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Judgment
Petitioner's land measuring 52 Kanals and 19 Marlas situated at Village Gagran, more specifically referred and described with break up in para
4 of the writ petition, is in the process of acquisition for establishing a College at Shopian. After initial abortive attempt to get this land by private
negotiation the Collector (respondent No. 4) has taken steps for acquisition of the land under Land Acquisition Act thereinafter also referred as
Act). Notice U/s 4 of the Land Acquisition Act was issued on 24111999 and published in Government Gazette. Notice U/s 9 of the Land
Acquisition Act has been also issued. Petitioner's pray for certiorari for quashment of both the notices and mandamus requiring the respondents not
to acquire the land in question.
The grounds tendered by the Ld. counsel in his submissions while soliciting for the relief prayed for and as averred in the petition are that the
Government had taken policy decision to acquire the Government land for construction of Colleges which do not have their own buildings. By
acquiring the land, the Collector Land Acquisition has gone beyond this decision of the Govt. The mandate of Section 4 of the Act is publication of
preliminary notice in two daily newspapers having largest circulation in the locality of which at least one shall be in the regional language and a
public notice of the order in the locality by the mode of beat of drum and through the local Panchayat and Patwari. This mode of publication and
public notice has not been followed, in as much as there has been neither publication nor public notice of preliminary notice/order. Petitioners
whose only source of income is the land and its fruit trees, cannot be deprived of their sustenance and right to own and possess the properly (laud)
in question, as it would amount to infringing the fundamental rights of petitioner to livelihood and thereby notice U/s 4 of the Act is constitutionally
invalid.
Respondents through Collector SDM Shopian have filed objections. The contention putforth by petitioner is contested and refuted. The land is
staled to be required for public purpose, in as much as Degree College Shopian is to come upon the site. Process of acquisition of the land by
private negotiation was initiated as far as back on 19111991 and 10121991. Petitioners on summons did participate in these proceedings held on
above two dates. Out of total land in question proposed to be acquired, 27 Kanals and 14 1/2 Marlas have been already acquired through private
negotiation. The Government has not taken any policy decision that in case of construction of degree colleges the Govt. land alone is to be made
available. The facts are wrongly placed and distorted version on that count is given, notwithstanding the direction ofthe Government that in all cases
where college buildings are not available, the first attempt should be to look out for Government land for raising such buildings to avoid avoidable
expenses on that count. However, in this case on the report of Tehsildar Shopian that no Government land was available in Shopian within 2 Kms,
the collectorate had to initiate the acquisition proceedings for acquiring the land in question after Higher Education Department moved an indent for
acquisition of land for construction of Degree College on the site at Village Gagran which was identified and selected for acquisition. As the
petitioners failed to execute the sale deeds after negotiating privately and agreeing on the deal with the Government department, compulsory land
acquisition process had to be resorted to. The preliminary notice U/s 4 of the Act has been notified on 17041994 in response to which petitioners
and others have failed to file objections. However, petitioners all along participated in the acquisition proceedings and have full knowledge of
acquisition proceedings since 1991. Petitioners having failed to challenge the notification for long six years and having also participated in the
proceedings should not be allowed to challenge the acquisition itself. The case suffers from unreasonable delay and latches. The preliminary notice
is staled to have been duly published and served in compliance with provisions of Section 4 of the Land Acquisition Act. The petitioners filed
presentalion and applications before, the Govt. in July. 1996 and Revenue Minister in March 1997. Petitioners are also stated to have filed
objections to the acquisition proceedings. No prejudice has been caused to pelilioners. Petitioners have full knowledge of acquisition. Even al this
stage firuil award stands passed by Collector on 17042001. This award is not challenged in this petition, la the above facts and circumstances, the
writ petition is neither maintainable nor merited
There is no dispute that the land is being acquired for Degree College Shopian. The public purpose for acquisition is obvious. The acquisition of
land has started in Nov./ Dec. 1991 when parties tried to resolve issue of acquisition of the land by private negotiations. Petitioners participated in
negotiations. Some portion of the land has been' acquired in that mode. As the whole land could not be acquired in that manner, compulsory
acquisition process was initialed with issuance of notice U/s 4 of the J and K. Stale Land Acquisition Act on 17041994. As a mailer of expediency
and to save some money, Director College Education subsequently in August 1997, requested District Development Commissioner, Pulwama to
make available Government land for construction of College at Shopian pursuant to meeting chaired by Chief Minister to review the requirements
of Education sector. But on affidavit, in reply, it is staled that as suitable Govt. land was not available in Shopian within radius of 2 Kms, which
could have been utilized for the Degree College. The respondents had to close this option. The acquisition proceedings had to be pursued. Even
otherwise it was an administrative instruction and not a policy decision as projected by the petitioners. Only because the petitioners orchards are
on the land, same cannot be a reason to block the acquisition of land for well defined public purpose. After all individual economic or trade
interest, has to give way lo public interest. The reasonable acquisition procedure whether compulsory, statutory or otherwise cannot be found fault
with on that account. In the facts and circumstances of the case, it cannot be said and muchless so held, that a policy decision has been breached
or bypassed in this case while taking steps and initiating the process of acquisition of land under the J and K Land Acquisition Act.
' 5. The preliminary notice U/s 4 of the Land Acquisition Act issued on 24111999 is alleged not to have been published and notified to the public
in the prescribed mode as laid U/s 4 of the Act. Section 4 (1) as amended by Act No. IV of 1997 reads as under:
Publication of preliminary notification and powers of officers thereupon.Whenever land in any locality is needed or is likely to be needed for any
public purpose the Collector shall notify it:
(a) through a public notice to be affixed at convenient places in the said locality and shall also cause it to be known by beat of drum and through
the local Panchayats and Patwaries:
(b) in two daily newspapers having largest circulation in the said locality of which at least one shall be in the regional language.
The notice is stated not to have been fixed at convenient place in Village Gagran where the land not notified need to acquire land for the college
in the locality by beat of drum and through local Panchayat and Patwari. Also notice was neither published in Government Gazette nor in two daily
newspapers. It is staled that acquisition matter came to petitioners knowledge when notice u/s 9 of the Act was affixed in the Tehsil Office. It was
then that the petitioners filed their objections. Being so on the basis of cited authority State of Mysore Vs. Abdul Razak (AIR 1973 SC 2361), it is
submitted by petitioner counsel that the notification is invalid and consequently the whole acquisition process is vitiated.
However, from reply and record it is seen that after the land in acquisition in Village Gagran was identified and selected for acquisition and on
failure of the private negotiation in which petitioners also participated the compulsory acquisition was resorted lo. Notice U/s 4 of the Land
Acquisition Act came to be issued on 24111999. However, no objections were received by the collectorate (Sic) of acquisition. Declaration of
requirement of the Land for public purpose U/s 6 and order of acquisition of land U/s 7 of Land Acquisition Act were made. Public notice U/s 9 of
the Land Acquisition Act was given on 11121999. Respondents have participated in the acquisition proceedings. They have even entered private
negotiations with the respondents. Even the rules of compensation too arc Stated to have been accepted. Petitioners have full knowledge of
acquisition proceedings. The notice has been published in two newspapers as prescribed. There is even endorsement that the public notice has
been given by beat of drum and also notice was given in the convenient places in locality. Petitioners even in petition admitted that the notice U/s 4
has been published in the Government Gazelle. This apart as the petitioners have associated themselves in acquisition matter in one or other form,
since November. 1991 and have full knowledge about the acquisition and do have participated in the proceedings. Petitioners cannot be heard to
say that they are prejudiced on that count. Petitioners cannot succeed thereto.
After the preliminary notification U/s 4 of the Act issued on 24111999, further declaration of intending acquisition U/s 6 of the Act and notice
U/s 9 of the Act too have been issued. There has been enquiry and even final award is made by the Collector Land Acquisition on 17042001.
Petitioners have participated in these proceedings. They have been engaging themselves with the authorities in and one or the other form right from
November. 1991 and after 1994 with the issuance of notice U/s 4 have participated in acquisition proceedings under Land Acquisition Act. They
may or may not have filed objections, but have participated in proceedings with full knowledge of the acquisition proceedings right from beginning.
In such circumstances, obviously there is delay and the writ also suffers from latches. Though valid notification U/s 4 is sinequanon for initiation of
proceedings for acquisition of property, but when acquisition proceedings are allowed to be completed on the basis of notification U/s 4 of the Act
and declaration U/ s 6 of the Act, challenging the notification belatedly after final award is passed by Collector under Land Acquisition Act, when
the very grounds of challenge were available in the beginning when preliminary notification and declaration was made, renders the writ petition not
maintainable. The whole proceedings in this case give an impression that the process is resorted to by way of dilatory tactics and obviously writ
court cannot come to the help of writ petitioners in such a situation, so as to put a premium on such dilatory tactics. See Smt. Ratni Devi Vs. Chief
Coinmr. Delhi (AIR 1975 SC 1699).
In Aflatoon Vs. Lt. Governor, Delhi (AIR 1974 SC 2077) constitutional Bench of the court observed:
There was apparently no reason why the writ petitioners should have waited till 1972 to come to this court for challenging the validity of the
notification issued in 1959 on the ground that the particulars of the pubic purpose were not specified. A valid notification under Section 4 is a
sinequanon for initiation of proceedings for acquisition of property. To have salon the fence and allowed the Government to complete the
acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the
notification on grounds which were available to them at the time when the notification was published would be putting premium on dilatory tactics.
The writ petitions are liable to be dismissed on the ground of latches and delay on the part of the petitioners.
In Hari Singh and Others Vs. Stale of U.P. andOthers (AIR 1984 Sc 1020), Supreme Court in appeal approved the dismissal of the writ
petition by the High Court on the ground that the writ petition did suffer on account of delay and latches when the public notice U/s 4 (1) of the
Land Acquisition Act was challenged nearly 2 and half years after the notification was issued. In like circumstances a Division Bench of Madras
High Court in Mohd Habibullah Vs. Spl. Dy. Collector and Others (AIR Madras 118) dismissed the writ petition on the ground that the writ
petition has been filed three years after issuance of the notification.
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 Amaballa Pursholtam etc. Vs. Ahmedabad Municipal Corporation and Others
(AIR 1968 SC 1223). it is observed:
The Land Acquisition Act authorises the appropriate Government to notify laud 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 5A of the Land
Acquisition Act, the Government of Bombay published a notification under Section 6 (1) of the Land Acquisition Act that the lands were needed
for a public purpose. That declaration was, by virtue of Section 6 (3) of the Act, conclusive evidence that the land were needed for a public
purpose. By the compulsory acquisition for a public purpose, subject to payment of compensation, no fundamental rights guaranteed under Articles
19 and 31 (2) of the Constitution 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 that question. The plea of infringement of fundamental right of the
appellants is wholly unsubstantial and was rightly not raised before the High Court in the writ petitions out of which these appeals arise.
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 prescribed by J and K Land Acquisition Act. Such acquisition does not offend the
right to own and possess the property under the constitution.
So long the acquisition is for public purpose individual rights are to yield to public interest. Plea of deprivation of livelihood by compulsory
acquisition of laud is unsustainable in as much as the owner/claimants are payed compensation, solatium and interest. In Chameli Singh Vs. State of
U.P. and Anor. (AIR 1996 SC 1051), it is observed:
In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The
State exercises its power to eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose,
the individual's right of an owner must yield place to the larger public purpose. For compulsory nature of acquisition, subsection (2) of Section 23
provides payment of solatium to the owner who declines to voluntarily part with the possession of Land Acquisition in accordance with the
procedure is a valid exercise of the power. It would not, therefore, amount to deprivation of right to livelihood.
Yet another important feature of the case which cannot be lost sight of is that the conduct of the petitioners in the facts and circumstances of
this case, should disentitle them to any relief. Knowing well about the acquisition proceedings relatable to their land for setting up the College at
Shopian and engaging initially in private negotiation with the respondents to struck the deal and thereafter participating in acquisition proceedings of
the land and even as uncontroverteably alleged that they settled even on rate of compensation, their awakening to challenge the notification and
claim on allegation that they have no knowledge about the acquisition proceedings till notice U/s 9 ofthe Act came to be issued is sufficient to
dismiss this petition. They have taken years together to dig and drag on the matter. The annexures on record A, B, C and D do show that they
have tried every trick to derail the acquisition proceedings. They participated in the proceedings and only when they failed in their attempts to
block the acquisition process, they have filed this writ petition. It appears a case were dilatory tactics have been adopted to prolong the
proceedings and frustrate the attempt of acquiring the land for the College. Serious public prejudice is the result, in case petitioners succeed in the
writ. The wider public interest also require that petitioner's conduct in the matter should not gel a premium tag.
In result, for the aforesaid reasons the writ petition does not qualify on merits to be admitted for hearing. Dismissed in limini.