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2012 Supreme(J&K) 268
JAMMU & KASHMIR HIGH COURT
Mansoor Ahmad Mir, J.
Villagers of Anzwalla -Appellant
Versus
State of J&K & Ors. -Resopndent
OWP No. 399/2010
Decided On : 12-06-2012
Mr. GA Lone for the petitioners.
Mr. NH Shah, Dy. A. G., for respondent No. 1, 2, 4 , 5.
Mr. A. M. Magray, Sr. AAG, for respondents 3, 6 , 7.
Mr. Manzoor A. Ganaie for respondent No. 8.
Kahcharai Land can be acquired for public purposes, and the compensation amount is to be spent for the welfare of the community.
Headnote:
Land Acquisition - Public Purpose - Kahcharai Land - The court upheld the government's acquisition of Kahcharai Land for the construction of a Primary Health Centre, emphasizing that the land can be utilized for public purposes when suitable alternate land is not available. The court relied on the Land Acquisition Act and previous judgments to establish that Kahcharai Land is the property of the government and that the compensation amount is to be spent for the welfare of the community.
Fact of the Case:
The petitioners challenged the transfer of Kahcharai Land for the construction of a Primary Health Centre, arguing that the land was reserved for grazing purposes and could not be utilized for any other purpose. The respondents defended the transfer, stating that it was necessary to provide better health care facilities to the public, particularly the rural population.
Finding of the Court:
The court found that the government had acquired the land to provide better health care facilities to the village and the public in general, and therefore upheld the impugned order. The court dismissed the writ petition, stating that there was no merit in the petitioners' claims.
Issues: The main issue was whether the transfer of Kahcharai Land for the construction of a Primary Health Centre was valid, considering the petitioners' contention that the land was reserved for grazing purposes and could not be utilized for any other purpose.
Ratio Decidendi: The court relied on the Land Acquisition Act and previous judgments to establish that Kahcharai Land is the property of the government and can be utilized for public purposes when suitable alternate land is not available. The court emphasized that the compensation amount is to be spent for the welfare of the community.
Final Decision: The court dismissed the writ petition and vacated the interim direction, with no order as to costs.
2. Respondents have filed the reply and have resisted the writ petition on the ground that, in order to provide better health care facilities to the public in general, and, more particularly to the rural population of the area, the Government passed the impugned order and that the need of a public health centre in the area was direly felt. It is stated that, in view of the interests of public in general, the Government is within its powers to transfer the land in question for the aforesaid public purpose.
3. It is seen from the reply of respondent No. 5 that there exists a big chunk of land measuring 173 Kanals and 7 Marias covered under Khasra No. 13 situate at Village Anzwalla, out of which only an area of 19 Kanals and 10 Marias has been identified and transferred to the Health Department foi construction of Primary Health Centre at the Village itself and the said step has been taken in the larger public interest.
4. On the other hand, Mr. G. A. Lone, learned counsel appearing for the petitioners argued that Kahcharai Land cannot be acquired and transferred. The argument of Mr. Lone is devoid of any force.
5. It is settled position of law that Kahcharai Land is the property of the Government; therefore, the petitioners have no individual rights or interest on the said land. The Government is within its powers to acquire it, when the same is for the public purpose, more so, when the amount of compensation on account of the land in question will be utilized by transferring the same to the village Panchayat in terms of Cabinet Decision No. 355 dated 27.03.1979 read with Government Order No. Rev (LAK) 275 of 1979 dated 28.09.1979. A plain reading of the provisions of the Land Acquisition Act and the Government order aforementioned, clearly establishes that the Kahcharai Land can be utilized for the public purpose, when alternate and suitable land is not available.
6. This Court in case Habibullah Sheikh v. State of J&K, 2009 (1) SLJ 150, 2008 (3) JKJ [HC] 170, incidentally of which I am the author, has held that Kahcharai Land can be acquired for public purpose and the amount of compensation in lieu thereof is payable to the concerned Panchayat, in whose jurisdiction land falls, to be spent for welfare of the community of the area in question. It would be apposite to reproduce the paragraphs 5 and 6 of the judgement, which read as follows:
"5. The petitioners have no right or interest over the said land. It is virtually a property of the government but meant for grazing purposes. If Kahcharai land is to be acquired for any public purpose the amount is to be spent for welfare of the community. Division Bench of this Court in case titled Ghulam Mohammad Bhat & others v. State and anr. reported as SLJ 1981 JK 254 has held that if Kahcharai land is acquired, the compensation is payable to the concerned Panchayat in whose jurisdiction land falls. It is the property of the community.
6. If Kahcharai land is acquired, the petitioners have no right to challenge the same. However, the compensation amount is to be utilized for the benefit of the villagers. The villagers are not before the Court. The writ petitioners have filed writ petition in individual capacity. The electric department has specifically averred that land came to be acquired for the purposes of construction of Grid Station for public purpose. The petitioners cannot
