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In Land Acquisition, Public Interest To Be Given Precedence Over Private: Jammu and Kashmir High Court

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This case concerns the dispute relating to the acquisition of land for the construction of the road in the hilly terrain and sloppy areas.

Brief Facts of the Case: 

Respondent No.3, Collector Land Acquisition, Ramban, issued notification dated 23.12.2016 under Sec. 4(1) of the State Land Acquisition Act, SVT 1990 (the Act) notifying the land proposed to be acquired for construction of Hewagon-Dhanmasta road under PMGSY scheme. 

Since the alignment as being the construction of the road was found to cause damage to several residential houses and lands, so, the realignment of the takeoff point of the road got necessitated. This realignment was approved by the government of India upon being recommended by the Government of Jammu and Kashmir, Respondent No.1, after obtaining expert opinion. 

The Petitioners after filing objections under Sec.5-A of the Act since availing an opportunity of being heard provided by the official Respondents felt aggrieved by the notification dated 23.12.2016 and instituted writ petition being OWP No. 1699/2017 out of which the instant appeal has arisen after the said petition was dismissed dated 17.08.2019, impugned in the present appeal. 

Petitioner’s arguments: 

The Petitioners, who are residents of Revenue Village Dhanmasta, Ramban were dependent upon the small landholdings they possess. The land mentioned in the notification was required for a public purpose. 

The Respondents brought the issue of exploring alternate takeoff point of the road, to the knowledge of the concerned authorities. However, the authorities instead of permitting the alternate takeoff point permitted to change the alignment. When an RTI was filed to seek certain information, it was informed that the proposal of the road was under process. 

It was further pleaded that the primary object of PMGSY is providing road connectivity to rural areas and access to rural areas to economic and social services. The idea behind rural connectivity is to increase income and lead to productive employment opportunities. The government was trying to deprive the Petitioners of their agricultural and residential land. 

The road from Hewagon-Dhanmasta was already constructed up to almost 1 Km, incurring an expenditure of ₹60 lakhs. The manner of undertaking the construction work in hilly terrain reflected the non-application of mind by the Respondents and misuse of public money. The government should properly take into consideration every aspect before the construction of buildings, roads, or developing any area. Especially, in the case of roads in hilly terrain, frequently we hear of accidents, thus decisions should be taken in haste. 

The Respondents in the past also changed the alignment, whether any sanction was granted by the competent authority for the change of alignment at that stage or the Respondents changed the alignment on their own is required to be confirmed from the Respondents. 

The issuance of notification under Sec. 4(1) of the Land Acquisition Act was mala fide. The intention of Respondents was a change in takeoff point, the authority permitted only change of event. Notification under Section 4(1) would reflect that areas that had been sought do not fall between Hewogan and Dhanmasta until the new takeoff point is taken and it has not been authorized by the competent authority. 

Few Influential people belonging to village Dhanmasta were keen to get the road constructed till their houses. Thus, the claim that the construction of the road was for the public purpose was not true. The Respondents were not allowed to construct road beyond their house. The pick and choose method had been adopted by the Respondents and persons with vested interests, showing that they are hell-bent upon dispossessing the Petitioners of their land and uprooting them. 

The petition No. 844/2014 was earlier filed and the Court had directed the Respondents not to interfere in the peaceful possession of the Petitioners without following due course of law and remove all the machinery brought on the said land for construction of the road. 

The Respondents were not transparent in their dealings and it seems that these tactics were adopted for coercing the Petitioners to give up their rights in their properties to give up their rights. 

Respondent’s arguments: 

The sanctioned road constructed from the initial takeoff point, would have affected more than 100 families due to the construction, necessitating a change of alignment of takeoff point and after the change of alignment, the Petitioner would not get affected in any way. 

In response to the objections filed by the Petitioner, they were provided with an opportunity of being heard and a detailed report was submitted by Respondent No.3 to the Government of Jammu and Kashmir, replying to their objections. 

The approval to the change of alignment of the road came to be accorded by the Government of Jammu and Kashmir on 08.10.2016 and the notifications under Sec. 9 and 9-A was properly circulated. 

The Government of India approved the change of alignment and the further proceedings after the issuance of notification under Sec. 4(1) were as per the provisions of the Act and only after a proper hearing to the Petitioner under Sec. 5-A of the Act. 

The private Respondents (4-38) had contended that the revenue village Dhanmasta, being hilly terrain and sloppy had no road connectivity and due to non-availability of the road the residents of the area have been suffering. 

The road had been sanctioned in the year 2006 and was seriously objected to by residents of 3 villages i.e., Hewagon, Inyar, and Sirlan regarding the alignment. The said objections were found genuine by the officials and the possibility of an alternate takeoff point were explored and finally, approval was granted by the Government of India, upon receiving recommendations from the Government of Jammu and Kashmir. 

The road from habitation Khudmulla up to destination i.e. Dhanmasta had already been constructed and Crores of rupees spent and only the road from new takeoff point up to Khudmulla approx. 3 kilometres was yet to be started. This road is benefited 10,000 souls of the area. 

Observation of the Court:

The Court observed that wherever there is a conflict of interest between the private interest and public interest, the latter must prevail. The Apex Court held the same in the case of Ramniklal N. Bhutta and another vs. State of Maharashtra and others (1997) and various other judgments. 

All the objections raised by the Petitioners were duly considered by the official Respondents whether it concerns the sufferings to the Petitioners, objections made by the Petitioners, or the feasibility of change of alignment of takeoff point. The decision was taken accordingly. 

Further, neither any prejudice to the Petitioners can be reasonably inferred qua the acquisition proceedings. This, in the view of observation of the Apex Court in the case of Pratibha Nema vs. State of MP (2003), striking down the notification under Sec. 4(1) of the Act in the facts and circumstances of the case would be unjust and inappropriate. 

The view of the constitutional Courts in the matter of land acquisitions has been that the viability in the process of acquisition does not fall within the domain of Courts unless its ex facie is found to be contrary to law. As in the Apex Court judgment of State of UP and Ors. vs. Johri Mal (2004). 

Further, it had been less than ten members of writ Petitioners who felt aggrieved, when most of the other landowners seemingly did not challenge the said acquisition. In such a situation, striking a lethal blow to entire proceedings had been not advisable by the Apex Court. 

The Decision of the Court: 

The Judgement under challenge did not call for any interference and the instant appeal as such failed. 

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