HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
c/w Contempt no.445/201[SECTION] Date of order: 19.08.201[SECTION] [ENTITY] and others Versus [ENTITY] and others Coram:
Hon'ble Mr Justice [ENTITY], Judge Appearing Counsel:
For Petitioner(s): Mr [ENTITY], Advocate For Respondent(s): Mr [ENTITY], AAG Mr [ENTITY], AAG Mr [ENTITY], Advocate Whether approved for reporting? Yes/No
1. The case set up by petitioners is that an irrigation canal was constructed by Public Works Department, for irrigation of Kharbuthang Command area which was commissioned somewhere in the year 1985 and after negotiation/ decisions taken with the local army for vacation of some portion of land from any occupation, they total command area was identified for distribution among the people. A committee under the chairmanship of the then Ladakh Affairs Minister, including District Development Commissioner, [ENTITY], Superintending Engineer, PWD [ENTITY] and other is said to have been constituted for recommending a proposal for distribution of command area. The committee in its meeting held on 19th October 2015, according to petitioners, is averred to have recommended allotment of land in favour of people of 11 villages having grazing right over the land and the proposal of the committee is stated to have approved by the Chief Minister and accordingly [CASE NUMBER] dated 24th October 1985 came to be issued.
Despite approval by the Chief Minister and passing of [CASE NUMBER] dated 24th October 1985, no distribution of land is alleged to have been made by respondents. Thereafter letter dated 28th July 198[SECTION] was addressed by [ENTITY], to Secretary to Government Ladakh, Affairs Department, [PRECEDENT], stating therein that as in the committee's recommendations, no criteria was fixed against item a,b,c and d of serial no.2 of the Draft Order, but as per grazing rights of different villages, the committee fixed the criteria in respect of families residing in different villages, having grazing rights, as such, as per the availability of command area for distribution among families of different villages as per 1981 census, the area of land for distribution is proportionately reduced and the actual area for allotment as per criteria, should be the one as stated in the communication and as per the said criteria, land measuring 06 Kanals per Chula was decided to be allotted besides other villages to the villagers of [ENTITY]. Tehsildar [ENTITY], in view of recommendation of the committee, is said to have after measurement of command area, submitted a detailed proposal on 3rd February 1988 for allotment of land to [ENTITY], in which besides other things he proposed that land measuring 1052 Kanals and 18 Marlas, at 06 Kanal 10 Marlas amongst 162 Chulas of Village [ENTITY]/Partapganj should be allotted to them. In order to stop further encroachment by non-civilians, possession of land to each village as a whole as mentioned in column no.3 of letter dated 3rd February 1988, is averred to have been handed over in the year 1988 itself to the villagers but individual allotment orders were not issued and the people including those living in village [ENTITY]/Baghi Khumini also divided the land amongst themselves at their own level, which turned barren land into a green land. In terms of the aforesaid division, the petitioners, it is contended, were also given the land and after division of the land, Order no.Rev (LB) 1[SECTION]5 of 1993 dated 2[SECTION].12.1993, specifying the rules for allotment of land in command area of [ENTITY] District was issued.
2. Further case of the petitioners is that in the year 2003, Ladakh Autonomous Hill Development Council was constituted and in terms of its [SECTION], all land was transferred to LAHDC [ENTITY] and an SRO 182 dated 6th June 2003 was also issued, delegating the executive powers of allotment, occupation, efficient use and management of land to the Council, but the formal orders of allotment in favour of each individual were not issued. It is contended that after issuance of [CASE NUMBER], Deputy Commissioner/CEO, LAHDC, [ENTITY], (respondent no.4 herein) vide order dated 19th June 2015, transferred the State land measuring 65 Kanals 19 marlas under
Khasra/Plot no.4, 6 and 26, situated at Kharbuthang, [ENTITY], in favour of Executive Engineer, Electric Sub Transmission Division PDD, [ENTITY], for construction of 220/66 KV Grid Station. It is averred that resident of village Baghi Khumini and [ENTITY] through petitioners and others, submitted a representation to [ENTITY], on 23rd June 2015, objecting passing of order dated 19th June 2015. A writ petition, registered as [CASE NUMBER], was filed, wherein this Court vide order dated 18th September 2015 is said to have directed that while dealing with the immoveable properties of petitioners, respondents would follow procedure established by law. The next averment of petitioners it that in terms of order dated 11th March 2016, issued by respondent no.4, allotment land in favour of villages Choskore, Pashkum, Yourbaltak, Barchay, Apati, [ENTITY] and [ENTITY] as shown against each in the Annexures 1 to 8 to the said order dated 11th March 2016 except the plots as shown in Annexure 9 thereto. Petitioners claim that they deposited the rent @ Rs.1/- per marls per annum for ten years against proper receipt. Thereafter, respondent no.4 is asserted to have vide order dated 4th June 2016, cancelled earlier order dated 19th June 2015, thereby rendering petitioners' earlier writ petition infructuous.
3. It is mentioned by petitioners in writ petition that during interregnum of orders dated 11th March 2016 and 4th June 2016, [ENTITY] - respondent no.5, issued notice bearing no.DC-K/LAC-PDD/GRID/2016 dated 11th May 2016, under [SECTION] of the [ACT], for construction of 220/66 KV GIS Sub Station at Kurbathan, objections thereto filed by petitioners, were not considered by respondent no.5, forcing one of the petitioners to file Suit for Declaration and Mandatory Injunction before learned Chief Judicial Magistrate, [ENTITY], in which order of restrain was passed on 13th October 2016. Legal notice, it is averred, was served upon respondents for non-implementation of order dated 14th October 2016. Petitioner admit that order dated 14th October 2016 has been vacated by learned Chief Judicial Magistrate, [ENTITY], vide order dated 22nd November 2016. Facing the said situation, an application was filed for withdrawing the suit with liberty to file a fresh one, in which notice was issued to other-side. As a consequence, respondents started fencing the land in question, which was followed by withdrawal of [CASE NUMBER] as that, according to petitioners, had become infructuous. Petitioners are aggrieved of notice bearing no.DC-K/LAC- PDD/GRID/2016 dated 11th May 2016, issued by respondent no.5 and seek quashment thereof, with further direction to respondents not to fence petitioners' land measuring 16 Kanals and 1[SECTION] Marlas or raise any sort of construction thereon.
4. Upon institution of writ petition on hand, threshold interim order dated 26th April 201[SECTION] was passed, followed by clarification order dated 23rd May 201[SECTION], directing respondents to maintain status quo. This was followed by filing of Contempt No.445/201[SECTION], in which notice was issued to respondents vide order dated 11th July 201[SECTION], with a direction to strictly comply with Writ Court orders.
5. [ENTITY] (respondents 6&[SECTION] herein) have filed its reply on 8th June 201[SECTION]. Respondents insist that petitioners have withheld important/relevant facts qua vacation of stay order dated 22nd November 2016, passed by learned Munsiff, Sanko, in Suit titled [PRECEDENT], instituted by petitioners as well as other villagers in a representative capacity on 13th October 2016, which was still pending for adjudication when instant writ petition was filed. It is insisted that possession of land in question was never with petitioners and is used for execution/construction of 220/66 KV Grid Station and the work was already started and for continuation of same a daily expenditure of Rs.6,35,489/- is being incurred from public exchequer as the project is being funded by Governments of India and J&K State jointly and same is to be completed without any further delay by the end of this year keeping in view its importance. Possession of the land, it is maintained by respondents, has been handed over to them in the month of August 2015 by Tehsildar [ENTITY] under the orders of respondent no.4 vide [CASE NUMBER] dated 19th June 2015 and the work was smoothly and continuously started, but petitioners are said to be trying to interfere in the same without there being any justification as neither petitioners are actual owners of the land nor is the same in their possession. Rs.2.56 crores has been placed at the disposal of Revenue Department; of which Rs.1.09 crores has been disbursed to landowners. Respondents maintain that if petitioners are found entitled for compensation, same will be paid to them, but the project work being of very important nature run by the J&K State as well as Government of India under Prime Minister's Level (PRAGATI) cannot be stopped. Besides this, Rs.6,35,489/- is being incurred from [ENTITY] on daily basis in view of minimum work season, 100 number of labour along with machinery has been deployed at site. Since start of work more than 25-30% of work is said to have been already completed on spot and about Rs.50.00 crores already spent. Respondents maintain that contention of petitioners that interim order dated 22nd November 2016 has been passed at their back by Civil Court is not a fact but same was passed after hearing both parties inasmuch as petitioners have admitted filling of withdrawal application.
6. I have heard learned counsel for parties and considered the matter.
[SECTION]. Learned counsel for petitioners states that impugned notice has not been published in terms of [SECTION] of the [ACT], in that, he was to affix the notice at convenient place in the locality and had also to cause it to be known by beat of drum and through local Panchayat ant Patwari and he had also to notify it in two daily newspapers having largest circulation in the locality, of which at least one had to be in the regional language, but he has not followed the same and more particularly even objections, deposited by petitioners in pursuance of impugned notice dated 11th May 2016, have not been considered in line with [SECTION] of the Act inasmuch as respondent no.5 has not given opportunity of being heard to petitioners and that after referring the matter to the government, no declaration in terms of [SECTION] or [SECTION] has been issued by the Government.
8. Learned counsel for respondents 1 to 5 states that land in question has never been in possession of petitioners or, for that matter, in possession of any individual, in that, same is the State land and possession is with the State. He states that land measuring 1052 Kanals & 18 Marlas is a State land and out of the same, 65 Kanals 19 Marlas was handed over to Power Development Department, [ENTITY], for execution and construction of Grid Station and Power Development Department handed over the same to Power Grid Corporation of India for execution of the work costing more than 200 crores. Learned counsel for respondents strenuously submits that erstwhile Deputy Commissioner/ CEO LAHDC, [ENTITY], namely, [ENTITY], had unfortunately initiated the proceedings under the [ACT] without there being any need to do the same and he even entered into a private negotiation with the so-called villagers including petitioners and on the basis of said negotiation, he asked Power Grid Corporation of India, to deposit an amount of Rs.2.55 Crores for land measuring 65 Kanals 19 Marlas situated Khurbathang, [ENTITY] and not at [ENTITY], [ENTITY]. Out of the said amount Rs.1.41 Crores, according to learned counsel, has been disbursed to 25 persons @ Rs.3.88 Lacs per kanal. He maintains that instead of receiving compensation, petitioner moved an application under [SECTION] of [ACT], for referral. Reply on behalf of respondents 1 to 5 is, at request, taken on record.
9. Learned counsel for petitioners, while retorting submissions of learned counsel for respondents 1 to 5, states that on one hand respondents have given compensation to 25 similarly situated persons and on the other hand they refuse to pay compensation to petitioners. Learned counsel for petitioners to cement his arguments, has placed reliance on judgement dated 25th May 201[SECTION] passed in [CASE NUMBER] titled Mohammad Sultan Dar & ors v. [ENTITY] & ors and judgements rendered in [PRECEDENT]; andUnion [PRECEDENT].
10. Learned counsel for respondents in support of their submissions have relied upon decisions rendered in [PRECEDENT]; [PRECEDENT]; Ramniklal N. Bhutta and another v. State of Maharashtra and others (199[SECTION]) 1 SCC 134; Zahoor Ahmad Shah Watali & ors v. [ENTITY] & ors 2016(1) SLJ 2[SECTION] (HC); and [PRECEDENT].
11. Learned counsel for respondents, while producing a communication bearing F.No.3/18/2011-Trans dated 29th January 2014, has invited attention of this Court thereto. in terms of the said communication, approval has been conveyed by Ministry of Power, Government of India, for construction of 220 KV Transmission System from Alasteng ([PRECEDENT]) to Leh (via Drass, [ENTITY] and Khalsti 220/66 KV substations) and 66 KV interconnection system for Drass, [ENTITY], Khalsti and Leh substations in Jammu and Kashmir by [ENTITY] at an estimated cost of Rs.1[SECTION]88.41 crore with the completion schedule of 42 months from the date of release of first instalment of funds for its implementation including the consultancy fee of 12% of the executed cost. The project cost, as comes forth from the aforesaid communication, would be borne by the Government of India and Government of J&K in the ratio of 95:5. Upon commission of the Transmission System, it will be transferred to the [ENTITY], which will be responsible for carrying out operation and maintenance and other related activities at its own cost as per the terms and conditions of the Memorandum of Understanding to be signed in this regard. In that view of matter, the project in question is of general public importance.
12. I may usefully call 'public interest' will prevail over 'private interest' on the principle of legal maxim "Salus Populi est Suprema lex" mean Regard for "Public Welfare is the highest law". This principle is based on the implied agreement of every member of society that his own individual welfare shall in cases of necessity yield to that of community. His property, liberty and life shall under certain circumstances be placed in jeopardy or even sacrificed for public good. Personal benefit must give way to public interest and public interest cannot be blocked for private interest. In Hira Tikkoo v. Union Territory, Chandigarh and others (2004) 6 SCC [SECTION]65, the Supreme Court explaining the scope of principle of legitimate expectation has held that the doctrine cannot be pressed into service where the public interest is likely to suffer as against the personal interest of a party. The Supreme Court in Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 3[SECTION]0, while referring to construction activity violative of the regulations and control orders, held that the regulations made under [ACT], may meddle with private rights, but still they cannot be termed arbitrary or unreasonable. The private interest would stand subordinate to public good. In the present case as well, even if some individual interests are likely to suffer, such individual or private interests must give in to the larger public interest. It is duty of all citizens to comply with the law. I have no hesitation in holding that the purpose i.e. for expansion of Fruit & Vegetable Market, Pulwama, is a public purpose.
13. Compulsory acquisition of land for a public purpose on payment of compensation is the mode recognised under law. if land is so acquired no grievance can be made of infringement of fundamental rights. In [PRECEDENT], the Supreme Court observed:
"The [ACT] authorises the appropriate Government to notify land for acquisition which is or is likely to be needed for a public purpose and road widening in a town is undoubtedly a public purpose. After considering the report of the Collector under [SECTION] of the [ACT], the Government of Bombay published a notification under [SECTION] of the [ACT] that the lands were needed for a public purpose. That declaration was by virtue of [SECTION] of the Act conclusive evidence that the lands were needed for a public purpose. By the compulsory acquisition for a public purpose, subject to payment of compensation, no fundamental rights guaranteed under [SECTION] and [SECTION] of the [ACT] were infringed. The lands were properly notified for acquisition. The compensation payable in respect of the lands has been determined.
If there is any grievance which the appellants are entitled to raise in respect of the compensation determined as payable, their remedy lies in approaching the courts competent to determine the question."
14. During course of advancement of arguments, learned counsel for petitioners has produced a copy of minutes of private negotiation committee meeting held on 25th May 2016 to fix the rate of land acquisition. During the meeting, it has been observed that demand of the land owner for payment of compensation @ Rs.11.64 lacs could not be considered as the land coming under the acquisition falls under the purview of [CASE NUMBER], whereunder compensation of such land allotted from State land or transferred under [CASE NUMBER] etc. is to be paid at 1/3rd of the fixed rate, therefore, the demand of owenrs could not be accommodated as per provision of [SECTION]. It also mentions that most of the owners agreed to part away the land at the rate of Rs.3.88 Lacs and therefore, the committee decided to pay the compensation of the land at the rate of Rs.3.88 lacs per kanal asa the land is situated contiguous to the village Bagh-i-Khomeni, which is a part of the [ENTITY] Municipal Committee and the area falls in the commercial zone. Copy of the said minutes of meeting is, at request, taken on record. To this learned counsel for respondents have produced minutes of private negotiation held on 10th July 201[SECTION] in the office of Additional [ENTITY], with Zamindars of Bagh-Khomini/ [ENTITY] and Power Grid Corporation of India, which is stated to have been attended by some of the petitioners as well. The said minutes of the meeting has been circulated vide no.DC-K/LAC-PDD/GRID/14-I dated 10th July 201[SECTION]; copy of which is, at request, taken on record. Perusal whereof reveals that to settle dispute once for all, 20 occupants of Bagh-Khomini and [ENTITY] were called in Deputy Commissioner's office on 8th July at 11.00 AM, who were present in the meeting and issue was thoroughly discussed. After the said discussion parties are said to have agreed to assemble once again on 10th July 201[SECTION] to finalise the issue. The minutes of meeting further divulges that as many as nine persons have approached this Court, which is subjudice and to settle the dispute and to continue the work on spot relating to construction of Sub Station [ENTITY] at Kurbathang after thorough discussion with parties, the occupants of land were offered land compensation @ Rs.6.69 Lacs per kanal. Some of the participants appear to have refused to receive the land compensation at the rate negotiated above and demanded higher rate, which is said to be double of the rate decided in the negotiation, which, according to respondents, could not be paid because occupants of land have not get ownership rights on the land and that they are only allottees and are entitled to 1/3rd of the total compensation.
15. It is relevant to mention here that the advantages in completion of mega project outweigh possible disadvantages. The principle that has been ingrained is that if a project is beneficial for 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.
16. It is pertinent to mention here 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 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.
1[SECTION]. The Supreme Court in Ramniklal N. Bhutta and anr v. State of Maharashtra and ors, (199[SECTION]) 1 SCC 134, while cautioning the High Courts in interfering with the land acquisition proceedings, observed and held that "Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with china economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenge the acquisition proceedings in courts. These challenges are generally in shape of writ petitions filed on 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 or grant in stay/injunction. The power under [SECTION] 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 purposes, the interests of justice and the public interest coalesce.
They are very often one and the same. Even in 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-a-vis the private interest while exercising the power under [SECTION] indeed any of their discretionary powers 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."
18. It is not a case where petitioners are deprived of their property in acquisition without following due procedure of law. The land is being acquired after following due procedure and mode of acquisition. So long acquisition is for public purpose, individual rights are to yield to public interest. In every acquisition by its very compulsory nature for public purpose, landowner or landholder may be deprived of the land and livelihood. The State exercises its power to eminent domain for public purpose and acquires the land. So long as the exercise of power is for public purpose, individual's right of an owner must yield place to the larger public interest. Petitioners, in the present case, have even participated in meetings of Private Negotiation Committee. It is ancillary whether petitioners agreed to rates offered by respondents or not, but fact of the matter is that petitioners are well aware of initiation of acquisition proceedings and partook in the meetings for private negotiation for payment of compensation for the land acquired by respondents. Thus, it cannot be heard saying from petitioners that they have no knowledge about the acquisition proceedings. It may not be out of place to mention here that wider public interest is involved and the primary concern for this Court, in view of above discussion, is that compensation with respect to the land acquired by respondents, is to be paid to petitioners at an earliest as has been done by respondents in respect of about 25 similarly situated persons, as stated by learned counsel for petitioners during course of argument, as per prevalent market rates.
19. For the reasons discussed above, writ petition is disposed of with a direction to respondents to make payment of compensation to petitioners for acquiring the land for construction of aforementioned Grid Station, according to the prevailing market rate and/or according to the rate(s) that may be agreed to by them during negotiation with respondents as has been done by respondents in the case of similarly situated persons. The respondents shall do well to undertake and conclude the process of making payment of compensation with respect to the land acquired, in favour of petitioners as also giving them any other benefit as is available under applicable rules, preferably, within four weeks from the date of receipt of copy of this order. Disposed of with connected MP(s).
20. As a corollary Contempt Petition no.445/201[SECTION] is closed.
([ENTITY]) Judge [PRECEDENT] 19th August, 201[SECTION] [ENTITY]