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Gopi and ors. Vs. Himachal Pradesh Government and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 19 of 1964
Judge
Reported inAIR1966HP8
ActsLand Acquisition Act, 1894 - Sections 3(1), 4, 5A, 5A(1), 5A(2), 6, 6(1) and 6(3)
AppellantGopi and ors.
RespondentHimachal Pradesh Government and ors.
Appellant Advocate Jaswant Singh and; K.S. Patyal, Advs.
Respondent Advocate Mohan Lal, Government Adv.
DispositionPetition dismissed
Cases ReferredState Road Transport Corporation (State of Bombay v. R.S. Nanji
Excerpt:
.....'pucca kuhl' - dispute between appellant and respondent over construction of 'pucca kuhl' from 'kund' which was perennial water source for providing irrigational facilities to villagers - construction of 'pucca kuhl' likely to lead to non-availability of water for appellant to run their 'gharats' - appellant raised objection as they would be deprived of source of livelihood in case of non-availability of water - contended that construction of 'pucca kuhl' was not a public purpose as it was going to benefit only a few families - further contended that notifications under section 4 were not valid as location of land was not rightly mentioned in notifications - further contended that acquisition proceedings were bad as no enquiry was made under section 5 (2) - construction of 'kuhl' will..........five years plan, for the construction of a pucca kuhl from rukamani kund, to he known as rukamani-baroa-kuhl, for providing irrigational facilities for the villages of baroa, hirapur and bhajwani. in pursuance of the scheme, a pucca channel for the kuhl was constructed. but the water from the source, rukamani-kund, could not he let in the channel, as objections, against the flow of water into the channel were raised by persons whose gharats were run, from the water. their objection was that if the water were supplied to the rukamani-baroa-kuhl, no water would be available for running their gharats and they would be deprived of their source of livelihood. the government looked into the objection and tried to accommodate the proprietors of the gharats. but no satisfactory solution could.....
Judgment:
ORDER

Om Parkash, J.

1. This is a petition, under Article 226 of the Constitution of India. The facts, giving rise to the petition, are as follows:

2. There is a perennial water-source, known as Rukamani Kund, situated in village Ropaid, Tehsil Ghumarwin, District Bilaspur. Kuhls, taken from this water-source, irrigate lands, situated in villages Bhajwani, Kallar, and Hirapur, Tehsil Ghumarwin and also run gharats in villages Bhajwani and Kallar. In the year 1955, the Public Works Department had chalked out a scheme, under the Five Years Plan, for the construction of a pucca kuhl from Rukamani Kund, to he known as Rukamani-Baroa-Kuhl, for providing irrigational facilities for the villages of Baroa, Hirapur and Bhajwani. In pursuance of the scheme, a pucca channel for the kuhl was constructed. But the water from the source, Rukamani-Kund, could not he let in the channel, as objections, against the flow of water into the channel were raised by persons whose gharats were run, from the water. Their objection was that if the water were supplied to the Rukamani-Baroa-Kuhl, no water would be available for running their gharats and they would be deprived of their source of livelihood. The Government looked into the objection and tried to accommodate the proprietors of the gharats. But no satisfactory solution could be evolved. Ultimately, the Government decided to acquire the gharats, situated in villages Bhajwani and Kallar. Notifications under Section 4 of the Land Acquisition Act, (hereinafter referred to as the Act), were issued on the 26th February, 1962, and the 21st June, 1962, with respect to villages Kallar and Bhajwani, respectively. Notifications, containing declarations, under Section 6 of the Act, wore made on the 28th July. 1962 and 29th September, 1962.

3. The petitioners, who have been adversely affected by the acquisition, have filed the present petition, impugning the validity of the acquisition proceedings, initiated with the issue of the notifications under Section 4 of the Act. The grounds of attack, against the proceedings, are: (1) that the acquisition was not for a public purpose; (2) that the acquisition was not bona fide as it was intended to benefit only some ten influential families of village Baroa; (3) that the notifications, under Section 4 of the Act, were defective, illegal and without jurisdiction inasmuch as Himachal Pradesh Administration, which had issued the notifications, was not the legally constituted authority to issue them and the Joint Secretary who had signed the notifications was not competent to do so; (4) that the substance of notifications, under Section 4 of the Act, was not given publicity in the locality as required by Section 4(1) of the Act; and (5) that no enquiry as contemplated by Section 5-A(2) of the Act was conducted.

4. The petition has been opposed on behalf of the respondents. It is admitted that gharats were run by kuhls, taken from Rukamani Kund, and that sonic lands were also irrigated. But it is pleaded that a much more larger area will he irrigated by Rukamani-Baroa-Kuhl. It is denied that the acquisition was not made for a public purpose. It is pleaded that the Rukamani-Baroa-Kuhl will irrigate about four hundred acres of land, with the result that foodgrain production will be greatly enhanced and that thus the construction of the kuhl constitutes a public purpose. It is denied that the acquisition was not made bona fide. It is pleaded that the notifications, under Section 4 of the Act, were issued by the Lieutenant Governor, who had the authority to do so and they were authenticated by the Joint Secretary who was competent to do so. So far as the allegation of the petitioners that no enquiry was held under Section 5-A(2) of the Act is concerned, it is pleaded that no objections were filed by any of the persons interested, under Section 5-A(1) and that, therefore, no question of any enquiry could arise.

5. The first question, which requires decision in the petition, is whether the acquisition in the instant case was for a public purpose. Clause (f) of Section 3 of the Act defines the expression 'public purpose' as including the provision of village sites in districts in which the appropriate Government shall have declared by notification in the Official Gazette that it is customary for the Government to make such provision This is an inclusive definition and not a compendious one and therefore does not assist very much in ascertaining the ambit of the expression 'public purpose', vide Smt. Somawanti v. State of Punjab, AIR 1903 SC 151. It was laid down in the above; authority that broadly speaking the expression 'public purpose' would include a purpose in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. In the instant case, the acquisition is being made for the purpose of the construction of Rukamani-Baroa-Kuhl. The kuhl will provide irrigational facilities for villages Bhajwani, Hirapur and Baroa, According to the respondents the kuhl will irrigate an area of four hundred acres. This statement is not supported by any evidence on the record. On the other hand, annexure RE, filed on behalf of the respondents themselves, indicates that the area which will be irrigated by Rukamani-Baroa-Kuhl will be one hundred and seventy-three acres.

Annexure RE is a report of the Deputy Commissioner, Bilaspur. It is stated, in this annexure, that the area of all types of lands, situated in villages Bhajwani and Baroa, is four hundred acres and that out of that area, one hundred and seventy-three acres, will be irrigated, by the kuhl. It is also clear from this annexure that, previously, twenty acres of land were being irrigated from the water of Kukamani Kund and that out of those twenty acres, thirteen acres sub-merged under the Bhakra-Dam-Reservior. So, only seven acres of land are being irrigated at present from the water of Kukamani Kund. The statements, in annexure RE, about the area of the lands, receive corroboration from the revenue records filed by the parties. Gopi petitioner admitted, in his statement, dated the 1st June, 1905 that at least one-third of village Kallar had come under waters of the Bhakra-Dam-Reservior. Gopi, further, admitted that Hukamani-Baroa-Kuhl will pass through Hirapur village and will irrigate some of its lands and that the kuhl will irrigate some of the lands of Bhajwani village as well and a considerable area of lands in Baroa village. It is, thus, clear that Rukamani-Baroa-Kuhl will pro-vide irrigational facilities for at least one hundred and seventy-three acres of land as against only seven acres, being irrigated at pre-sent, from the water of Rukamani-Kund. The construction of the Rukamani-Baroa-Kuhl, will increase the production of foodgrains, a national need of the hour. In view of the above facts, it cannot but be held that the construction of Rukamani-Baroa-Kuhl was a public purpose and that the acquisition of the land for the construction of that kuhl was requisition for a public purpose.

6. It was contended, on behalf of the petitioners, that the construction of Rukamani-Baroa-Kuhl was not a public purpose as it would benefit only a few families and not the public at large. The argument was that a purpose would be a public purpose only if it benefits the public at large and not only a few individuals. It is not a correct proposition that a public purpose must benefit the public at large. It was held in Babu Barkya Thakur v. State of Bombay (Now Maharashtra), AIR 1900 SC 1203 that the expression 'public purpose' has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited. The following were held to be public purposes, though there was no immediate benefit to the public at large: erection of buildings for the use of Government officials (Hamabai Framjee v. Secretary of State, AIR 1914 PC 20), providing of accommodation for the homeless, State of Bombay v. Bhanji Munji, AIR 1955 SC 41, housing of a member of the staff of a Foreign Consulate (State of Bombay v. Ali Gulshan, (S) AIR 1955 SC 810), and housing of an officer of the State Road Transport Corporation (State of Bombay v. R.S. Nanji, (S) AIR 1956 SC 294). It is clear that a purpose may be a public purpose even if a fraction of the community is benefited by it. In the instant case, Rukamani-Baroa-Kuhj will provide irrigational facilities for the lands of Bhajwani, Hirapur and Baroa villages. The proprietors of those lands will be directly benefited by the construction of Rukamani-Baroa-Kuhl. The production of foodgrains will increase. This will be to the benefit of the community in general, us well.

7. There is another aspect of the matter, also. It is admitted, in the petition, that declarations, under Section 6 of the Act, have been issued, with respect to the acquisition of the lands. These declarations are annexure RBB, with respect to village Kallar, and annexure RFF with respect to village Bhajwani. It is stated, in these declarations, that the lands were required to be taken for a public purpose, namely, for the construction of, Rukamani-Baroa-Kuhl. These declarations will be conclusive evidence, under Sub-section (3) of Section 6, that the land is needed for a public purpose. It has been held in AIR 1963 SC 151 supra that the conclusiveness or finality attached to the declaration under Section 6(1) is not only as regards the fact that the land is needed but also as regards the question that the purpose for which the land is needed is in fact a public purpose, and that the provisions of Sub-section (3) preclude a Court from ascertaining whether either of these ingredients of the declaration exists, except where it appears that in making the declaration there has been a fraud on the power conferred. It has not been shown, in the instant case, that the acquisition was the result of any fraud on the part of the Government. It was contended, on behalf of the petitioners, that the acquisition was not made bona fide but was a colourable exercise of the power. The argument was that the interests of the petitioners had been sacrificed in order to benefit a few families. It has already been shown that Rukamani-Baroa-Kuhl will provide irrigational facilities for villages Bhajwani, Hirapur and Baroa and will irrigate about one hundred and seventy-three acres of land and that the production of food-grains will be increased. The interests of the petitioners will no doubt suffer. But that will be for the greater good of the greater number. It is not alleged that the Government or any of its officials, connected with the acquisition of the land, were prejudiced against the petitioners. There was no colourable exercise of the power of acquisition Court is precluded from ascertaining whether the construction of Rukamani-Baroa-Kuhl was in fact not a public purpose.

8. The second question, which requires decision, in the petition, is whether the notifications, under Section 4 of the Act were not valid. It is not correct that the notifications were issued by the Himachal Pradesh Administration. The notifications were issued by the Lieutenant Governor. It is not disputed, that the Lieutenant Governor had been authorised to exercise the powers of the appropriate Government, under Section 4, and other sections of the Act, by the President in exercise of the powers under Clause (1), Article 239 of the Constitution. The Joint Secretary was competent to authenticate the notifications, under the Authentication (Orders and other Instruments) Himachal Pradesh Rules. It was argued, on behalf of the petitioners, that the notifications under Section 4 were bad inasmuch as the lands were described, in the notifications, as situated in Tehsil Sadar while actually the lands were situated in Tehsil Ghumarwin. In reply, it was contended on behalf of the respondents, that the mistake had crept into the notifications as at the time of the preparation of the papers for acquisition the lands were situated in Tehsil Sadar but later on were transferred to Tehsil Ghumarwin. There is nothing on the record to show that the lands were situated in Tehsil Sadar but were later on transferred to Tehsil Ghumarwin. It is to be held that the notifications incorrectly described the lands as situated in Tehsil Sadar. But this minor mistake did not vitiate the notifications. It is not alleged that the petitioners were misled or prejudiced by this mistake in the notifications. The aforesaid minor flaw in the notifications did not invalidate the notifications or the acquisition proceedings. It was laid down in AIR 1960 SC 1203 (supra) that a defect in the notification under Section 4 of the Act is not fatal to the validity of the acquisition proceedings. It was, next, contended, on behalf of the petitioners, that public notice of the substance of the notifications under Section 4 of the Act was not given in the locality and that this omission invalidated the acquisition proceedings. The allegation that the notifications were not given publicity in the locality is not correct. Only two persons, Mauther and Khothi, real brothers, were, affected by the acquisition in village Kallar. These persons were given a copy of the notification under Section 4 of the Act, as is clear from the report of the Patwari, copy annexure RK. It is stated, in the report, that Mauther had signed the duplicate copy of the notice in token of the service but Khothi had refused to affix his signature. Aunexures RP to RV are copies of the notices, served on the residents of the village Bhajwani, who were affected by the acquisition. These notices were got served through the Consolidation Department. It is clear from the report of the Consolidation Officer that one copy of the notification was affixed at the place of acquisition. The annexures, referred to above, establish that the persons interested were duly informed of the promulgation of the notifications and that the substance of the notifications was given wide publicity in the locality.

9. The only contention, which remains to be decided, is whether the acquisition proceedings were bad as no enquiry was made under Section 5-A(2) of the Act The contention, on behalf of the respondents, was that as noobjections were filed under Section 5-A(1), the question of holding any enquiry did not and could not arise. A perusal of Section 5-A (2) of the Act makes it abundantly clear that an enquiry is to be held only with respect to the objections, if any, filed by any person interested. If no objections are filed, there is nothing to be enquired into. The Collector is to report to the appropriate Government that no objections have been filed. There is no evidence, what-so-ever, that the persons interested in acquisition in village Bhajwani had filed any objections against the acquisition. Mauther and Khothi, the persons affected by the acquisition in village Kallar, had made a representation to the Lieutenant Governor on the 23rd September, 1962, that their gharats should not be acquired. A copy of the representation was forwarded to the Land Acquisition Officer. Mauther and Khothi had been served with notices about the issue of the notification under Section 4 of the Act on the 12th May, 1962. The objections should have been filed within thirty days from that date. Even if the copy of the representation sent to the Land Acquisition Officer be considered as objections filed under Section 5-A(1), the objections were barred by time. The Collector rightly ignored those objections. In fact, the Collector had submitted his report under Section 5-A(2) of the Act on the 30th July, 1962, long before the representation was made by Mauther and Khothi. The Collector did not in any way contravene the provisions of Section 5-A(2) of the Act.

10. The grounds, urged on behalf of the petitioners, for impugning the validity of the acquisition proceedings, are not well-founded. The petition is dismissed with costs. Lawyer's fee is assessed at Rs. 50.


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