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Kashinath And Others v. State Of U.P And Others
Judgment Summary — B.M. Lal, J.
Factual and Procedural Background
Two petitions raising an identical question were heard together and disposed of by this common judgment. The petitions challenge a notification dated 8-7-1975 (Annexure-2) and a notice dated 14-11-1985 (Annexure-3) under the Land Acquisition Act, 1894, by which petitioners' land — Plot No. 251/3 (area 0.24 acres) and Plot No. 246/1 (area 0.47 acres) in village Pahirya, Pargana Shivpur, District Varanasi — was being acquired for the Varanasi Development Authority to implement the Pahirya Housing and Development Scheme.
Acquisition proceedings were initiated under the Land Acquisition Act, 1894. A notice under Section 4 was issued, and the acquisition proceeded under Section 6 (satisfaction that land was needed for public purpose). The authorities also invoked Section 17 of the Act on the ground of urgency, directing the Collector that, notwithstanding any award, possession may be taken after fifteen days from the Section 9(1) notice.
The petitioners asserted that they are owners and in possession, that they have constructed dwelling houses on the disputed plots and reside there with their families, and that they have no other suitable accommodation in Varanasi city. They pointed out that Varanasi Nagar Mahapalika had allotted a house number for municipal tax purposes. The petitioners contended that acquiring their dwelling houses without providing alternative accommodation would render them homeless and would be contrary to the object of the housing scheme and principles of social justice. They also challenged the invocation of Section 17 on grounds of absence of urgency.
Respondents (including the Varanasi Development Authority and the Special Land Acquisition Officer) filed counter-affidavits denying the existence of pucca houses: they stated that only tin-sheds (or temporary structures) existed, erected without sanction, and that only three petitioners had residential houses over 0.04 acre. The respondents justified invocation of Section 17 on urgency grounds and by reference to a World Bank loan for the development.
Legal Issues Presented
- Whether a dwelling house (and its appurtenant structures) can be acquired along with the land without providing alternative accommodation to the occupants.
- Whether the authorities were justified in invoking Section 17 of the Land Acquisition Act, 1894, to obtain possession on a shortened timeline (i.e., whether urgency dispensed with normal procedure was properly invoked).
Arguments of the Parties
Petitioners' Arguments
- The petitioners are owners and in possession of the specified plots and have constructed dwelling houses thereon in which they and their families reside.
- They have no other suitable accommodation in Varanasi city and have been assigned a house number by Varanasi Nagar Mahapalika for municipal tax purposes.
- Acquiring their land and dwelling houses without providing alternative accommodation would make them homeless and defeat the object of the housing scheme (which aims to house the homeless), contrary to social justice.
- The invocation of Section 17 (urgency) was unjustified in the absence of true urgency, and therefore the procedure was improperly curtailed.
Respondents' Arguments
- The so-called houses are only tin-sheds or temporary structures erected without sanction; they are not pucca buildings.
- Only three petitioners have residential structures over an area of 0.04 acre, according to the Special Land Acquisition Officer's affidavit.
- The Varanasi Development Authority acted lawfully; a World Bank loan had been advanced for the development, and the matter involved urgency, justifying recourse to Section 17 of the Act.
- The acquisition notifications and proceedings are valid and the petitions lack merit and should be dismissed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt. Somawanti v. State of Punjab, AIR 1963 SC 151 | The opinion notes this case as part of a "catena of decisions" dealing with the point in issue (acquisition of land and related structures). | The court cites it as one of several Apex Court decisions considering the point, without extracting a specific separate rule beyond its inclusion in the line of authority. |
| Chaturbhuj Pande v. Collector, Raigarh, AIR 1969 SC 255 | Listed among the Apex Court decisions in the "catena" on the point whether structures on land are included in land acquisition. | Referenced as authority in the body of precedent on the issue; applied collectively with other decisions to support legal propositions discussed in the judgment. |
| Bai Malimabu v. State of Gujarat, 1978 2 SCC 373 | Included among Supreme Court decisions that have considered the point in issue. | Referenced as part of the existing Supreme Court jurisprudence addressing acquisition of land and appurtenant structures. |
| Bamandas Mukherjee v. State of West Bengal, AIR 1985 Cal 159 | Held (as described by the judgment) that while acquiring a dwelling house, alternative accommodation should be provided to its occupants; vacant land cannot be equated with residential buildings because acquisition may render occupants homeless. | The court considered this decision but distinguished it on the facts (disputed existence of a pucca house in the instant case); the court accepted the principle that occupants of dwelling houses should be provided accommodation but did not apply Bamandas to quash the acquisition in the present case. |
Court's Reasoning and Analysis
The court first examined the statutory definition of "land" in Section 3-A of the Land Acquisition Act, 1894, which includes "benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth." The court observed that the phrase "permanently fastened to anything attached to the earth" is wide enough to include soil, buildings, charges on the land, or other interests including superstructures. Consequently, it is not incumbent upon the authorities to mention separately the superstructure in the acquisition notification, because the purpose of the notification is to acquire the land (which, by statute, includes attached structures).
The court held that the Section 6 notification is conclusive evidence that the land is needed for public purposes (here, the Pahirya Housing and Development Scheme), and that the absence of a separate description of any superstructure does not invalidate the notification.
Turning to the petitioners' reliance on Bamandas Mukherjee (which held that alternative accommodation should be provided when acquiring dwelling houses), the court analyzed the facts and found them distinguishable. The existence and nature of any dwelling on the disputed plots were controverted: respondents maintained that only tin-sheds or temporary structures existed and that any such structures were erected without sanction, whereas the petitioners claimed pucca construction and municipal house numbering but did not supply the house number or corroborative material. Given the absence of material proving a pucca house, the court declined to hold that permanent houses existed on the land.
The court nevertheless acknowledged the acute housing problem in Varanasi and recognized that, if occupants of dwellings are made homeless by acquisition, they would likely be unable to obtain suitable alternative accommodation on reasonable terms. The court therefore took judicial notice of the practical hardship that displacement would cause and accepted the normative proposition (derived from social-justice considerations and the Bamandas reasoning) that providing alternative suitable accommodation to occupants is desirable and, in such situations, "a must."
Balancing individual hardship against public interest, the court held that the presence (or possible presence) of temporary dwellings did not, by itself, justify quashing the acquisition where a larger public interest would be served by implementing the housing scheme. To mitigate the hardship to petitioners, the court fashioned remedial relief: it declined to stop the acquisition but directed the Varanasi Development Authority to accommodate the petitioners on a priority basis in the Pahirya Housing and Development Scheme by allotting suitable accommodation to them, subject to payment of the requisite price. The allotment was ordered to be made irrespective of whether the petitioners had previously applied or paid any registration fee.
On the invocation of Section 17 (urgency), the court recorded the respondents' position that a World Bank loan for the development and the urgency of the project justified recourse to Section 17. The decision did not set aside the exercise of Section 17; rather, it preserved the acquisition while imposing the accommodation-direction to protect the petitioners' interests.
Holding and Implications
PETITIONS DISMISSED.
Direct effect on the parties:
- The petitions challenging the acquisition notifications were dismissed.
- The Varanasi Development Authority (respondent No. 4) was directed to accommodate the petitioners on a priority basis in the Pahirya Housing and Development Scheme by providing suitable accommodation, subject to payment of the requisite price by the petitioners. This allotment was to be made irrespective of whether the petitioners had previously applied or paid any registration fee, but on the usual conditions (i.e., subject to payment of the requisite price).
Broader implications:
- The court confirmed that "land" under Section 3-A includes structures attached to the earth, and that Section 6 notification need not enumerate superstructures separately.
- The judgment recognized the principle (as reflected in prior case law such as Bamandas Mukherjee) that occupants of dwelling houses displaced by acquisition should, where appropriate, be provided alternative accommodation. The court enforced that principle here through a remedial direction rather than by quashing acquisition proceedings.
- The decision balanced individual hardship against public interest: it did not establish a categorical bar on acquiring land with dwellings, but it required protective measures for occupants where displacement would cause hardship. The opinion did not purport to lay down a new general precedent beyond the application to the facts before the court.
Disposition: With the direction for accommodation in paragraph 25 of the judgment, both petitions were dismissed.
B.M Lal, J.:— Since an identical question is involved for consideration in both the petitions mentioned above, they are being disposed of by this common judgment.
2. The short point which requires consideration in both the petitions is that whether along with the land dwelling house could also be acquired without providing alternative accommodation to the occupants of the house? These petitions are directed against a notification dated 8-7-1975 (Annexure-2) and notice dated 14-11-1985 (Annexure-3) respectively, whereby petitioners' land (Plot No. 251/3 area. 24 acres and Plot No. 246/1 area. 47 acres) is being acquired for making it available to Varanasi Development Authority for extension of Pahirya Housing and Development Scheme.
3. The acquisition proceedings have been initiated in accordance with the provisions of Land Acquisition Act, 1894 (here-in-after referred to as the Act), and after completing preliminaries the notification referred to above contemplated under Section 4 of the Act was issued. This acquisition is in the form of Section 6 of the Act as the authorities are satisfied that the total land mentioned in the schedule is needed for public purposes referred to above.
4. Further, having found that it is a matter of urgency the authorities have also invoked the provisions of Section 17 of the Act, directing the Collector, Varanasi that notwithstanding any award made under Section 11 of the Act, authority may after fifteen days from the publication of notice issued under sub-section (1) of Section 9 of the Act, take possession of tho land mentioned in the schedule which includes plot No. 251/3 area 24 acres and No. 246/1 area. 47 acres.
5. This acquisition has been challenged by the petitioners inter-alia on the ground that they are owners and in possession of plot No. 251/3 and 246/1 situated in village Pahirya, Pargana Shivpur, District Varanasi. They have constructed their dwelling house which is still standing over the land in dispute and they are dwelling therein alongwith their family members. It is also submitted that the petitioners have no other suitable alternative accommodation in Varanasi City.
6. To support their contention it is also submitted that Varanasi Nagar Mahapalika has provided house number to them for the purposes of municipal taxes. Therefore, it is contended that till alternative suitable accommodation is provided to the petitioners in Varanasi City, the acquisition of the dwelling house alongwith appurtenant land to it is not only illegal but against the principles of social justice.
7. In support thereof, it is next contended that whole idea behind acquiring the land belonging to the petitioners and others is to provide houses to homeless citizens but by the present acquisition while acquiring their land for providing houses to homeless citizens, the petitioners will become homeless, which certainly is not the object of the scheme.
8. It is also contended that there was no urgency in the matter so as to dispense with the normal procedure for acquiring petitioners' land and directly invoking the provisions of Section 17 of the Act.
9. On these two grounds the notification referred to above is being assailed.
10. While filing their counter-affidavit, the respondents have taken the stand that so called house standing over the land in dispute is a tin-shed and same has been erected without any sanction from Varanasi Development Authority. In the counter-affidavit filed on behalf of Special Land Acquisition Officer (respondent No. 3), it has been stated that among the petitioners, only three of them i.e Kedar Nath, Vijay Kumar and Kashi Nath have their residential houses over the plot under dispute on an area of 0.04 acre only.
11. Relating to the second contention, while justifying the issuance of the notice it is contended that the world bank has advanced loan for such development to the development authority and this being a matter of urgency, rightly recourse to Section 17 of the Act has been taken. There is no illegality committed by the development Authority. The petition has no merit and is liable to be dismissed.
12. Before considering the point in issue as to whether dwelling house could be acquired alongwith appurtenant land, the definition of the word ‘land’ enumerated in Section 3-A of the Act has to be seen which reads as under—
“The expression “land” includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.”
13. In the above definition words “permanently fastened to anything attached to the earth” have got a wide import which includes soil, building, any charges on the land or other interest in it including superstructure, and therefore it is not the requirement of the law to mention separately the structure if any in the notification as the purpose of acquisition is to acquire the land but not superstructure standing on it.
14. The contention so raised by the learned counsel for the petitioners that for want of full descriptions of the superstructure standing on the land in dispute the notification issued under Section 4 of the Act looses its sanctity, has no force in as much as the notification under Section 6 of the Act is conclusive evidence of the fact that the land in question is needed for public Purposes i.e Pahirya Housing and Development Scheme.
15. The point in issue has been taken into consideration in a catena of decisions by the Apex Court. See, Smt. Somawanti v. State of Punjab . AIR 1963 SC 151., Chaturbhuj Pande v. Collector, Raigarh . AIR 1969 SC 255. and Bai Malimabu v. State of Gujarat . 1978 2 SCC 373.
16. Learned counsel for the petitioner with great vehemence to support his contention referred to a decision rendered in Bamandas Mukherjee v. State of West Bengal . AIR 1985 Cal 159., wherein it has been ruled that while acquiring dwelling house alternative accommodation should be provided to its occupants. This was a case where dwelling house was acquired for expansion of College and in that context, it has been held that vacant land cannot be equated with the residential building for the purpose of acquisition as it will render the occupants of that building homeless and this will be against the principles of social justice. If without making any alternative arrangement and without providing a lternative accommodation to occupants, the said acquisition is made, the same is likely to result into a great injury to them as they will be thrown out on the streets. Accordingly, it was held that acquisition of dwelling house cannot be made without providing alternative accommodation to its occupants.
17. The facts of the instant case are distinguishable with that of Bamandas Mukherjee (supra). In the instant case the very existence of the house is disputed, notwithstanding that in the counter-affidavit filed on behalf of the Development Authority it is admitted that only a tin-shed is there while counter-affidavit filed on behalf of the Land Acquisition Officer states that petitioners are residing therein.
18. On the other hand, the petitioner has no doubt stated that pucca construction is there and Nagar Mahapalika has allotted house number, but the house number has not been mentioned by the petitioner for the reasons best known to them. In the absence of providing material, it is difficult to hold that dwelling house of permanent nature is standing on the land in dispute.
19. Be that as it may, all the same even if there is no pucca house standing and only temporary tin shed is erected which is being used for dwelling purposes, the same cannot be lost sight of in view of acute housing problem in the city of Varanasi though the same cannot be an absolute rule on the face of Section 3-A of the Act.
20. In such cases it is expected of the Court to take judicial note of it that if occupants of the dwelling house are thrown out on the streets after acquiring their land and house, it will be impossible for them to have an alternative accommodation at a reasonable rent in these days. May be occupants are landlords or tenants of the house. Therefore, certainly in such cases making alternative suitable accommodation available to the occupants, is a must being in conformity with the principles of social justice.
21. In a democratic set up like ours, it is the welfare of the people and with this aim and object all the schemes are being launched. It is not that while providing homes to others, occupants of the land be deserted and made homeless. No doubt, the housing development scheme is for the benefit of the public at large but at the same time the interest of an individual cannot altogether be ignored.
22. it is true that interest of an individual can be sacrificed and ignored for the betterment of the society but this cannot be an absolute doctrine. Therefore even if there is a little truth in it that temporary shed is there which is being used for dwelling purposes, certainly the petitioners are entitled for alternative accommodation.
23. However, on this basis alone the proceedings of land acquisition cannot be quashed wherein larger interest of public would be served in acquiring the land and providing accommodation, and therefore it cannot be said that at the cost of others the petitioners have sacrificed their interest making them homeless. The fact remains that the land is being acquired to implement the scheme to subserve the purpose which is beneficial for public at large.
24. However, to get over the argument of the petitioners that the petitoners may not be made homeless, the Development Authority if directed to accommodate the petitioners on priority basis in the said scheme by providing suitable accommodation to them subject to payment of requisite price, would serve the purpose.
25. This will also be on the same footings as in Industrial policies wherein if land is acquired for industrial purposes one of the family members is accommodated and provided job in that very industry so as to redeem the loss sustained by the family on account of acquisition of their land. Accordingly, we direct the Varanasi Development Authority (respondent No. 4) to accommodate the petitioners in Pahirya Housing and Development Scheme by providing a suitable accommodation on priority basis subject to payment of requisite price by them irrespective of the fact that they have made application for allotment in time or paid registration fee etc. or not, but allotment shall be made in their favour on usual conditions mentioned above.
26. With the above direction, both the petitions are dismissed.
27. Petition Dismissed.
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