Not open to the Court to deeply analyze merits of the prosecution case in Anticipatory Bail plea holds HC

02/01/2021

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
WP(C) No. 1469/2020(O&M)
(Through Video Conferencing)
Decided on: 28.12.2020
Chaman Kumar and others …Petitioner(s)
Through:-M/s O.P. Thakur and R.K.S. Thakur, Advocates
v/s
Union Territory of J&K and others ….Respondent(s)
Through:-
Coram: HON’BLE THE CHIEF JUSTICE (ACTING)
ORDER
1. The petitioners have approached this Court praying for quashing of notification dated 30.04.2016 issued under section 4(1) of the J&K Land Acquisition Act, Svt. 1990, (for short, „the Act.), the notification dated 27.01.2017 issued u/s 6(1) thereof and also award dated 10.07.2017 passed by the Land Acquisition Collector. The prayer has also been made for setting aside of notices dated 07.02.2020 and 18.02.2020, vide which the petitioners have been directed to remove the shops/structures owned and possessed by them, which have allegedly been acquired.
2. The learned counsels for the petitioners submitted that they are owners in possession of land measuring 03 kanals and 08 marlas, forming part of Khasra no. 134 (min) situated in Village Jhajjar Kotli, where they have constructed their shop/structure. Vide notification dated 30.04.2016, issued u/s 4(1) of the Act, the respondents sought to acquire 33 kanals and 14 marlas of land for the purpose of parking of trucks adjoining to National Highway (Jammu-Srinagar). It was followed by notification dated 27.01.2017 issued u/s 6(1) of the Act. Thereafter, the award was announced by the Collector on 10.07.2017.
3. The challenge to the acquisition is sought to be made on the ground that the space required for parking of trucks cannot be said to be a public purpose for which the land can be and should be acquired. In the case in hand, there was non-compliance of the provisions of sections 4 & 6 of the Act regarding publication of notifications in the newspapers. In fact, the petitioners never came to know about the acquisition in question, hence, could not raise any objections. They came to know about the process of acquisition only when they received the notices in February 2020, regarding removal of the super structure existing on the acquired land.
4. It was further argued that for acquisition of land for a company, the provisions as contained in Part-VII of the Act were required to be followed but in the case in hand, there is no such compliance. It was further submitted that the place where parking for trucks is required to be constructed, there already exists a six lane road. One lane thereof can always be used for the purpose of parking of trucks instead of depriving the petitioners of their valuable land. It is further argued that when award was announced by the collector, compensation for the super structure existing on the acquired land was not assessed. In support of his pleas, reliance was placed upon judgments of Hon’ble the Supreme Court in State of Gujarat and another v. Patel Chaturbhai Narsinbhai and others reported as AIR 1975 SC 629; and Valjibhai Muljibhai Soneji and another v. State of Bombayreported asAIR 1963 SC 1890.
5. Heard learned counsel for the petitioners and perused the paper book.
6. The facts which are not in dispute in the present case are that notification was issued u/s 4(1) of the Act, on 30.04.2016 specifying that 33 kanals and 04 marls of land was required for public purpose, namely for providing way side amenity (trucks parking) adjoining to four lane National Highway in village Jhajjar Kotli, Tehsil Dansal, District Jammu. The acquisition was sought to be made on the basis of indent made by National Highways Authority of India. It is the pleaded case of the petitioner that the aforesaid notification was published in three newspapers i.e. State Times, Jammu Jotting and News Now.All stated to be in English language. The aforesaid notification was followed by a notification u/s 6(1) of the Act issued on 27.01.2017. Thereafter, award was announced by the Land Acquisition Collector on 10.07.2017. It has been noticed in the award that none of the land owners/interested persons filed any objections. Compensation was assessed @ Rs. 6.05 lakhs per kanal, as the acquired land is located on the Jammu-Udhampur Highway. Separate assessment of compensation on account of super structures existing on the acquired land was also made, wherever the same may have existed. Notices was directed to be issued to the land owners/interested persons in terms of section 12(2) of the Act.
7. The writ petition has been filed by Chaman Kumar and Satish Kumar sons of late Sh. Bodh Raj and Yog Raj, Ganesh Dass and Jugal Kumar sons of late Sh. Dharam Chand. The land owned by the petitioners, which is part of acquisition is 03 kanals and 08 marlas. Total acquired land is 33 Kanals and 14 Marlas.
8. Issue as to what is a public purpose, had been subject matter of consideration before the courts number of times. Hon.ble the Supreme Court in Nand Kishore Gupta and others vs. State of U.P. and others, reported as AIR 2010 SC 3654 was seized of a matter where one of the challenge to the acquisition proceedings for Yamuna Expressway Project was that the acquisition would come under Part-VII of the Land Acquisition Act, 1894 (for short „the 1894 Act.). While dealing with the said issue, Hon.ble the Supreme Court opined that when ownership of the land acquired for the project in question does not vest with the company and while conceiving the project, the concept of public purpose is kept at the back of mind, then in that case, the acquisition cannot be held to be for a company and compliance of Part-VII of the 1894 Act would not necessitated. Relevant paras are reproduced as hereunder:
“29……………….It is also to be seen that this was not a case where the exercise of power of eminent domain by the State was for any of the purposes set down in Section 40 of the Act. Further, it is not as if the power of acquisition was exercised by the State Government for the work or Project of the Company. Lastly, it is not a case where the power of exercise was exercised by the State Government so that the acquired land was to belong or vest permanently in the Company for its own purpose. It was pointed out that the lease is going to be for 90 years after which the whole land is going to revert back to the State Government, so also the whole land acquired and used actually for the purpose of the highway would also go back to the State after the period of 36 years, during which the Company would have the right to levy and collect the toll. It is not as if a public purpose is relevant in Part VII, where under Section 39, the previous consent of appropriate Government is required for execution of an agreement between the Government and the Company. Section 40 of the Act then puts a specific rider that the State Government shall not give the consent unless it is satisfied of any of the contingencies described in sub-Sections (a), (aa) and (b) thereof, which are as under:-
40. Previous enquiry:- (1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under Section 5A, Sub-section (2), or by an enquiry held as hereinafter provided,-
(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or (aa) that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or
(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public.
This would suggest that even when the acquisition is meant for the Company, the concept of public purpose has to be at the back of mind of the acquiring body like Government. Here, of course, there is no question of any agreement with the Company as the three eventualities described under Section 40 of the Act are not available for the simple reason that the basic idea for the acquisition under Part VII of the Act is the total transfer of the ownership of the acquiring land in favour of the Company. That is obviously not present here. We do not see any factual background for holding that any agreement was contemplated in between the State Government and the Company or for that matter, YEIDA and the Company, as envisaged in Sections 39, 40 and 41 of the Act. It was tried to be canvassed before us that there would be a difference in concepts of a public purpose and the work useful to the public. We are not much impressed by this argument in view of the fact that there is absolutely no evidence to suggest that this is an acquisition for the Company, basically on account of the fact that the acquired land is not to vest with the Company. This was clearly a Project conceived and justified by the State Government, while the concessionaire was to be chosen only to implement the Project. The Project was going to be implemented on the basis of principles of BOT. Therefore, after the operating period is over, the assets of the Project were to be transferred to the State Government. There was going to be no vesting of land as in case that if the acquisition was being effected under Part VII of the Act. We, therefore, do not accept the argument that this was either a colourable exercise of power or was meant for the Company. We are not impressed by the argument that this was an acquisition for the Company.
x x x x
31. We must, at this stage, take into account the argument that the whole compensation is coming wholly from the Company and not from the Government or from YEIDA. The appellants invited our attention to Clause 4.1(d) of the Concession Agreement. On that basis, it was argued that the Company has paid the compensation cost and, therefore, the acquisition is clearly covered under Part VII of the Act, and there may be no public purpose if the acquisition is made for the Company and it is the Company who has to shell out the whole compensation. Now, this argument is clearly incorrect. Even if we accept for the sake of argument that all this compensation is coming from the Company, we must firstly bear it in mind that the Company gets no proprietary or ownership rights over the Project assets. Now, if it is presumed that the compensation is coming from the Company, then it will have to be held that the whole assets would go to the Company. At least that is envisaged in Part VII of the Act. Here, that is not the case.The assets are to revert back to the acquiring body or, as the case may be, the Government………….”
9. Hon’ble the Supreme Court while further adjudicating upon the said issue deliberated upon the distinction between acquisition for public and private purpose, the same have been discussed in paras 33 and 34 of Nand Kishore Gupta’s case (supra), wherein the Hon.ble Court referred to the observations made in earlier judgments in State of Karnataka & Ors. v. All India Manufacturers Organisation & Ors. (AIR 2006 SC 1846) andSooraram Pratap Reddy & Ors. v. District Collector, Ranga Reddy District & Ors. etc. [(2008)9 SCC 552] with regard to the concept of allied purpose viz. infrastructural projects. For the sake of reference, aforesaid paras are reproduced hereunder:
“33. The first judgment in State of Karnataka & Ors. v. All India Manufacturers Organisation & Ors. (AIR 2006 SC 1846) pertain to Bangalore-Mysore Infrastructure Corridor Project. While considering what the public purpose was, this Court in paragraphs 76, 77, 78 and 79 took stock of the contention, whereby it was suggested that land far away from the actual alignment of the road and periphery had been acquired and, therefore, even if the implementation of the highway Project was assumed to be for the public purpose, the acquisition of the land far away therefrom would not amount to a public purpose nor would it be covered by the provisions of the Karnataka Industrial Areas Development Act, 1966 (KIAD Act). In the present case also, it was argued that the lands which are being acquired for the interchange would not at all be necessary. Further, it was argued that the five parcels of land which is being acquired for the development of five industrial townships, could not be said for the public purpose nor could it be said to be a part of the present integrated scheme. This Court had refuted this argument holding that even in case of Bangalore-Mysore highway Project, the lands even little away from the main alignment of the road, had to be a part of this Project and the Project was an integrated infrastructure development Project and not merely a highway Project. It was conceived originally as the Bangalore-Mysore Infrastructure Corridor Project, which conceived of the development of roads between Bangalore and Mysore, for which there were several interchanges in and around the periphery of the city of Bangalore, together with numerous developmental infrastructure activities alongwith the highway at several points. The situation is no different in the present case. Therefore, the contention that this acquisition was not for public purpose, is rejected.
34. In Sooraram Pratap Reddy & Ors. v. District Collector, Ranga Reddy District & Ors. etc. etc. (cited supra), same question cropped up which has been mentioned in Paragraphs 9, 10 and 11 of the judgment suggesting that there was no public purpose and in fact, it was an acquisition for a private Company under Part VII of the Act and, therefore, the power of eminent domain would have no application to such case. The contentions raised in that judgment in paragraphs 16, 17 and 18 are almost similar to the contentions raised herein. The Court has extensively dealt with the question of public purpose in paragraph 66 and has taken stock of practically all the cases till paragraph 109 therein. It will not be necessary for us to repeat all the case law and the questions raised and considered in these paragraphs, such as industrial policy of the State, acquisition for Company etc. In fact, while considering the contention regarding the industrial policy of the State, the Court has taken into consideration the oft-quoted case of Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal & Ors. [2007 (8) SCC 418], where this Court has come to the conclusion that in the absence of illegality or violation of law, a Court of law will not interfere in the policy matters. Similar is the case here, where the development of the industrial infrastructure along the Expressway for the overall betterment of the region and further for the industrialization of the otherwise backward region of Uttar Pradesh, was considered as a policy. In this judgment again, the Court has extensively considered the question as to whether and under what circumstances, the acquisition could be said to be the acquisition for the Company. In that, the Court has also considered the decision in BabuBarkya Thakur v. State of Bombay [AIR 1960 SC 1203]. The Court quoted the observations in the aforementioned decision in Babu Barkya Thakur v. State of Bombay (cited supra) to the following effect:



"These requirements indicate that the acquisition for a Company also is in substance for a public purpose inasmuch as it cannot be seriously contended that constructing dwelling houses, and providing amenities for the benefit of the workmen employed by it and construction of some work of public utility do not serve a public purpose."
We have already considered this question that in the present case, there is nothing to indicate that the acquisition is for the Company i.e. for Jaiprakash Industries Ltd. It is only, therefore, that we are at pains to point out that the Government was only using the Company for implementing its policy.”
A perusal of the aforesaid observations made by Hon’ble the Supreme Court makes it amply clear that the acquisition for the allied purpose viz. infrastructural projects, is a public purpose.
10. Further in context to the contention raised by the petitioner that they had no notice of the acquisition proceedings being carried, reference is made to judgment of Hon.ble the Supreme Court in Special Deputy Collector, Land Acquisition C.M.D.A vs. J. Sivaprakasam and others; (2011)1 SCC 330, wherein Hon.ble the Supreme Court while deliberating upon the intent of the legislature for enacting Section 4 (1) in the Act, has opined as follows:
“19. We have held that the object and purpose of the amended section 4(1) of the Act isto provide for publication of the preliminary notification in two daily newspapers havingreasonably wide circulation in the locality so that people (persons interested) in thatlocality may become aware of the proposals for acquisition. We have also held thatpublications in two newspapers having regular and steady circulation, but having amarket share of only 2% to 3% of the total newspapers cannot invalidate the acquisitionproceedings automatically, on the ground that such publication violates the requirementof section 4(1) relating to newspaper publication. As the said two findings are slightlycontradictory, it is necessary to harmonise the consequences.
20. This leads us next to the consequences of publication of the notification in twonewspapers having reasonably wide circulation and consequences of bona fide publicationof the notification in two newspapers which do not have a wide circulation in the locality.
20.1) If there is failure to publish in two daily newspapers or if the publicationis in twonewspapers that have no circulation at all in the locality, without anything more, thenotification under section 4(1) of the Act and the consequential acquisition proceedingswill be vitiated, on the ground of non-compliance with an essential condition of section 4(1) of the Act.
20.2) If the two newspapers carrying the publication of the notification have reasonablywide circulation in the locality, (apart from the publication of the notification in theGazette and causing public notice of the substance of the notification to be given atconvenient places in the locality), then the requirements of section 4(1) are compliedwith and all persons concerned in the locality shall be deemed to have notice of thenotification. (For this purpose, the publication need not be in newspapers having thewidest or largest circulation, but it is sufficient if the publication is in newspapers havingreasonably wide circulation). In that event, neither the notification under section 4(1),nor the consequential acquisition proceedings would be open to challenge, on the groundof violation of Section 4of the Act.
20.3) If the newspapers in which the notification is published were circulating in thelocality, but did not have a reasonably wide circulation in the locality, then neither thenotification under section 4(1) nor the consequential acquisition proceedings, will becomevitiated automatically. If the person aggrieved, apart from demonstrating that the twonewspapers did not have reasonably wide circulation in the locality, also asserts that as aconsequence, he did not have notice of the proposed acquisition that was provided for inSection 4(1) of the Act, in the absence of evidence to the contrary, the acquisition to theextent of the land of such person will be vitiated. But if such assertion is rebutted by theacquiring authority by placing evidence to show that the person concerned had in factnotice (as for example where he participated in the enquiry under section 5Aof the Act),the acquisition will not be vitiated on the ground of violation of section 4A of the Act.
20.4) If the person challenging the acquisition is able to establish that the notificationswere deliberately and with mala fides, published in newspapers having negligiblecirculation, to avoid notice to the persons concerned, then section 4(1) will be violated.
21. The acquiring authority need not prove actual notice of the proposal to acquire undersection 4(1) of the Act, to the person challenging the acquisition. As the purpose ofpublication of public notice provided in section 4(1) of the Act is to give notice of theproposal of acquisition to the persons concerned, such notice can also be by way ofimplied notice or constructive notice. For this purpose, we may refer to the differencebetween actual, implied and constructive notices.
21.1) When notice is directly served upon a party in a formal manner or when it isreceived personally by him, there is actual notice.
21.2) If from the facts it can be inferred that a party knew about the subject matter ofthe notice, knowledge is imputed by implied notice. For example, if the purpose of thenotice is to require a party to appear before an authority on a particular date, eventhough such a notice is not personally served on him, if the person appears before theauthority on that date or participates in the subsequent proceedings, then the person canbe said to have implied notice.
21.3) Notice arising by presumption of law from the existence of certain specified factsand circumstances is constructive or deemed notice. For example, any person purchasingor obtaining a transfer of an immovable property is deemed to have notice of alltransactions relating to such property effected by registered instruments till the date ofhis acquisition. Or, where the statute provides for publication of the notification relatingto a proposed acquisition of lands in the Gazette and newspapers and by causing publicnotice of the substance of the notification at convenient places in the locality, but doesnot provide for actual direct notice, then such provision provides for constructive notice;and on fulfillment of those requirements, all persons interested in the lands proposed foracquisition are deemed to have notice of the proposal regarding acquisition.”
From the perusal of the aforesaid enunciation of law by Hon.ble the Supreme Court it transpires that the intent of issuance of notification under section 4 is to make the people aware about the intention of the Government to acquire the land. Such a notice can either be actual, implied or constructive.From the facts and circumstances, inference of implied or constructive notice can be drawn, hence, the purpose of section 4 is fulfilled. In the case in hand, the petitioners own only 03 kanals and 08 marlas of land out of the total acquired land measuring33 kanals and 14 marlas. None other has raised any objection. Project for four laning of highway is in progress and every knows about process of acquisition being made, as even survey for identifying land for acquisition starts much prior to actual acquisition.
11. Therefore, in the facts and circumstances of the present case and while keeping in mind the principles laid down by Hon.ble the Supreme Court in J. Sivaprakasam’s case (supra), conclusion with regard to implied as well as constructive notice can very well be drawn.
12. As a matter of fact, the acquisition is with regard to development of infrastructure along the Jammu-Srinagar National Highway, which undisputedly is a project of national importance, strategically and otherwise. Even if the argument of Learned Counsel for the petitioners that the notifications were not published in absolute conformity with the provisions of the Act are considered, the same cannot be held to be tenable in view of the judgments of Hon.ble the Supreme Court in Ramniklal N. Bhutta and another vs. State of Maharashtra and others; AIR 1997 SC 1236; and Jaipur Metro Rail Corporation Limited vs. Alok Kotalwala and others, AIR 2013 SC 754, wherein the Court has opined that such projects should not be halted as the same would be against the larger public interest and the constitutional courts should weigh public interest vis-à-vis private interest while exercising its discretion, even if minor discrepancies in following the procedure is observed.Relevant extracts from the judgments of Hon.ble the Supreme Court referred (supra) are reproduced hereunder:
i) Ramniklal N. Bhutta’s case:
“10. Before parting with this case, we think it necessary to make a few observationsrelevant to land acquisition proceedings. Our country is now launched upon an ambitiousprogramme of all round economic advancement to make our economy competitive in theworld market. We are anxious to attract foreign direct investment to the maximumextent. We propose to compete with China economically. We wish to attain the pace ofprogress 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 theinfrastructure necessary for sustaining such a pace of progress is woefully lacking in ourcountry. The means of transportation, power and communications are in dire need ofsubstantial improvement, expansion and modernisation. These things very often call foracquisition of land and that too without any delay. It is, however, natural that in most ofthese cases, the persons affected challenge the acquisition proceedings in Courts. Thesechallenges are generally in the shape of writ petitions filed in High Courts. Invariably,stay of acquisition is asked for and in some cases, orders by way of stay or injunction arealso made. Whatever may have been the practices in the past, a time has come wherethe Courts should keep the larger public interest in mind while exercising their power ofgranting stay/injunction. The power under Article 226 is discretionary. It will be exercisedonly in furtherance of interests of justice and not merely on the making out of a legalpoint. And in the matter of land acquisition for public purposes, the interests of justiceand the public interest coalesce. They are very often one and the same. Even in a CivilSuit, granting of injunction or other similar orders, more particularly of an interlocutorynature, is equally discretionary. The courts have to weigh the public interest vis-a-vis theprivate interest while exercising the power under Article 226 - indeed any of theirdiscretionary powers. It may even by open to the High Court to direct, in case it findsfinally that the acquisition was vitiated on account of non-compliance with some legalrequirement that the persons interested shall also be entitled to a particular amount ofdamages to be awarded as a lump sum or calculated at a certain percentage ofcompensation payable. There are many ways of affording appropriate relief andredressing a wrong; quashing the acquisition proceeding is not the only mode of redress.To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it isneither possible nor advisable to say. We hope and trust that these considerations will beduly borne in mind by the Courts while dealing with challenges to acquisitionproceedings.”
ii) Jaipur Metro Rail Corporation Limited’s case:
“31. With respect to ecological balance, there has to be sustainable development and suchprojects of immense public importance cannot he halted. It is not the case that requisitepermissions from the Central Government and the State Government have not beenobtained, thus, objections were flimsy. In other petitions also pertaining to the sameProject, this Court has held that such project of immense public importance should not beput to halt. Thus, flimsy and untenable objections were raised, which have been rightlyrejected after due application of mind.
x x x x
48. On merits, we find the order of interim stay passed by the single Bench tobeuntenable, thus, we have no hesitation in setting aside the same. Suffice it to observethat in such cases of public importance of Metro Rail Project, there should not be anyinterim stay, rather an effort should be made to decide the matter finally at an earlydate. Staying the land acquisition proceedings is not appropriate and would be againstthe larger public interest involved in such projects. Thus, relying upon the decision in thecase of Ramniklal N. Bhutta, (AIR 1997 SC 1236) (supra), we hold that in the matter ofimmense public importance like the present one, the power to grant interim stay underArticle 226 of the Constitution should not be exercised in the normal course.”
12. In the conspectus of what has been observed herein above, it is unambiguously clear that the land in question has been acquired and is essential to fulfil the public purpose namely the development of infrastructure along the Jammu Kashmir National Highway. The project assumes significance as it is essential for the overall infrastructural development purpose and the judgments referred herein above leave no scope of doubt that the acquisition for the allied purposes is also covered under the definition of „Public purpose.. The concept of public purpose cannot remain static for all the times. While interpreting the same, the horizons of the definition needs to be expanded and a broad and overall view has to be taken so as to ensure maximum benefit to public at large. The scope of the same cannot be narrowed down by inclining towards the individual interest only as the same has to give way to the larger public interest. The procedural irregularities as has been pointed out by the petitioners, in the absence of any mala fide being pointed out, certainly needs to be overlooked and are insufficient to convince this Court to stall the infrastructural development process. The scope of judicial review in such like cases, is limited and in land acquisition cases, the Court must focus its attention on the social and economic justice as well. While examining these questions of public importance, the Courts, especially the Higher Courts, cannot afford to act as mere umpires. The reference in this regard can be made to the principle laid down by the Hon.ble Apex Court in Authorised Officer, Thanjavur and another v. S. Naganatha Ayyar and others, reported as(1979)3 SCC 466.
13. Supplementing the view taken supra, reference to the observations of the Apex Court in Pratibha Nema and ors. Vs. State of M.P. and ors. reported asAIR 2003 SC 3140,reproduced hereunder, would be relevant.
“When no prejudice has been demonstrated nor could be reasonably inferred, it would be unjust and inappropriate to strike down the Notification under Section 4(1) on the basis of a nebulous plea, in exercise of writ jurisdiction under Article 226. Even assuming that there is some ambiguity in particularizing the public purpose and the possibility of doubt cannot be ruled out, the constitutional courts in exercise of jurisdiction under Article 226 or 136 should not, as a matter of course, deal a lethal blow to the entire proceedings based on the theoretical or hypothetical grievance of the petitioner. It would be sound exercise of discretion to intervene when a real and substantial grievance is made out, the non-redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose, especially, in a matter like this where it is possible to take two views, is not something which affects the jurisdiction and it would, therefore, be proper to bear in mind the considerations of prejudice and injustice.”
14. If seen in the light of enunciation of Law as referred to above, the petitioners have not been able to make out a case for interference by this Court as large public interest has to be given preference over the private interest in the matter of acquisition of land for development of infrastructural projects.
15. The writ petition is accordingly dismissed.
JAMMU (RAJESH BINDAL)
28.12.2020 CHIEF JUSTICE (ACTING)
SUNIL-I

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