathy to the miseries of the writ Petitioners by causing their ouster. Therefore, it should not shirk from its obligation.

Mr. Raina then submits that the rehabilitation process of the Petitioners has to be simultaneously with the ouster of the writ Petitioners from the

land so as to see that immediately they are back in the same situation in which they have been before their ouster. In short, Mr. Raina seeks

direction from this Court to the State for formulating a Rehabilitation Policy for the settlement of writ Petitioners on the principle of ""pari passu"".

In support of his submissions, Mr. Raina relies upon following judgments handed down by the Hon'ble Supreme Court:

1 Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Others, , Francis Coralie Mullin v. Administrator, Union Territory of

Delhi and Ors.

Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, , Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors.

3 M/s. Shantistar Builders Vs. Narayan Khimalal Totame and others, {Corresponding to (1990) 1 SCC 520}, Shantistar Builders v. Narayan

Khimalal Totame and Ors.

4 Gauri Shanker and others Vs. Union of India and others, , Gauri Shanker and Ors. v. Union of India and Ors.

P.G. Gupta Vs. State of Gujarat and Others, : Corresponding to AIR 1995 SCW 1540, P.G. Gupta v. State of Gujarat and Ors.

6 U.P. Avas Evam Vikas Parishad and another Vs. Friends Co-op. Housing Society Ltd. and another, , U.P. Avas Evam Vikas v. Friends Coop.

Housing Parishad and Anr. Society Ltd. and Anr.

S. Jagannath Vs. Union of India and others, , S. Jagannath v. Union of India and Ors.

Narmada Bachao Andolan Vs. Union of India and Others, , Narmada Bachao Andolan v. Union of India and Ors.

9 N.D. Jayal and Another Vs. Union of India (UOI) and Others, , N.D. Jayal and Anr. v. Union of India and Ors.

(2005) 10 SCC 664, Narmada Bachao Andolan v. Union of India and Ors.

On the other hand, precise submission of Mr. Qazi, learned Additional Advocate General, is that the writ Petitioners have not been able to

project their case for the purpose of assailing the notification issued u/s 4 of the Act. He contends that after initiating the entire process and

following the provisions of the Act, notification u/s 4(1) was issued, which was given vide publicity, but no objection in response to the notification

was filed by the interested persons/land owners within the stipulate period. He then submits that thereafter the matter was submitted to the

Government in Revenue Department for issuance of notification under Sections 6 and 7 of the Act vide notification No. Revenue/LAS/178-06

dated 07-11-2006 to take order for possession of the land. Mr. Qazi submits that admittedly no challenge has been thrown to the notification u/s 6

of the Act by the writ Petitioners and that a notification u/s 17 of the Act was also issued by the Government in the Revenue Department vide

notification No 219-RD dated 27-12-2006 and then on the approval of the assessed compensation, ultimately an award was passed u/s 11(4) of

the Act. Therefore, the only right available to the writ Petitioners under the provisions of the Act is to claim compensation duly assessed in lieu of

their lands acquired as per the terms of the award, subject to their legal interest therein and no right vests with them for claiming rehabilitation. He

submits that the Act does not provide for any such relief. However, rehabilitation package demand was considered by the Government at one

stage, but not approved. According to him, the land owners shall be paid awarded amount plus 15% Jabrana and cost of the structure as already

assessed and, therefore, they cannot legally project any valid cause for their rehabilitation in the absence of any Policy framed by the State in this

regard.

Mr. Interjeet Gupta, Advocate appearing for AAI, submits that after the passing of the award, 80% of the compensation amounting to Rs.

4,12,57,392/- has been made and the AAI being the indenting department has only to pay the compensation to the Collector for the disbursement

of the amount as per the award. He then submits that about 50 owners of the structures/houses have already filed applications u/s 23(2) of the Act

for release of the Jabrana for which Mr. Gupta relies upon Annexure-A attached with his application bearing CMP No. 716/2008. He then

submits that the Collector, Land Acquisition has already deposited Rupees three crores vide Cheque No. 16252 dated 23-04-2008 and to say

so, he relies upon Annexure-B (taken on record vide aforesaid CMP No. 716/2008). According to Mr. Gupta, the role of the indenting

department is thus over and if the State has no Policy of rehabilitation of the oustees, the present writ deserves to be dismissed. According to him,

the delay caused by the State by seeking adjournments on several occasions to report instructions with regard to formulating Scheme of

Rehabilitation has rather adversely affected the public cause, as the entire expansion work has come to a complete halt.

I have given my thoughtful consideration to the submissions made by learned Counsel for either side and also gone through the case law cited

before me.

I will first of all deal with the challenge thrown by the writ Petitioners to the validity of notification dated 24-11-2005 issued u/s 4 of the Act.

Section 4 of the Act reads thus:

Publication of preliminary notification and powers of officers thereupon

Whenever land in any locality is needed or is likely to be needed for any public purpose the Collector shall notify it:

(a) through a public notice to be affixed at convenient places in the said locality and shall also cause it to be known by beat of drum and through

the local Panchayats and Patwaries;

(b) in the Government Gazette; and

(c) in two daily newspapers having largest circulation in the said locality of which at least one shall be in the regional language.

(2) After the Collector has notified any land in the manner prescribed in Clause (a) of Sub-section (1) as being needed or likely to be needed for a

public purpose it shall be lawful for any officer, either generally or specially authorized by the Government in this behalf, and for his servants and

workmen,-

to enter upon and survey and take levels of any land in such locality; to dig or bore into the sub-soil;

to do all other acts necessary to ascertain whether the land is adopted for such purpose;

to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;

to make such levels, boundaries and line by placing marks and cutting trenches; and

where otherwise the survey cannot be completed, and the levels taken and the boundaries and lines marked, to cut down and clear away any part

of any standing crop, fence or jungle:

Provided that, no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of

the occupier hereof) without previously giving such occupier at least ten days notice in writing of his intention to do so.

From the plain reading of Section 4, it is manifest that intention of the legislature in enacting the provision appears to be that public at large

including the persons having interest in the land, which is needed or is likely to be needed by the State for the public purpose should be made

aware of the fact in advance that State is intending to acquire such land. Therefore, the section makes it incumbent upon the Collector to notify

such land which may be acquired by the State through public notice to be affixed at a convenient place in the locality by beat of drum and through

the local Panchayat(s)/Patwari(s). In addition to this, the section further provides for publication of the notice in the Government Gazette and in two

daily news papers having largest circulation in the said locality of which at least one has to be in the regional language. Sub-section (1) of Section 4

thus relates only to the making of the intention of the Government that land in a particular locality is needed or may be needed for the benefit of the

public itself, known to all the concerned persons of the locality in prescribed mode. Whereas Sub-section (2) of Section 4 empowers the Officer

either generally or specially authorized by the Government or his servants and workmen to enter upon the land notified for assessing its utility qua

the public purpose.

From the careful reading of Section 4, it is manifest that the section no where enacts the rule of prior notice either to the public or even to the

persons interested in the land needed or which may be needed for public purpose, inviting objections at large, by issuance of notification u/s 4(1) of

the Act. It is for the State to decide independently, as to whether any particular land should be notified in terms of the section or not. After the

State takes any such decision, it is bound to issue notification in terms of Section 4(1) and to make the same public in the manner prescribed.

Before issuance of the notification, no person has any right much less a legal right to be heard in the matter.

u/s 4, when the State makes its intention that any particular land is needed or may be needed by it for public purpose known to all in the

prescribed manner, only then right to object to the acquisition accrues to the person(s) interested in such land by way of filing objections in terms of

Section 5-A of the Act.

Section 5-A reads as follows:

5-A. Hearing of objections

(1) Any person interested in any land which has been notified u/s 4, Sub-section (1), as being needed or likely to be needed for a public purpose

may within fifteen days after such land is notified in the manner prescribed in Clause (a) of Sub-section (1) of Section 4 as being needed or likely to

be needed for a public purpose, object to the acquisition of the land or of any land in the locality, a object to the acquisition as the case may be.

(2) Every objection under Sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of

being heard either in Person or by pleader or by a person authorized by him and shall, after hearing all such objections and after making such

further inquiry, if any, as he thinks necessary, submit the case for the decision of the Government, together with the record of the Proceedings held

by him and a report containing his recommendations on the objections. The decision of the Government on the objections shall be final.

(3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if

the land were acquired under this Act.

If any interested person files objections within the stipulated time, i.e., fifteen days, before the prescribed Authority, i.e. Collector, in terms of

Section 5-A(1), the same are required to be inquired into, where after the Collector has to make its report to the Government for its decision on

such objections. After which Government has to consider the objections, if any, and take the final decision for the purpose of issuance of the

notification in terms of Section 6 declaring that land notified is required for public purpose. Cause of action for raising the grievance that such

objections have not been considered can, thus, arise only after notification in terms of Section 6 has been issued. In the present case, admitted

position is that there is no challenge in the writ petition to the notification issued u/s 6 of the Act. In the absence of challenge to the notification u/s

6, validity of Section 4(1) of the Act cannot be assailed on the ground that the objections filed by the interested persons have not been considered.

Be it so. u/s 5-A(2), the objections to the notification u/s 4 have to be filed before the Collector within a period of fifteen days from the date of

issuance of notification. Though there is a specific denial from Respondent-6 about the writ Petitioners having filed any such objections, yet for the

sake of arguments, if it is assumed that the writ Petitioners did file their objections in terms of Section 5-A (2), it would be of no consequence

because admittedly the objections have not been filed before the Authority specified by law, i.e. Collector. As per own showing of the writ

Petitioners, as is evident from Annexure-E produced by them while responding to the supplementary affidavit filed by Respondents (Revenue

Authority), the objections dated 08-12-2005 were filed before the Deputy Commissioner, Jammu, whereas Collector was Assistant

Commissioner, Revenue. Objections filed before the Deputy Commissioner, therefore, cannot under law be treated to be objections filed before

the Collector. It is well settled principle that when law requires something to be done in a particular manner, that must be done in that manner

alone. Apart from that, in an action for questioning the legal validity of the notification u/s 4 of the Act, judicial review shall be permissible only into

the question, whether the procedure prescribed for making of the notification has been duly complied with. What consideration weighed with the

competent authority in issuing the notification shall be beyond the scope of judicial review. Even the rules of natural justice would have no play in

view of the nature of the provisions made in Section 4.

The writ Petitioners, therefore, cannot successfully urge that the decision to acquire land manifested in the notification dated 24-11-2005 issued u/s

4 of the Act is bad in law for having been made without according consideration to their objections. Resultantly, the arguments advanced by Mr.

Raina, learned Senior Advocate, on this aspect are devoid of any merit.

Let us now advert to the question of issuance of a direction to the State for rehabilitation of the writ Petitioners in the event of their ouster. In

my opinion, this prayer too, in law, cannot be allowed, there being no legal right vested in the writ Petitioners for insisting of rehabilitation. Reliance

upon the Authorities mentioned above on this issue is misplaced, the same being clearly distinguishable for the following reasons.

In Narmada Bachao Andolan Vs. Union of India and Others, (for reference first case), the issue was with regard to the development of

Narmada water resources, it being the fifth largest river in India having basin area of about one lac square kilometer. In this connection, a study

was undertaken in year 1947 and most of the sites also stood inspected by engineers and geologists. In year 1948, the Central Ministry of Works,

Mines and Power appointed an ad hoc Committee to study the projects and recommend the priorities. A report was submitted by the ad hoc

Committee suggesting certain projects and ultimately by Central Water and Power Commission, ""Navagam"" site was short-listed in consultation

with the then Government of Bombay for the construction of the dam. It so happened that State of Gujarat was carved out in 1960. So Narmada

project was got transferred to the State. As Narmada river was originated from Maikala Ranges at Amarkantak in Madhya Pradesh, in 1963

Union Minister of Irrigation and Power held discussion and exchange of views with the Chief Ministers of Gujarat and Madhya Pradesh.

Ultimately, an agreement was arrived at known as ""Bhopal Agreement"" and thereafter a high level Committee of eminent engineers headed by Dr.

A.N. Khosla was constituted by Government of India known as ""Khosla Committee"", which submitted its report. However, report submitted by.

the Khosla Committee could not be implemented on account of certain disagreements and ultimately u/s 4 of the Inter-State Water Disputes Act,

1956, the Government of India constituted a Tribunal headed by a retired Judge of Apex Court. Government made a reference of the water

dispute to the Tribunal. In between, State of Rajasthan also raised certain issues and another reference came to be made to the same Tribunal.

Ultimately, in year 1978, the Tribunal declared its final award in which while taking the issue of rehabilitation, gave directions regarding

submergence, land acquisition and rehabilitation of displaced persons. The said award became the issue of consideration before the Hon'ble

Supreme Court. Their Lordships observed in para 21 of the judgment as thus:

The main parameters of the decision of the Tribunal were as under:

(a) Determination of the height of Sardar Sarovar Dam

The height of the Sardar Sarovar Dam was determined at FRL 455 ft. The Tribunal was of the view that FRL +436 ft was required for irrigation

use alone. In order to generate power throughout the year, it would be necessary to provide all the live storage above MDDL for which an FRL

+453 ft with MDDL +362 ft would obtain gross capacity of 7.44 MAF. Therefore, the Tribunal was of the view that FRL of the Sardar Sarovar

Dam should be +455 ft providing gross storage of 7.70 MAF. It directed that State of Gujarat to take up and complete the construction of the

dam.

(b) Geological and seismological aspects of the dam site

The Tribunal accepted the recommendations of the Standing Committee under Central Water and Power Commission that there should be seismic

coefficient of 0.10 g for the dam.

(c) Relief and rehabilitation

The final award contained directions regarding submergence, land acquisition and rehabilitation of displaced persons. The award defined the

meaning of land, oustee and family. The Gujarat Government was to pay to Madhya Pradesh and Maharashtra all costs including compensation,

charges, expenses incurred by them for and in respect of compulsory acquisition of land. Further, the Tribunal had provided for rehabilitation of

oustees and civic amenities to be provided to the oustees. The award also provided that if the State of Gujarat was unable to resettle the oustees

or the oustees were unwilling to occupy the area offered by the State, then the oustees will be resettled by home State and all expenses for this

were to be borne by Gujarat. An important mandatory provision regarding rehabilitation was the one contained in clause XI Sub-clause (IV) (6)(ii)

which stated that no submergence of any area would take place unless the oustees were rehabilitated.

(d) Allocation of the Narmada waters

The Tribunal determined the utilizable quantum of water of the Narmada at Sardar Sarovar Dam site on the basis of 75% dependability at 28

MAF. If further ordered that out of the utilizable quantum of Narmada water, the allocation between the States should be as under: Madhya

Pradesh 18.25 MAF Gujarat 9.00 MAF Rajasthan 0.50 MAF Maharashtra 0.25 MAF

(e) Period of non-reviewability of certain-award terms

The award provided for the period of operation of certain clauses of the final order and decision of the Tribunal as being subject to review only

after a period of 45 years from the date of the publication of the decision of the Tribunal in the Official Gazette. What is important to note however

is that the Tribunal's decision contained in clause II relating to determination of 75% dependable flow as 28 MAF was non-reviewable. The

Tribunal decision of the determination of the utilizable quantum of Narmada water at Sardar Sarovar Dam site on the basis of 75% dependability at

28 MAF is not a clause which is included as a clause whose terms can be reviewed after a period of 45 years.

The aforesaid petition was finally disposed of on 18-10-2000 by the Apex Court directing inter alia that:

(i) displacement of the tribals and other persons would not per se result in violation of their fundamental or other rights;

(ii) on their rehabilitation at new locations they would be better off than what they were;

(iii) at the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets; and

(iv) the gradual assimilation in the mainstream of the society would lead to betterment and progress.

Since the directions issued by the Apex Court were not implemented in letter and spirit, applications were filed by Narmada Bachao Andolan,

a non-governmental organization, for directing the Respondents therein to rehabilitate each of the oustee properly strictly in accordance with the

orders of the Court. The Hon'ble Supreme Court, as such, in Narmada Bachao Andolan Vs. Union of India (UOI) and Others, (for reference

second case), observed in paras 54 and 55 as under:

The expression ""pari passu"", therefore, has a direct nexus with raising of the height vis-a-vis implementation of relief and rehabilitation progress

both of which must proceed ""equably"" or ""ratably"" which would mean that relief and rehabilitation measures must be undertaken as and when the

height of the dam is further raised. The said expression should be construed in a meaningful manner.

The applicants herein became affected with the raising of the dam at 90 metres and remained affected by further raising thereof up to 100

metres and, thus, in terms of the directions contained in the award as also the judgment of this Court, it is beyond any cavil that the applicants

herein, irrespective of the fact as to whether they are permanently affected or temporarily affected, were entitled to the benefit of the rehabilitation

package. We are not oblivious of the fact that the river valley of Narmada is shaped like an inverted cone and the area of submergence increases

exponentially for each metre of height raised. We are also not unmindful of the fact that before this Court it was contended by the original writ

Petitioners that whole land up to 138 metres should be acquired, people immediately be resettled and all requisite studies be done up to that level

before permitting the dam height to be raised. It is only in that context this Court used the expression ""pari passu"".

The fact situation in the present case is altogether different. There is no such award or order of any Authority passed in favour of the writ

Petitioners and as already said neither any Government Policy is in operation for such like rehabilitation in the State nor there is any statute in force

which provides for rehabilitation upon which the writ Petitioners can bank upon to project their cause. Therefore, they cannot derive any benefit

from the ratio of the Narmada Bachoa judgments (supra) for claiming rehabilitation from the State.

In N.D. Jayal's case, one of the issues arises for consideration of the Hon'ble Supreme Court related to the rehabilitation of the people of 37

villages and 88 villages to be affected fully and partially respectively to the formation of the lakes having a spread area of 42 square kilometers and

2.65 square kilometers at full reservoir levels, as a result of construction of Tehri and Koteshwar Dams. Their Lordships issued various directions

regarding the implementation of the rehabilitation package after observing as follows:

Rehabilitation is not only about providing just food, clothes or shelter. It is also about extending support to rebuild livelihood by ensuring

necessary amenities of life. Rehabilitation of the oustees is a logical corollary of Article 21. The oustees should be in a better position to lead a

decent life and earn livelihood in the rehabilitated locations. Thus observed this Court in Narmada Bachao Andolan case. The overarching

projected benefits from the dam should not be counted as an alibi to deprive the fundamental rights of oustees. They should be rehabilitated as

soon as they are uprooted. And none of them should be allowed to wait for rehabilitation. Rehabilitation should take place before six months of

submergence. Such a time-limit was fixed by this Court in B.D. Sharma v. Union of India and this was reiterated in Narmada. This prior

rehabilitation will create a sense of confidence among the oustees and they will be in a better position to start their life by acclimatizing themselves

with the new environment.

On the strength of above observations, Mr. Raina, learned Senior Advocate, tried unsuccessfully to persuade me to issue similar directions to

the State for rehabilitation of the Petitioners. In order to apply the above observations to the instant case, it would be important to note the fact

situation in which those were made in this behalf. What was said in the judgment by their Lordships is quoted in the following paras:

The effect of grant of clearance subject to pari passu conditions has also been examined by this Court in Sardar Sarovar Project case. It has

been noticed therein that there are three stages with regard to the undertaking of an infrastructural project the first of which is the conception or

planning, second is the decision to undertake the project and the third is the execution of the project. The conception and the decision to undertake

a project has to be regarded as a policy decision.

In Sardar Sarovar Project case it was also held that when two or more options are possible and the Government takes a policy decision it is

then not a function of the court to re-examine the matter by way of appeal. Necessary analogy could also be drawn from BALCO Employees'

Union (Regd.) v. Union of India.

Once such a considered decision is taken, the proper execution of the same should be undertaken expeditiously. It is for the Government to

decide how to do its job. When it has put a system in place for the execution of the project and such a system cannot be said to be arbitrary, then

the only role which the court has to play is to ensure that the system works in the manner it was envisaged. It is made clear in that decision that the

questions whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part

of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. However, a note of caution was struck

that the courts have a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights as guaranteed under the

Constitution are not transgressed upon except to the extent permissible under the Constitution. When a law has been enacted in relation to the

protection of environment and such law is being given effect to and there is no challenge to such law, the duty of the courts would be to see that the

Government and other Respondents act in accordance with law and there is no other obligation for the court to examine further in the matter. We

respectfully agree with the view expressed in Sardar Sarovar Project case and apply the same to the facts arising in this case. ""11. Further, it was

noticed in the aforesaid decision that in cases where a project is taken up of the present nature, the court will certainly bear in mind that

environmental concern should be examined not only with reference to the submerged areas but also its surrounding areas. The impact has to be

examined on the project as a whole and at the same time it should also be noticed that the construction of a dam would result in multifold

improvement in the environment of the areas where the canal waters would reach. The benefits which have been reaped by the people all over

India with the construction of the dams are too well known and, therefore, the Government cannot be faulted for deciding to construct the high

dam on River Tehri with a view to provide water and electricity in the area as was the decision in Sardar Sarovar Project case also. In such

situations, displacement of people residing in the proposed project sites and the areas to be submerged is an important issue. Therefore, a properly

drafted relief and rehabilitation plan is absolutely required and the Government was also conscious of this particular fact. It, therefore, not only

examined this matter on several occasions but also constituted an Expert Committee on 17-7-1996 to examine the environmental and rehabilitation

aspects. Several times the matter was examined by the Government at different stages and follow-up action plans also were actively considered by

the Government. The report given by the Hanumantha Rao Committee (HRC) was accepted by the Government subject to certain conditions and

the project is being implemented in terms thereof.

From the above narration, it is clear that in that case on rehabilitation aspect, the Government had constituted an Expert Committee

(Hanumantha Rao Committee) whose report stood accepted by the Government, whereas in the present case, it is not so. The decision to

constitute a Committee for preparing a scheme for rehabilitation, being a policy decision, falls outside the purview of judicial powers, therefore,

directions for directing rehabilitation in the instant case on the lines of N.D. Jayal's case (supra) validly cannot be issued. Thus, Mr. Raina cannot

derive any advantage from the said judgment in order to strengthen his case.

Now as regards the violation of Article 21 of the Constitution of India for which reliance is being made by Francis Coralie Mullin Vs.

Administrator, Union Territory of Delhi and Others, ; Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, ; M/s. Shantistar

Builders Vs. Narayan Khimalal Totame and others, ; Gauri Shanker and others Vs. Union of India and others, (corresponding to :AIR 1995 SCW

1540): 1995 Supp (3) SCC 456, and (1997) 2 SCC 121, in my view, all these authorities would also have no application in the fact situation of

the case on hand because ouster of the writ Petitioners from the lands in issue is going to be on the basis of the law, i.e., State Land Acquisition

Act, the vires of which have not been questioned in the instant petition.

Right to property is, undoubtedly, a Constitutional right, but is not in the nature of absolute and indefeasible right. Under the Scheme of

Constitution, this right always is subject to the law made by the legislature providing for compulsory acquisition of the property. Under such law, a

person can be deprived of the title and possession of the property in lieu of compensation by the State, provided the State needs such property for

the benefit of the public at large called ""public purpose"" The Land Acquisition Act is such kind of law. In the present case, the State has invoked

the provisions of State Land Acquisition Act for acquiring the property notified for the purpose of expansion of already existing run way of Jammu

Airport. It is nobody's case that the expansion of Airport's run way is not for public purpose. It also cannot be disputed that under the provisions

of the Act, in lieu of the land acquired, only compensation is payable, there being no provision for rehabilitation. It is also not in dispute that in the

State there is no Rehabilitation Policy in force for settlement of those whose dwelling houses or lands may be acquired by the State for public

purpose by providing an alternate site. In this backdrop, the question yet arising for answer would be, whether the writ Petitioners are entitled to

ask for a direction from the Court to the State for their simultaneous rehabilitation as a matter of Policy in consequence of their ouster from their

respective lands/houses?

Much has been said by Mr. Raina with regard to formulating of Rehabilitation Policy for the writ Petitioners and their settlement on the

principle of expression of ""Pari Passu"" on the strength of Narmada Bachao Andolan's case (2005) (supra). But I do not feel persuaded to accede

to the prayer made, as the same cannot be accepted under law for the reason that this Court does not have the competence to issue any such

direction to the State. Making of a Policy Decision is the sole domain of the State. In this behalf, reliance can be placed on the case titled Ravi

Khullar and Another Vs. Union of India (UOI) and Others, . Facts involved in the case broadly stated were: that land situated in certain villages

including the land on which there were industries were notified in terms of Sections 4 and 6 of the Acquisition Act for acquisition for the purpose of

expansion of Palam Airport, Delhi on the requisition of International Airport Authority of India (IAAI). Since change of user of the land was

required, Delhi Development Authority approved the same on the condition that IAAI would prepare detailed plan including the proposal for

rehabilitation/settlement of the villagers to be affected. IAAI requesting for acquisition of land conveyed its willingness to accept the suggestion for

provision of land for land, provided alternative land was acquired by Delhi Administration and no further liability was imposed upon IAAI for

acquiring industrial structure. Another notification u/s 4 for acquisition of the land for rehabilitation of displaced persons was issued. In this

backdrop, the question arose, whether the persons whose lands were acquired, were entitled to alternative land in lieu of the land acquired. Their

Lordships of the Apex Court after observing:

It then proceeded to consider the submission urged on behalf of the Appellant that in any event it was entitled to the allotment of alternative land in

lieu of the lands acquired. The High Court after noticing the Full Bench decision of the High Court in Ramanand v. Union of India: AIR 1994 Delhi

29 and the judgment of this Court in New Reviera Coop. Housing Society and Another Vs. Special Land Acquisition Officer and Others, ,

observed that if there was a scheme promulgated by the State to provide alternative sites to persons whose lands had been acquired, the Court

could give effect to the Scheme. However, it could not be argued as a matter of principle that in each and every case of acquisition the land owners

must be given an alternative site because such a principle, if adopted, would result in the State being unable to acquire any land for public purpose.

In the instant case the High Court dismissed the writ petition in view of the fact that there was nothing on record to indicate that any application

was made to the competent authority for allotting an alternative site within a reasonable period. Reliance placed on the decision of the learned

Single Judge of the Delhi High Court in Daryao Singh and Ors. v. Union of India and Ors. Civil Writ Petition No. 481/1982 dated 2nd August,

2001 was rightly rejected. That case related to a different award and the land owners concerned in that case gave up the challenge to the

acquisition proceedings in view of the assurance given than an alternative plot under the Scheme to be formulated shall be given to them. Those

facts do not exist in the instant case. Moreover the Government had agreed to allot the plots to the land owners and there was no question of

recognizing any right of the land owners to an allotment of alternative plots. In view of these findings the writ petition preferred by the Appellant

was rejected.

Held in para 45 as under:

Learned counsel for the Appellants strenuously urged before us that the land in village Rangpuri is still available and even if the three industries with

which we are concerned in the instant batch of appeals are allotted land to the extent of 25,000 sq. yards each, as recommended in the Joint

Survey Report, their purpose will be served. We are afraid we cannot accede to the request because that is a matter of policy and it is for the

government to take appropriate decision in that regard. In law we find no justification for the claim that even in the absence of a scheme for

rehabilitation of displaced industries alternative sites should be allotted to them for relocating the industrial units. It is no doubt true that the

acquisition of land in village Rangpuri by issuance of Notification u/s 4 of the Act on December 23, 1986 was for the public purpose, namely- for

rehabilitation of the persons displaced or affected due to the expansion /development of the Palam airport. Learned Counsel appearing for the

State contended that this public purpose has been achieved and the persons who were displaced from village Nangal Dewat in view of the

acquisition of their lands for the development of Palam airport have been allotted plots in village Rangpuri for their residence. There is nothing in the

Notification which obliges the State to provide equal alternative site to the industries for their rehabilitation.

For the sake of repetition, same is the fact positron here, as there is no Policy of the State in vogue which would provide for rehabilitation of

the writ Petitioners. Therefore, this Court will not be legally competent to issue direction for rehabilitation of the writ Petitioners in exercise of its

writ jurisdiction. Consequently, the argument advanced by Mr. Raina on this aspect is also bereft of any merit in it.

As a sequel to the aforesaid discussion, I do not find any merit in the instant writ petition and the same is thus dismissed along with CMP (s), if

any, without any order as to costs. Interim direction, if any, shall stand vacated.

Before parting with this case, I would like to say that issue of expansion of existing runway of Jammu Airport is very vital for the purpose of

economic development of the region and is likely to go long way. The cost of constructions of the terminal building, runway and the other buildings

of the Airport Authority is about Rupees forty crores as reflected in the reply filed by AAI. This may go further up. Since this expansion is definitely

going to improve the efficiency of the transportation system of the State which undoubtedly is a significant factor towards the development of the

area, I would like to direct the concerned Authorities to take up the project on war footing and complete the same as early as possible, as it has

already suffered much delay on account of judicial wrangles.

I would also like to make it clear that at the same time this judgment should not be taken by the State as an embargo on its sovereign power to

formulate a rehabilitation policy in favour of the writ Petitioners if it deems it appropriate.

Disposed of.