Chaudhury Rafiquir Rahman vs The State of Bihar and Another

N.L. Untwalia, J.—According to the petitioner''s case in this writ application, the land sought to be acquired by the Government under the Land Acquisition Act, 1894, (Central Act 1 of 1894) hereinafter called the "Act", is a waqf property, and he is the present Mutwalli of the Waqf. On the 26th March, 1966, a notification, a copy of which is Annexure "1" to the writ application, was issued by the Additional Collector, Purnea, u/s 4 of the Act, stating therein that it appeared to him that the land was required to be taken by the Government at the public expense for a public purpose, viz. for the construction of house under Holding Scheme Section. The total area of the land sought to be acquired is 52.20 acres. In the notification it was also stated:

In exercise of the powers conferred by Section 17(4) of the said Act the State Government have decided that in view of the urgency of the project, provisions of Section 5A of the said Act shall not apply.

It appeals that a declaration u/s 6 of the Act was made by the Additional Collector on the 20th June 1966. Thereafter a notice was served upon the petitioner''s authorised agent u/s 9 of the Act. Thereupon the petitioner filed an objection on the 31st October, 1966, a copy of which is Annexure "2" to the writ application. This objection was rejected by the Additional Collector by his order dated 16.12.1969, a copy of which is Annexure "3" to the writ application. The petitioner challenges the acquisition of the land in question on the following grounds:

(i) That no valid notification could be issued by the Additional Collector u/s 4 of the Act when it was a case where the power u/s 17(4) had been exercised by the State Government.

(ii) That the land sought to be acquired was neither waste nor arable. It was a part of homestead wherein was situated a house known as Narkatia Kothi.

(iii) That the notification was issued in the name of a dead person, Chaudhury Md. Hanif, who was at one time the Mutwalli of the waqf and no notice was served upon the petitioner or the Sunni Waqf Board.

I think, the first point urged on behalf of the petitioner is well-grounded on the basis of two decisions of a Bench of this Court of which I was a member and it must succeed. In that view of the matter, it is not necessary to decide either of the other two points urged on behalf of the petitioner.

In (1) Bokaro and Ramgur Vs. Additional Collector and Another, (Civil Writ Jurisdiction Case Nos. 604 and 1174 of 1969, decided on 16.2.1970.) the constitutional validity of Sections 4, 5A and 6 of the Act, as they stand amended by the Land Acquisition (Bihar Amendment) Act, 1960 (Bihar Act 11 of 1961) was attacked on certain grounds. While repelling this argument as a matter of construction I said in paragraph 14 at page 172, column 2 of the report:

It is to be pointed out that the Collector, even under the Bihar Amendment, has not been authorised to do away with the providers of Section 5A of the Act in accordance with Section 17(4). That being so, it is manifest that when a notification has been issued by the Collector u/s 4(1) an objection u/s 5-A will always lie and the order of the Collector will always be subject to revision by the State Government at the instance of the objector or any person interested in the land. Such safeguard being there, it is difficult to accept the argument put forward on behalf of the petitioner that Section 6 of the Act as it stands under the Bihar Amendment, is constitutionally invalid.

In (2) Dharampal Singh and others V. Shri A.K. Banerji and others (1970 Panta Law Journal Reports 416) C.W.J.C. No. 959 of 1969 decided on 4.3.1970), the point which directly fell for consideration was whether in a case where action was proposed to be taken u/s 17(4) of the Act, a notification u/s 4 of the Act could be issued by the Collector or the Additional Collector. Following the dicta of the earlier cases which were unreported till then, I said at page 421, column 2:

It was pointed cut that the Collector or the Additional Collector, who has been given power to issue notifications u/s 4 of the Act or to make a declaration u/s 6, has not been given power in cases of urgency to dispense with the application of Section 5A of the Act in accordance with Section 17(4). In other words. It was pointed cut that wherever a proceeding for acquisition of land is initiated by the Collector or the Additional Collector and not by the appropriate Government, the safeguard is to be found in the proviso to Clause (1) of Sub-section (2) of Section 5A of the Act as it stands amended by Bihar Act 11 of 1961. In the said proviso a power of revision has been given to the State Government either suo motu or on an application of any person interested in the land. That power is wide enough to go into the propriety of the notification issued by the Collector or the Additional Collector u/s 4 of the Act and to find out whether the land sought to be acquired by him is needed for a public purpose.

Then I further said at page 423, column 1:

It will hear repetition, however, to say that in cases of urgency it is only the State Government who can take action of issuing notification u/s 4 of the Act and dispensing with the provisions u/s 5A in exercise of their power u/s 17(4) of the Act. It is then and then only that after the issuance of the declaration u/s 6 the State Government can ask the Collector to take possession u/s 17(1) of the Act as it stands amended by Bihar Act 11 of 1961.

I further said at the same page in column 2:

If the State Government thinks that there is urgency for acquisition of the land to which the provisions of Section 17 can be applied, it is for them to issue the notification under Station 4 of the Act and the declaration u/s 6. As stated above, in the same proceeding exercise of power to issue notifications under Sections 4 and 6 by the Collector and to dispense with the requirements of Section 5A in exercise of power u/s 17(4) by different authorities is not legal and justified. If the State Government decided about the urgency at the stage when the notification u/s 4 is issued, they must also decide that the land is needed for a public purpose and then and then only they can dispense with the requirements of Section 5A which dispense with the revisional procedure in the matter of objection filed by a person interested in the land u/s 5A of the Act.

From the counter-affidavit filed on behalf of the respondents, it would appear that direction u/s 17(4) of the Act was issued by the State Government on 17.1.1966, as it appears from a copy of the order which is Annexure "A" to the counter-affidavit. In this order it is stated:

Whereas there is urgency for the acquisition of land described below which is waste and arable and is required for construction of house under Housing Scheme...........the Governor of Bihar is pleased to direct that the Collector of Purnea shall take action under Sub-section (1) of the said Section and that the provisions of Section 5A of the said Act shall not apply to the said acquisition.

It is to be pointed out that in this order it is not said that the State Government is of opinion that the purpose for which the land is sought to be acquired is a public purpose. Moreover, caution ought to have been taken to say whether the land is waste or arable. The same land cannot be both. It may well be that a portion was waste and a portion was arable, but that does not seem to be the statement of fact even in the counter-affidavit, according to which the whole land ought to be acquired was arable, a fact which is disputed by the petitioner. What, however, I want to point out is that while exercising power u/s 17(4) of the Act, care must be taken to describe the land as to whether it is waste or arable, and if both, which portion is waste and which portion is arable. Sub-section (1) of Section 17 empowers the State Government to direct the Collector to take immediate possession of the land sought to be acquired even before the preparation of the award. I have no doubt in my mind that such a direction can be given to the Collector where the State Government have decided to issue the notification u/s 4 of the Act to acquire the land for a public purpose, Similarly, the exercise of the power under Sub-section (4) of Section 17 refers to the provisions of Sub-section (1)(sic) and Sub-section (2). That power also can be exercised when the notification u/s 4 is issued or proposed to be issued by the State Government. Taking recourse to Section 17 of the Act and allowing the Collector or the Additional Collector to issue notifications under Sections 4 and 6, as the said provisions stand under the Bihar Amendment, to my mind, is incongruous and unreasonable. In view of the decision of the Supreme Court in a case which is popularly known as Bank Nationalisation case, constitutional validity of the relevant provisions of the Act under the Bihar Amendment will be in jeopardy. The exercise of the power u/s 17 of the Act to my mind is integrated with the exercise of the power both under Sections 4 and 6.

For the reasons stated above, I allow this writ application, set aside the notification dated the 26th March 1966 (Annexure "1") and quash the proceeding for acquisition of the land in question. In the circumstances, I shall make no order as to costs.

Akbar Husain, J.

I agree.