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Jagdish Rai Vs. the States of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 3020 of 1973
Judge
Reported inAIR1982P& H342
ActsLand Acquisition Act, 1894 - Sections 4, 6, 16 and 50; Punjab Municipal Act, 1911 - Sections 5-A, 6, 52 and 58; Haryana Municipal Act, 1973 - Sections 57; Provincial Municipal Corporation Act, 1949
AppellantJagdish Rai
RespondentThe States of Haryana and ors.
Cases ReferredIn Kanaiyalal Maneklal v. State of Gujarat
Excerpt:
.....is satisfied that the land specified below is needed by the government at public expense, for a public purpose, namely for the construction of shopping centre and public park at bahadurgarh, tehsil jhajjar, district rohtak for which notification no. 4 of the act has to carry those statutory expressions so that the government's intention for the purposes of the company becomes distinctly manifest. the expression 'public service' has by now been well understood not only in legal annals but by public at large. the acquisition for the purposes of punjab municipal act would in any event be statutory purposes and would collate with 'public purposes' as well. 4 of the act reproduced above is by now well known. the answer clearly is no. this very distinction, as it appears to me, has to be..........centre as also a public park. notifications issued by the state government under s. 4 of the land acquisition act and its declaration under s. 6 for the purpose are the subject matter of challenge in these petitions. besides, the aforesaid two petitions there is one other being c. w. p. no. 3130 of 1973 preferred by rizk ram and others through shri kartar singh kwatra, advocate, who is no more. the petitioners in that petition are not yet represented by any counsel. since the points raised herein are common to all the three petitions, reference to the same has become necessary, as all the three petitions have been listed together.2. for facility of disposal facts from c. w. p. no. 3020 of 1973 be taken note of. the petitioner therein claimed to be in possession of land situated.....
Judgment:
ORDER

1. These are two petitions being C. W. P. Nos. 3020 and 3021 of 1973 preferred by two property owners, who both are now dead and represented by legal representatives, challenging acquisition of their land situated in Bahadurgarh, District Rothak. An effort had been made by the State of Haryana in conjunction with the Municipal Committee, Bahadurgarh, to acquire the land of the petitioners for the purposes of constructing a shopping centre as also a public park. Notifications issued by the State Government under S. 4 of the Land Acquisition Act and its declaration under S. 6 for the purpose are the subject matter of challenge in these petitions. Besides, the aforesaid two petitions there is one other being C. W. P. No. 3130 of 1973 preferred by Rizk Ram and others through Shri Kartar Singh Kwatra, Advocate, who is no more. The petitioners in that petition are not yet represented by any counsel. Since the points raised herein are common to all the three petitions, reference to the same has become necessary, as all the three petitions have been listed together.

2. For facility of disposal facts from C. W. P. No. 3020 of 1973 be taken note of. The petitioner therein claimed to be in possession of land situated within the municipality of Bahadurgarh fully detailed in para 1 thereof. He initially obtained the land as vacant from the erstwhile owners but claims to have raised construction thereon at considerable cost and subjected himself to the liability of paying property tax as well. The petitioner claims that alongside his property there was a pond in part of Khasra No. 2214 which the Municipal Committee, Bahadurgarh thought of converting into a park. Though the object was laudable, the Committee out of sheer greed and vindictiveness set up a proposal not only for Khasra No. 2214 including the pond portion thereof but also proposed to acquire the land of the petitioner with view to setting up a shopping centre there. On such movement it is undisputed that the State of Haryana issued notification under S. 4 of the Land Acquisition Act on 14th Dec. 1970, Annexure 'B' to the petition, the relevant portion whereof is reproduced here :

'No.9346-3/CI-70/34215.--Whereas the land specified below is required for the purpose of the Punjab Municipal Act, 1911, namely, for the construction of shopping centre and public park at Bahadurgarh, Tehsil Jhajjar, District Rohtak.

And whereas in pursuance of the provisions of S. 58 of the said Act, the Municipality Bahaduragrh has required the Government of Haryana to acquire the said land under the provisions of the Land Acquisition Act, 1894, on payment by the said Municipality Bahadurgarh of compensation awarded under the Land Acquisition Act, 1894 and of any other charges incurred in acquiring the land as specified below:--

'And whereas it appears to the Government of Haryana that the land as mentioned below is likely to be needed for public purposes, namely, for the construction of shopping centre and public park in Bahadurgarh, District Rohtak, it is hereby notified that the land described in the specification below is likely to be needed for the said public purpose.'

3. The petitioner filed objections under S. 5A of the Act, copy of which is appended as Annexure 'C', taking therein a specific objection that the municipality could not acquire an area for the setting up of a shopping centre as it would be violative of S. 58 of the Punjab Municipal Act. All the same, apprehending his objections would be turned a deaf ear to and in that event a declaration under S. 6 would follow, he searched and came to know that such a declaration under S. 6 of the Act had in fact been published in Government Gazette on 7th Aug. 1973, a copy whereof is Annexure 'D' to the petition. The relevant portion of that declaration is to the following effect:--

'Whereas the Governor of Haryana is satisfied that the land specified below is needed by the Government at public expense, for a public purpose, namely for the construction of Shopping Centre and Public Park at Bahadurgarh, Tehsil Jhajjar, district Rohtak for which notification No. 9346-3CJ-70/34215, dated the 14th Dec. 1970, under S. 4 of the Land Acquisition Act, 1894, has been published, it is hereby declared that the land described in the specification below is needed for the above purpose.

This declaration is made under the provisions of S. 6 of the Land Acquisition Act, 1894, for the information of all to whom it may concern.'

4. Challenging these notifications, the petitioner approached this Court way back in Sept. 1973, and obtained from the Motion Bench stay of his dispossession on 5th Sept. 1973. Presumably he continues to be in possession and the purpose by efflux of time stands frustrated. Keeping that apart, however, the legality of the action, as pointed out by the petitioner, has to be examined.

5. Learned counsel for the petitioner has raised only two points before me in support of the petition; (1) that S. 52 of the Punjab Municipal Act the equivalent of which is S 57 of the Haryana Municipal Act, 1973, does not authorise expending of municipal fund for the construction of a shopping centre though it does authorise the creation of a public park (On the score of providing for a public park, the learned counsel for the petitioner has no challenge to offer) and (2) that the declaration under S. 6 of the Act has patently been made by the Government for acquiring the land for a public purpose at public expense and not for the purpose of the Punjab Municipal Act at the expense of the Municipal fund. Let these contentions be examined in detail.

6. Section 50 of the Land Acquisition Act provides for the acquisition of land at the cost of a local authority of company. Thereunder, where the provisions of the Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority, the charges of or incidental to such acquisition have to be defrayed from or by such fund. Similar is the case with regard to a Company for whom the provisions of the Act are put into force for the purpose of acquiring land for it. In the matter of S. 4 of the said Act, however, there appears to be a distinction with regard to the land being acquired for a company and the local authority. Section 38(2) of the said Act statutorily requires that when an acquisition is being made for a company, suitable words in S. 4 of the Act get automatically substituted so as to serve the purpose. To be precise, for the expression 'for such purpose' the words 'for the purpose of the company' are to be substituted. The mandate of the statute is thus firm that in the case of acquisition of land for the purpose of a company notification under S. 4 of the Act has to carry those statutory expressions so that the Government's intention for the purposes of the company becomes distinctly manifest. But it seems that there is no such requirement for the purpose of acquisition for the local authority and the acquisition can proceed perhaps on the assumption that it is being undertaken by the State of its own. In the same strain Section 6(3) of the Act makes a declaration of intended acquisition to be conclusive evidence that the land is needed for a public purpose or for a company as the case may be. Here again acquisition for the purpose of a local authority nowhere figures in Section 6(3). A comparative reading of the aforesaid provisions leads to the indication that perhaps the acquisition for the purpose of a local authority is in sum and substance an acquisition by the Government but for a local authority. But it needs further probe.

7. At this stage it would be worthwhile to take note of S. 58 of the Punjab Municipal Act which provides for acquisition of land. It is provided therein that when any land, whether within or without the limits of a municipality, is required for the purposes of the Act, the State Government may, at the request of the committee, proceed to acquire it under the provisions of the Land Acquisition Act, 1894, and on payment by the committee of the compensation awarded under that Act, and of any other charges incurred in acquiring the land, the land shall vest in the committee. The purposes of the Punjab Municipal Act are those on which the municipal fund formed by each municipality can be expended and the list is provided in S. 52 of the said Act. Sub-section (2)(c) thereof provides amongst other items, the construction, establishment and maintenance of markets and other works of public utility. It goes without saying that a shopping centre as also a park would within the meaning of the words and expressions 'markets' and other works of 'public utility'. Practically similar are the provision in the succeeding statute, the Haryana Municipal Act, 1973, in which S. 57 is the equivalent of S. 52 and S. 65 is the equivalent of S. 58 of the Punjab Municipal Act. Since it stands provided in so many words in the statute itself the claim based on the first argument does not seem to cut any ice and it would be appropriate to give it a death blow right at this juncture holding that askance by the committee for the acquisition of the land. for constructing a shopping centre and a public park were for the purposes of a Punjab Municipal Act.

8. Now S. 4 of the Land Acquisition Act authorises the appropriate Government to issue a preliminary notification thereunder as a step towards acquisition of land for any public purpose. The expression 'public service' has by now been well understood not only in legal annals but by public at large. The acquisition for the purposes of Punjab Municipal Act would in any event be statutory purposes and would collate with 'public purposes' as well. In a given case, a particular purpose might fall under both the expression and in another there may be some difficulty. The list as contained in sub-section (2) of S. 52 of the said Act in various sub-clauses, however, is a pointer to indicate that all the items enumerated therein for the purposes on which municipal fund can be expended fall squarely as public purposes which are likely to be for the benefit and use of public at large and in any case for a sizable section of the public. The public purpose in the instant case as given in the notification under S. 4 of the Act reproduced above is by now well known. The point is whether notification under S. 6 of the Act has simultaneously to mention that the public purpose is that of the municipality and is being realised by acquisition of land at the expense of the municipal fund. In other words the public purpose must avowedly be fulfilled not by providing funds from the public exchequer but out of municipal funds and this has been pressed into service with great vehemence by the learned counsel for the petitioner since the relevant words are lacking in the notification.

9. On the other hand learned counsel for the State as also the municipality have pointed out that the acquisition under the Land Acquisition Act is in every case by the Government be it an acquisition by it for its own, or for a company, or a local authority. Reference was invited to S. 16 of the said Act to contend that when the Collector has made an award under S. 11, he may take possession of the land which may thereupon vest in the State Government free from all encumbrances. The said section was pressed into service to contend that initially it is the Government in whom the land acquired vests and then it revests in the company or in the local authority on payment made by it as the case may be. On the question of terminology employed with regard to the public purpose as given in S. 6 notification it was contended that non-legal terminology was immaterial if the public purpose can be ascertained for which it was acquired. Reliance was placed on Gulam Mustafa v. State of Maharashtra (1976) 1 SCC 800 : (AIR 1977 SC 448). There can be no quarrel with this proposition. User of wrong words, when otherwise the intention is clear is immaterial. But here the problem is of the absence of terminology and not of wrong user thereof.

10. In Kanaiyalal Maneklal v. State of Gujarat, AIR 1970 SC 1188, the Supreme Court had the occasion to deal with a notification under Section 4 of the Land Acquisition Act issued at the instance of Ahmedabad Municipal Corporation wherein there was no reference to any purpose of the said Corporation but the notification proceeded as if the land was being acquired by the State Government. The objection taken was that it was needed for raising a memorial of Mahatma Gandhi at a place which had some association with him and not a public purpose as defined in the Provincial Municipal Corporation Act, 1949. The Supreme Court while answering that contention took the view that the purpose of acquisition was one which fell within the normal connotation of the expression 'public purpose' as used in S. 4 of the Land Acquisition Act and it was unnecessary to rely upon the extended meaning of the expression 'public purpose' as provided by S. 78(1) of the Provincial Municipal Corporations Act, 1949. The Court also held that since the land was being acquired for the public purpose as held by it no further inquiry need be made, whether if the municipal funds were to be utilised for setting up a memorial of Mahatma Gandhi after the land is vested in the State after acquisition, or would the Municipality be acting within the limits of its authority.

11. Neither counsel has been able to produce any precedent for and against the proposition whether a declaration under S. 6 of the Act must contain the recital that the acquisition was for the purposes of the municipality. After giving my careful thought to the point raised I have been veered round to the view that in such a declaration provision of the requisite statement would be essential. To sustain the view I have drawn light from the language of the 2nd proviso to S. 6(1) and of S. 6(3) which I have touched to some extent in an earlier part of the judgment while assuming that acquisition for the purposes of the local authority would perhaps be an acquisition for the State Government. But is it an acquisition for the State Government? The answer clearly is no. The acquisition began on a projected statutory purpose, a public purpose which was pre-judged by the municipality alone as it was the sole judge on that aspect. The fact that the municipality before expending towards it was required to obtain the sanction of the Government under S. 52(2) would not after the situation. It is for that reason that the Government took care while notifying under S. 4 of the Land Acquisition Act that the action was to acquire the land for the purposes stated therein for the Punjab Municipal Act at the askance of the municipality as required by law. The objections to be invited under S. 5A of the said Act had also to confine to the limited domain of contending that the above purpose was not one under the Punjab Municipal Act or that the land sought to be acquired was not suited for the purposes. The decision of the Government thereon also again is pre-emptory inasmuch as it has to balance the needs of the municipality vis-a-vis the purpose of the Act on one side and the objection on the other. And lastly while issuing declaration under S. 6 of the Act the Government has, as it seems to me, necessarily to declare therein that the payment towards fulfilment of it would be expended from the municipal fund for the purposes of the Punjab Municipal Act. The 2nd proviso to S. 6(1) provides that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Thus the source from which the cost is to be borne has ex facie to be mentioned in the declaration. As is plain from the second notification Annexure 'D' the land on the contrary was being acquired by the Government for a public purpose at public expense. But one can have no objection to the public purpose named therein as the construction of the shopping centre and public park at Bahadurgarh. All the same the notification is clear and can be spelled out to mean that it is the Government who has usurped the process of the acquisition and wants to construct the said structures, or lay out such park at the expense of the Government to be borne by the State exchequer. This very distinction, as it appears to me, has to be borne in mind to avoid ambiguity while carrying the process further in such like cases after notification under Section 4 of the said Act. There is no question of any vacillation on the point and the doubt, if any, creeping in must lead to such notification being held vague, indefinite, or foundationless and likely to be quashed on that score. Now plainly, notification Annexure 'D', the declaration under S. 6, is deficient of the relevant particulars. And since it is now being contended that the Government was acquiring land for the municipality which had asked for the acquisition, the notification being conclusive evidence as envisaged under S. 6(3) of the Act says of the contrary and at least indicates so. It is in deviation from what was sought to be done under S. 4 of the Act, which course is impermissible.

12. No other point has been urged.

13. For the view I have taken, these two writ petitions 3020 and 3021 of 1973 deserve acceptance by quashing the declaration under S. 6 of the Act, Annexure 'D' alone. And if that is so, Section 4 notification Annexure 'B' too has to be annulled in the same strain as no fresh declaration under S. 6 can be issued now by the State Government as a period of three years has expired thereafter. Accordingly, both the notifications, though one primarily and other sequelly, have to be quashed.

14. Though neither counsel nor party is present in C. W. P. No. 3130 of 1973 but since it has to be abided by the result of the connected two writ petitions, I shall grant relief to the petitioner in absentia, Accordingly, all these three writ petitions are allowed but with no order as to costs.

15. Petitions allowed.


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