Brij Kishori Devi vs State of U.P.and Others

Palok Basu, J.—Smt. Brij Kishori Devi has filed this writ petition under Article 226 of the Constitution of India with the prayer that the notification dated 13th of August, 19% under Section 4 of the Land Acquisition Act as amended in State of Uttar Pradesh (for short Act) as also the notification under Section 6(2) of the Act dated 14.10.1996, Annexure 2 to the writ petition be quashed and mandamus should issue declaring the provisions of subsections (1), (2) of Section 4 and Section 17 as ultra vires the Constitution of India.

Shri Ram Niwas Singh assisted by Shri Amrendra Singh has been heard at great length at the time of admission of this writ petition. The arguments have been noted with admiration but in spite of an able advocacy the points cannot be decided in favour of the petitioner for the reasons hereinafter mentioned.

The first argument advanced by Shri Singh is that the notification under Section 4 is bad as it did not specifically mention that the Government or the Governor was of the opinion that immediate possession of the land is necessary. For this reason it was said that the notification is bad.

This argument has to be rejected for the following reason. The instant notification says:

"The Governor,, being of the opinion that the provisions of subsection (1) of Section 17 of the said Act are applicable to the said land in as much as the said land is urgently required for the public purpose and that in view of the pressing urgency it is as well necessary to eliminate the delay caused by an enquiry under Section 5A of the said Act the Governor is further pleased to direct, under subsection (4) of the Section 17 of the said Act that the provisions of Section 5A shall not apply".

Therefore the aforesaid suggestion and the opinion expressed through the notification is enough to rebut the arguments advanced by Shri Singh.

It may be convenient to deal with another factual argument. It was said that there is land available to the State of Uttar Pradesh through Land Ceiling process and since enough area is already declared as surplus area, the petitioner can always insist that the Government may use those surplus area land and not go in for the acquisition proposal.

It may be mentioned here that whenever a notification under Section 4 is issued it is based on the satisfaction and the opinion of the Government that the land is required for public purpose or for company. In the instant case it is admittedly a public purpose for which the land in question is needed for, a new district has already been created at Padrauna, it having been carved out from areas of district Gorakhpur, Basti and Deoria. In the absence of District headquarter enormous problems should have accrued in the daytoday running of the administration. Therefore, it can be said without hesitation that the instant public purpose is a well demonstrated public purpose and the necessity to take possession is writ large on the face of the public purpose itself.

The next argument advanced by Shri Singh was that the dispensing with Section 5A of the Act is not possible by a bare notification. In case there was such a need, method of calling report of the Collector is available. That the Government may not be justified in immediate doing away with the right under Section 5A of the Act. In this connection it was reemphasised that since the surplus land is not very far of from the proposed area to be acquired, which is more than 304 acres, the action must be dubbed and quashed as being violative of the powers under the Act.

As noted above the Government should be well aware of what land is available to it, and in spite of it, when additional land is acquired for a particular public purpose its need and necessity as it is, should be upheld unless some individual mala fide is alleged. In the instant case, therefore, once it is held that the Government having knowledge of all facts and circumstances declares the establishment of the District headquarters as public purpose, it is beyond controversy that it will be an exercise of power well within the four corners of the provisions of law under the Act. This argument of Shri Singh therefore also fails. The last argument was that subsection (1) of Section 17 is ultra vires Article 14 of the Constitution of India inasmuch as there is no guidelines fixed for declaring in what type of cases or circumstances "in case of urgency" can be determined by the appropriate Government or the Collector as the case may be. It was seriously contended that if a close look is had on the provisions of subsection(2) of Section 17 one would notice the contingency which have been made the basis of action in sub section (2) for taking possession, which type of guideline is not available under subsection (1) of Section 17.

That the argument is soothing to the ears at the first instance is to be admitted. But a deep thinking found the fallacy inherent in it. Subsection (2) has laid down the contingency for immediate "entering upon and taking possession of such land." This subsection deals with imperative emergency. One may not be wrong in saying that even the guidelines may indicate that types of imperative emergency may not be definable always for, they may vary from time to time, citizen to citizen and place to place such as Uttarakhand earthquake, Andhra Pradesh Cyclone and Assam floods. That subsection (2) is closer to the theory known as law of necessity is apparent.

As compared to the provisions of subSection (2), SubSection (1) says that Collector may "take possession of any land as needed for the public purpose.'' The distinction is obvious. While subsection (1) permits "taking possession of any land" for public purpose, subsection(2) permits entering upon and taking possession" of such land. Therefore, drawing analogy of the language of subsection (2) for interpreting sub section (1) of Section 17 of the Act is not permissible.

It may be stated here that in view of the decisions of the Hon''ble Supreme Court in a series of decisions where the vires of the land acquisition has been upheld whether it be the case of Kashi Vtdyapith, 1996 (7) JT 98; Ajay Krishna Singhal ,1996 (7) JT301; or The Naihati Municipality [1996 (7) JT 3591; the question is no more resintegra. And, therefore though some foundation has been sought to be laid by averments made in paragraphs 19,20 and 21 in the writ petition, the averments do not satisfy the test on the basis of which Section 17, subsection (1) or subsection (4) can be declared ultra vires the Constitution of India or Article 14 thereof.

Before parting, it may be mentioned that Shri Singh has placed reliance on AIR 1977 SC183 and on AIR 1989 SC 83 and AIR 1994 SC 81. For facts stated in these three judgments no support can be found to the arguments advanced by Shri Singh in this writ petition.

No other argument have been advanced. The writ petition consequently fails and is summarily dismissed.