DEVI SARAN VERMA Vs. STATE OF H.P.

JUDGEMENT

(1.) In this writ petition, the petitioners have prayed for the issue of a writ to quash a notification under section 4 (1) of the Land Acquisition Act, 1894, (hereinafter referred to as the Act), dated 6 -11 -1990 and another notification under sections 6 and 7 of the Act (Annexures P -l and P -l5 respectively) and for restraining the respondents from acquiring lands of an extent of 46 Bighas and 9 Biswas at village Shogi, Tehsil and District Shimla. Though several grounds have been set out in support of the writ petition, essentially, the complaint of the petitioners is three fold. According to the case of the petitioners, the policy of the State is not to acquire agricultural lands and contrary to that, the respondents have proposed to acquire agricultural lands belonging to the petitioners, which would have disastrous effects upon the petitioners. The second ground put forward by the petitioners was that an assurance was given by the then Honble Chief Minister on 15 -12 -1991 that for the purpose of construction of a residential colony at village Shogi, lands may be acquired elsewhere and, therefore, the acquisition proceedings should not be permitted to be taken, in violation of the assurance given. Yet, another ground put forward by the petitioners was that the proposed acquisition was not for a public purpose, but for the benefit of the H. P. Housing Board and, therefore, the acquisition proceedings should not be allowed to be proceeded with. In the reply filed by the first respondent, it was stated that the Housing Board was requested to ascertain whether alternative sites at Shogi for the purpose of the proposed colony was available, but the Board had intimated that there was no alternative land at Shogi suitable for the proposed Housing Colony and it was also stated that as per the report received from the Housing Board, there was no other suitable site in Shogi for the construction of the Social Housing Colony in that place. Respondents, therefore, maintained that in view of the non -availability of alternative suitable lands for the construction of the Social Housing Colony at Shogi, the proposed acquisition was in order and not violative of the policy not to acquire agricultural lands. Referring to the so called assurance that other lands will be acquired for establishing a Social Housing Colony at Shogi, it was stated that a representation dated 15 -11 -1991 was addressed to the then Chief Minister which was also received from the petitioners and the Housing Board was directed to ascertain the availability of the alternative sites at Shogi and the Board had intimated that there was no alternative land at Shogi available for establishing the proposed Housing Colony. With reference to the purpose of the acquisition, it was stated by the respondents that a survey was made by the Housing Board in Shogi in 1988 and 260 persons got themselves registered under the Housing Scheme and provision of a colony to give shelter to the needy who do not own any house, would be a public purpose and, therefore, no exception could be taken to the proposed acquisition. In the rejoinder filed by the petitioners, it was reiterated that a decision had been taken to acquire some other lands and the non -issue of de -notification in respect of the laud proposed to be acquired, would not make any difference. In addition, it was also stated that no attempt had been made to acquire land, not under cultivation or without orchard and the inescapability certificate (Annexure R 1 to the reply of respondent No. 1) had been issued in a routine manner and not in conformity with the decision of the Government dated 16 -12 -1975, as per Annexure P -2. It was also stated in paragraph 9 of the rejoinder of the petitioners that sufficient land is available in village Batlana for construction of such colony, and -Government land is also available adjacent to the lands of the private parties in village Batlana, which can be utilised for the construction of a Housing Colony. That the land in village Batlana is the usual type of slopy hilly land, was also stated Reiterating the stand taken in the writ petition, the petitioners claimed that they are entitled to be granted the relief prayed for in the writ petition.

(2.) Learned Counsel for the petitioners first contended that the proposed acquisition of agricultural lands from the petitioners ran counter to the policy of the Government as set out in Annexure P -2 dated 16 -12 -1975 and, therefore, the further acquisition proceedings should not be allowed to be proceeded with. Reliance in this case was also placed on the decisions reported in Achhelal Singh and others v. State of Bihar and others, AIR 1980 Pat 49 and Maganbhai Vanarshibhai Patel V, The State of Gujarat and others, AIR 1976 Guj 84. On the other hand, learned Assistant Advocate General, submitted that though it may be that as far as possible, acquisition of agricultural/cultivable lands for non -agricultural purpose, should not be resorted to, yet, in this case owing to the non -availability of the other suitable lands, the proposal for acquisition of agricultural lands has been made and this is also supported by the inescapability certificate (Annexure R -l) and no exception can be taken to the proposed acquisition. It was also submitted that the decisions relied upon by the learned Counsel for the petitioners have no application on the facts and circumstances of this case.

(3.) Out of a total extent of 46.09 Bighas proposed to be acquired, the interest of the petitioners is only in 1.18 and 0.13 Bighas respectively and no more. Though the lands in which the petitioners and interested may be agricultural lands y yet, it has to be considered whether there is any policy as such, prohibiting the acquisition of agricultural lands It is not in dispute that under the provisions of the Act, any kind of land inclusive of agricultural/cultivable lands can be acquired. However, in this case the communication dated 16 -12 -1975 has been pressed into service by the learned Counsel for the petitioners to contend that a policy can be spelt - out therefrom to the effect that agricultural and cultivable lands, should not be acquired. On a consideration of the contents of Annexure P -2, it is seen that while emphasising the need to preserve agricultural and cultivable lands, it had been stated that even such lands can be acquired only after exercising due diligence in finding out any other alternative land and if such land could not be so found. In addition, Annexure P -2 also proceeds to state that while demarcating lands for new alignments of roads, all possible and earnest efforts should be made to save agricultural/cultivable land from the alignments, and that the Superintending Engineer, while issuing inescapability certificate, should also certify that all possible efforts had been made by the department before issuing the inescapability certificate to save as much agricultural/cultivable land from acquisition, as could be possible. From the contents of Annexure P -2, it is difficult to make out that there was any wholesale prohibition with reference to acquisition of agricultural lands for the public purpose. It only states that as far as possible acquisition of agricultural/cultivable land should be avoided, if alternative lands could be found. The inescapability certificate dated 1 -8 -1989 states that there is no adequate Government land available in the vicinity for the purpose of construction of Social Housing Colonies at Shogi and the lands mentioned therein are required by the H. P. Housing Board Shimla. From this, learned Counsel for the petitioners sought to contend that at best it can be stated that there is no other Government land available, but it would mean that lands of other private parties are available for acquisition, not being agricultural or cultivable lands It is difficult to accept the contention so advanced, for, even according to -paragraph 9 of the rejoinder of the petitioners to the reply of the first respondent, it had been stated that there is sufficient land available in village Batlana. In paragraph 15 (iii) the petitioners had also stated that the land in village Batlana is usual type of hilly land. It is significant that in the reply filed by the first respondent in paragraphs 9 and 15 (iii), it had been stated that their is no alternative land at Shogi available for the proposed Housing Colony. The petitioners have not been able to make out that lands, other than the agricultural lands, are available for acquisition in the village concerned. On the other hand, they have stated that such lands are available in a different village. Considering the stand taken by the petitioners that other lands are available in Batlana village and also that of the respondents that no other alternative lands are available in Shogi Village, it follows that the inescapability certificate (Annexure R -1) had been properly issued on the footing that there is no other adequate Government land available in the vicinity for the proposed Housing Colony. When even according to the petitioners lands of private parties are available in Batlana village, it follows that for the purpose of establishing a Housing Colony in Shogi village, there is no non -agricultural and uncultivable lands available in that village for the purpose of establishing a Housing Colony by the H. P. Housing Board. Earlier it had been pointed out that even as per Annexure P -2 there is no total prohibition against the acquisition of ft agricultural/cultivable lands, but that as far as possible, the acquisition of such lands should be avoided, unless the proposed acquisition could be brought within the frame -work of an inescapability certificate. From the facts set out earlier in this case, ii is clearly established that owning to the non -availability of other lands in village Shogi, the acquisition of lands had been notified, bringing such acquisition within the scope of the inescapability certificate. The decision in Maganbhai Vanarshibhai supra), relied upon by the learned Counsel for the petitioners does not advance their case, for, in that case the policy of the Government was not to acquire lands surrounding developing areas, but lands at a distance of quarter or half a mile may be acquired. As noticed earlier, the contents of Annexing P 2, dated 16 -12 -1975, do not place any embargo upon acquisition of agricultural/cultivable lands as such, but suggests an avoidance of such acquisition, as far as possible, and under those circumstances the decision relied on cannot be made applicable in the situation obtaining in the were sent case. In Achhelal Singh and others v. State of Bihar and others (supra) the main attack upon the proposed acquisition was that the acquisition proceedings were commenced mala fide and it was in that context the Court pointed out that land acquisition proceedings are never meant to be a weapon m the hands of the executive authority to wield it according to their whims and caprices and that the authorities had thrown to winds - the Government orders to the effect that efforts should be made to avoid acquisition of lands of small holders having not more than 25 acres in all and also to select the cheapest land and this, taken alongwith other circum stances, led to the conclusion that the proposed acquisition smacked of malice. This decision also does not in any manner support the plea of the petitioners, for, the pre -dominant question that was considered in that case was with reference to the mala fides of proposed acquisition and one feature, which pointed out to that conclusion, was the total disobedience and violation of the directions issued by the Government with reference to acquisition of lands. Having regard to the controversy regarding mala fides that arose for decision in that case, the reliance placed on that decision is of no assistance to the petitioners. In view of the above the submission of the learned Counsel for the petitioners cannot be accepted