Haripada Mandal and Others vs State of Bihar and Others

B.P. Singh, J.—The petitioners herein claiming to be the owners of the lands sought to be acquired under the provisions of the Land Acquisition Act (hereinafter referred to as "the Act"), have preferred this writ application praying that the notification issued u/s 4 of the Act and u/s 17(4) of the Act published in the gazette on 1-1-1978 be quashed.

The writ application was filed on 25-2-1981 and was admitted for hearing on 10th Mar. 1981. An order was passed staying further proceedings in the Land Acquisition case pending disposal of this writ application.

The impugned notification u/s 4 of the Act was published in the District Gazette on 1-1-1978. The total area sought to be acquired is 15.82 acres, out of which 15.52 acres was described as being arable land while the remaining 0.30 acre was described as banjar land in village Seraidhela. The public purpose for which the land is sought to be acquired is for construction of office and residential complex for the Mines Safety Department of the Government of Bihar and its employees. The cost of the acquisition is to be borne by the Government. The latter part of the same notification mentions that since the Government of Bihar was satisfied that the land was waste and arable land and its immediate acquisition was essential, it was directed u/s 17(4) of the Act that the provisions of Section 5A of the Act shall not apply to the acquisition in question. The District Land Acquisition Officer of the Government of Bihar as well as the staff of the department of Mines Safety were authorised to enter upon the lands for the purpose of survey etc. u/s 4(2) of the Act.

3A. The petitioners have not challenged that the acquisition is for a public purpose, but the acquisition is sought to be challenged on other grounds. Mr. Debi Prasad, learned counsel appearing on behalf of the petitioners has raised five contentions in support of the writ petition. He firstly submitted that the lands in question are not arable or waste lands and hence no direction could be made u/s 17(4) of the Act dispensing with the provision of section 5A of the Act. Secondly he contends that no notification could be issued u/s 4 of the Act together with a direction u/s 17(4) of the Act", and hence the entire proceeding is invalid. Thirdly he contends that in view of the proviso to Section 6 of the Act, no declaration u/s 6 of the Act can be made after three years from the date of publication of the notification u/s 4 of the Act. Fourthly, he submitted that in the facts and circumstances it was apparent that alternative lands were available for acquisition, but in spite of that the lands of the petitioners are sought to be acquired which is illegal. Lastly he has contended that successive notifications in respect of the same lands cannot be issued as this established mala fide on the part of the acquisitioning authority. It was also submitted that no steps whatsoever were taken for a period of over three years after the date of publication of the notification u/s 4 of the Act, and hence invoking of the provisions of Section 17(4) of the Act was a colourable exercise of power as there was no urgency whatsoever.

Sri N.K. Prasad, learned counsel appearing on behalf of the respondent 3 and Shri Narayan Roy, G.P. 2 appearing on behalf of the State, have refuted all the contentions raised by the petitioners. It has been contended by Mr. N.K. Prasad that the writ petition ought to be dismissed on the ground of delay alone.

Mr. Prasad appearing on behalf of respondent No. 3 contended that the notification u/s 4 of the Act together with a direction u/s 17(4) of the Act was published as early as on 1st of Jan. 1978. As the instant writ petition was filed on 25th Feb. 1981, i.e. almost after three years and two months, he contended that on the ground of delay atone this writ application ought to be dismissed. He has placed reliance upon a judgment of the Supreme Court in Hari Singh and Others Vs. State of U.P. and Others, in which it was held that the writ application filed in July, 1982 questioning the notification issued in Jan. 1980 after delay of about two and a half years was liable to be dismissed on the ground of laches alone. The Supreme Court held that in such a case any interference after two and half years with the acquisition proceeding was likely to cause serious public prejudice. It is true that in the instant case as well, writ petition was filed more than three years after the publication of the notification u/s 4 of the Act. However, considering the fact that one of the major grounds of challenge is that no declaration u/s 6 of the Act was issued within the prescribed period of three years, the writ petition cannot be dismissed on the ground of delay since the said ground could be urged only after the expiry of the period of three years.

The question as to whether the lands in question are arable or waste lands is essentially a question of fact. However, if there is material on record to establish conclusively that the lands in question are not waste or arable lands, the direction may be questioned on the ground that Section 17(4) of the Act had no application, and the provisions of Section 5A of the Act could not be dispensed with. It has been stated in the writ petition that the lands are not waste or arable lands since there is a Basti consisting of about ten houses within the land proposed to be acquired and there is also a school over the same. A portion of a big tank is also included within the area to be acquired. In the counter affidavit filed on behalf of the respondents, it is stated that prior to the notification u/s 4 of the Act, there was not a single house over the land in question and hence the provisions of Section 17(4) of the Act are applicable. It is firmly asserted that the lands in question are arable and waste lands. It is further stated in para 10 of the counter affidavit that there is no village or house, school or tank over the lands proposed to be acquired. There is a school and tank in the vicinity but the same are outside the area proposed to be acquired. The sketch map enclosed with the writ petition was stated to be incorrect. Mr. Prasad has further contended that a mere general and vague assertion in the writ petition that houses and school are situate over the lands in question is not enough. No particulars have been disclosed as to the plots over which the houses are situate or over which the school is located. No particulars have been given as to when such houses were constructed or the school established. In the absence of such particulars, a mere vague assertion that the lands are not waste or arable lands, is not sufficient to record any finding in favour of the petitioners. There is considerable force in the objection raised on behalf of the respondents. Apart from the fact that there is categoric denial of this fact, even other documentary evidence on record produced by the petitioners themselves do not support their case.

In this connection reference may be made to Annexure-3 which has been filed by the petitioners to show that earlier in the year 1969 as well, the question relating the acquisition of the very land in question was being considered. Annexure-3 is an order of the Deputy Commissioner, Dhanbad, in which he has mentioned that his local inspection revealed that there was some agricultural land included in the area proposed for acquisition. He further mentioned in his order that though high class paddy lands form only a small portion of the land, the proposal could be re-caste, so as to avoid cultivated land in the lower ridge. What is significant is the fact that in this report it is nowhere mentioned that there was any construction over the lands in question. Annexure-4 is another order of the Additional Deputy Commissioner, Dhanbad, dated 12-6-1975 in which he has mentioned about the inspection of the land made by him. Even this report does not show that there was any construction or tank or school over the lands proposed to be acquired. These documents filed by the petitioners themselves do not support their case that the lands in question are not waste and arable lands. Moreover in the absence of particulars, the more vague and general averments made by the petitioners to the effect that the lands are waste and arable lands cannot be accepted. I, therefore, hold that the petitioners have failed to establish that the lands in question are not waste and arable lands. Consequently, Section 17(4) of the Act was applicable to the instant case and it was competent for the Government to issue direction u/s 17(4) of the Act dispensing with the provisions relating to filing of objections u/s 5A of the Act.

It was then contended on behalf of the petitioners that in instant case, the notification issued on 1st of Jan. 1978 was a composite notification u/s 4 as well as a direction u/s 17(4) of the Act. It has been submitted on their behalf that even though it is permissible to issue a notification u/s 4 of the Act, and a direction u/s 17(4) of the Act on the same day, it is not permissible to issue one notification incorporating both. The Act presupposes the existence of a notification u/s 4 of the Act before a direction u/s 17(4) of the Act is made and consequently it follows that the notification u/s 4 of the Act must be prior in point of time than the direction u/s 17(4) of the Act. Reliance has been placed upon the judgment of the Supreme Court reported in Smt. Somavanti and Others Vs. The State of Punjab and Others, . In that case the Supreme Court was considering a case where notification u/s 4 and 6 of the Act were published on the same date, i.e. Aug. 25, 1961. However, it was noticed that the preliminary declaration u/s 4(1) of the Act was made on Aug. 18, 1961, and a declaration as to the satisfaction of the Government on Aug. 19, 1961, though both of them were published in the gazette on the same day. The court observed that in the sequence of events a notification u/s 4 must precede the declaration u/s 6 of the Act. Where objections have to be invited and considered u/s 5A of the Act, the observance of the procedure u/s 5A is interposed between the two notification under Sections 4 and 6 of the Act. But where Section 5A of the Act is not in the way, there is no irregularity in publishing those notifications on the same day. No doubt, in the Supreme Court case, the Court was concerned with simultaneous publication of the notification and declaration under Sections 4 and 6 of the Act respectively. I am, however, of the view that the reasoning supports the case of the respondents rather than the case of the petitioners.

In the instant case, a common notification was issued u/s 4 and 17(4) of the Act. The judgment of the Supreme Court lays down that if the Government takes a decision to make such a notifiction u/s 4 of the Act and, thereafter takes two further decisions, that is, to dispense with compliance with the provision of Section 5A and also to declare that the land comprised in the notification is, in fact, needed for public purpose, there is no departure from any provision of the law, though the two notifications are published on the same day. The principle clearly deducible from the aforesaid observation of the Supreme Court is that what is relevant and material is the fact that the Government must take a decision first u/s 4 of the Act and then follow it up by taking a decision u/s 17(4) of the Act and thereafter u/s 6 of the Act. The decision must be taken in this order, and it is not the requirement of law that the notifications must be published in that order, or that they cannot be published simultaneously. Shri N.K. Prasad submitted that there is no material to establish that the Government had not first taken a decision to issue a notification u/s 4 of the Act and thereafter took a decision to issue a direction u/s 17(4) of the Act. The mere fact that a common notification was published did not by itself vitiate the proceeding. If the two decisions were taken separately one after the other and a common notification was issued, no illegality was committed. If two notifications could be published simultaneously, no objection can be taken to publishing two decisions in the same notification. Insistence upon two separate notifications is a mere hypertechnicality. In this connection he has relied upon the decision of the Supreme Court in the case of Babu Singh and Others Vs. Union of India (UOI) and Others, and the judgment of the Allahabad High Court in the case of Charan Singh and Others Vs. Govt. of Uttar Pradesh and Others, . In the case of Charan Singh (supra) S.N. Dwivedi, J. as he then was, observed :

Smt. Somavanti and Others Vs. The State of Punjab and Others, is thus an authority for the propositions that the notification under Sections 4 and 6 may be published simultaneously. They can be published simultaneously only when the notification u/s 4 is conjoined with the order under Sub-section (4) of Section 17. Accordingly it seems to me that Smt. Somavanti and Others Vs. The State of Punjab and Others, is also an authority for the proposition that a notification u/s 4 may be published along with an order under sub- Section (4) of Section 17. All that is necessary is that the Govt. should first take a decision to make a notification u/s 4 and then take another decision to make an order under Sub-section (4) of Section 17. If I am interpreting the decisions in Smt. Somavanti and Others Vs. The State of Punjab and Others, aright and I trust that I am not making a mistake, then I find it difficult to reconcile the two decisions of this Court with the decision in Smt. Somavanti and Others Vs. The State of Punjab and Others, . And there is little doubt that in such a situation, I should follow the decision in Smt. Somavanti and Others Vs. The State of Punjab and Others, . The second point therefore does not carry through."

The Allahabad High Court was considering a case where notification u/s 4 of the Act was published along with an order under Sub-section (4) of Section 17 of the Act. The facts of that case, therefore, are identical with the facts of the instant case and with respect I agree with the reasoning of the learned Judge. I, therefore, hold that there is no illegality in issuance of the notification under Sub-section (1) of Section 4 coupled with a direction under Sub-section (4) of Section 17 of the Act. All that is necessary is that the Government must first take a decision to make a notification u/s 4 and then take another decision to issue a direction under Sub-section (4) of Section 17 of the Act. It is not the case of the petitioners that this was hot done in the instant case. The second submission of Mr. Debi Prasad must, therefore, be rejected.

It was then contended on behalf of the petitioners that in view of the proviso to Section 6 of the Act, no declaration u/s 6 of the Act could be made after three years from the date of publication of the notification u/s 4(1) of the Act. In the instant case, notification u/s 4(1) was issued on 1st of Jan. 1978 and the notification u/s 6 of the Act had not been issued till the date on which the writ petition was filed i.e. 15-2-81, after more than three years had lapsed. It was therefore, not open now to the Government to issue a declaration u/s 6 of the Act. On the other hand it was contended by Sri Prasad appearing on behalf of respondent 3 that the proviso to Section 6 of the Act applies only to case where normal procedure is to be followed. In a case where a direction is made u/s 17(4) of the Act, the State is entitled to make the declaration u/s 6 of the Act at any time. Title vests in the State as soon as possession is taken, and consequently declaration u/s 6 can be made at any time.

On behalf of the petitioners reliance was placed upon a judgment of the Andhra Pradesh High Court in the case of A.N.P.S. Co-operative House Building Society Ltd. v. K. Balarami Reddy AIR 1984 AP 333. That judgment proceeded in the special facts of that case. In that case, in view of the provision of the Land Acquisition (Andhra Pradesh Amendment and Validation) Act, 1983, where a notification was made u/s 4 of the Act and enquiry u/s 5A was dispensed with, possession was required to be taken within three months of the date on which the enquiry u/s 5A was disposed with. In that case, it was found that the possession was not taken within three months of the date on which enquiry u/s 5A was dispensed with, and hence it was held that the acquisition was bad. I am of the view that the judgment of the Andhra Pradesh High Court proceeds on the special facts of that case, particularly in view of the amended provisions of the Land Acquisition Act as applicable to the State of Andhra Pradesh. No such question arises for determination in the instant case.

The moot question still remains to be decided namely, whether acquisitions of land under the Land Acquisition Act can be validly made without there being a declaration u/s 6 of the Act, even in a case where a direction is made u/s 17(4) of the Act dispensing with the requirement of Section 5A of the Act. Shri N.K. Prasad appearing on behalf of respondent 3 contends that in a case where a direction has been made u/s 17(4) of the Act, no further notification u/s 6 of the Act is necessary, and if possession has been taken by the authorities concerned the acquisition is complete. On the other hand Shri Debi Prasad appearing on behalf of the petitioners contends that there can be no valid acquisition unless the notification u/s 4 of the Act is followed by a declaration u/s 6 of the Act in all cases.

I am of the view that the submission of the petitioners is well founded. The scheme of the Act is that after a notification is published u/s 4 of the Act, objections, if any, have to be considered u/s 5A of the Act. After considering the objections, a declaration has to be made u/s 6 of the Act, and thereafter further steps have to be taken for publishing of the award taking over of possession etc. Mr. N.K. Prasad contends that this may be the normal procedure but in a case where a direction is made u/s 17(4) of the Act, since there is no need for inviting objections and considering the same, there is also no necessity for making a declaration u/s 6 of the Act. Alternatively he contends that a declaration u/s 6 of the Act can be made "at any time" as provided by Section 17(4) of the Act, and proviso to Sub-section (1) of Section 6 of the Act will have no application.

The submission that in a case where a direction is made u/s 17(4) of the Act, no declaration is required to be made u/s 6 of the Act must be rejected. Section 17(4) of the Central Act itself provides that in a case where a declaration may be made under the aforesaid proviso "a declaration may be made u/s 6 of the Act in respect of the lands at any time". Section 17 of the Act as amended by Bihar Act 4 of 1961 in its application to the State of Bihar stands amended and provides as follows:

"(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the provisions of Section 5A shall not apply where the appropriate Government so directs or where possession of land has been taken with the consent of the person interested."

There is nothing in Section 17(4) of the Act as applicable to the State of Bihar, which either expressly or by necessary implications excludes the application of Section 6 of the Act. All that it provides is that an order passed under Sub-section (4) of Section 17 of the Act may exclude the application of Section 5A of the Act, and also provides that in a case where possession of lands has been taken with onsent of the persons interested, provisions of Section 5A of the Act shall not apply. This is not a case where the possession of lands had been taken wjth consent of the persons interested. Thus, there is nothing in sub- Section (4) of Section 17 of the Act to exclude the applicability of Section 6 of the Land Acquisition Act. I, therefore, hold that in a case where a notification is published u/s 4 of the Act and a direction is made u/s 17(4) of the Act dispensing with the requirement of considering objections u/s 5A of the Act, it is still necessary for the State Government to issue declaration u/s 6 of the Act. Since the intermediate stage of considering the objections u/s 5A of the Act is avoided, a declaration u/s 6 of the Act can be made at any time, meaning thereby, any time after notification u/s 4 of the Act. In substance, having made a notification u/s 4 of the Act, and a direction u/s 17(4) of the Act, the State Government can issue a declaration u/s 6 of the Act forthwith. It is also not correct to contend that since such a declaration be made "at any time", the proviso to Sub-section (1) of Section 6 of the Act prescribing a period of three years for making a declaration u/s 6 of the Act, does not apply. The proviso must apply even to a case where a declaration u/s 6 of the Act is made after a direction has been madeunder Section 17(4) of the Act. In a normal case, such a declaration can be made only after considering objections u/s 5A of the Act, but in a case where a direction is made u/s 17(4) of the Act, a declaration can be made u/s 6 immediately. It enables the State Government to make a declaration u/s 6 of the Act even earlier, but it does not provide any justification for making such declaration later than three years from the date of publication of notification u/s 4 of the Act.

I have, therefore, no hesitation in holding that in every case of acquisition under the Land Acquisition Act, a notification u/s 4 of the Act must be followed by declaration u/s 6 of the Act, notwithstanding the fact that in a given case a direction has been made u/s 17(4) of the Act dispensing with the requirement of Section 5A of the Act.

In the instant case admittedly no - declaration u/s 6 of the Act was made. The notification u/s 4 of the Act was published in the gazette on 16-1-1978. Three years had expired when the writ application was filed on 25-2-1981. In view of the proviso to Section 6(1) of the Act, a declaration cannot now be made u/s 6 of the Act. The acquisition proceeding, therefore, cannot be completed, and consequently it must be held that no acquisition can be made pursuant to the notification dt. 1-1-1978 issued u/s 4(1) of the Act. In these circumstances, there is not option but to quash the impugned notification dt. 16-1-1978 issued u/s 4 of the Act.

There is one other ground on which the entire acquisition proceeding has to be quashed. As stated earlier, the notification u/s 4(1) of the Act was published on 16-1-1978 together with a direction u/s 17(4). It is now well settled that the valuable right given to the land owners to object against the acquisition u/s 5A of the Act, can be taken away only in genuine case of urgency. The power to issue direction u/s 17(4) of the Act, must be exercised with caution and in genuine cases or urgency when it is felt that the nature of urgency is such that it is not practicable to invite and consider objections u/s 5A of the Act. It is also well settled that if it is established that there was really no urgency and that making of a declaration u/s 17(4) of the Act was merely a colourable exercise of power for ulterior reasons, the same has to be struck down. It is not necessary for me to refer to the large number of decided cases on this point. But in fairness to the counsel appearing on behalf of the petitioners, I must refer to the judgment of the Punjab and Haryana Court in the case of Radhey Sham Gupta and Others Vs. State of Haryana and Others, cited by him. It was held in that case that inordinate delay in completion of the proceedings under the Act may at times vitiate the proceedings as they become tainted with colourable exercise of power. Such delay may indicate that initiation of the original proceedings, far from being directed to an immediate or foreseeable public purpose and its execution was but a device to misuse the provisions of Section 4 of the Act and peg down the prices of lands.

In the instant case, it has been averred in para 18 of the writ petition "that though the notification has been issued in 1978, up till now verification has not been made regarding the ownership of the land and notification u/s 6 of the Act has not been issued." In Reply to the said avernment in the writ petition, respondent No. 3 has stated in his counter-affidavit in para 17 thereof that "it is stated that the action is not mala fide and the land acquired earlier are for different pur poses and the notification has been issued for the public purpose". So far as the counter-affidavit of the State is concerned, in para 21 thereof, it is stated "that with regard to the statements made in paras 18 and 19 of the writ application, it is stated that these need no comments."

It is, therefore, quite apparent from the pleadings that no steps whatsoever has been taken for (sic)r three years after publication of the notification u/s 4(1) of the Act. It has not been stated either by the State of Bihar or respondent 3 that in view of the urgency, immediate steps were taken to survey the lands or to take possession thereof. Admittedly, no notification u/s 6 of the Act has been made. While it is true that after order of this Court dt. 10th Mar., 1981, staying further proceedings in the Land Acquisition case, there was no question of taking any further steps. But this order was passed more than three years after the publication of the notification u/s 4(1) of the Act coupled with the direction u/s 17(4) of the Act. During this period of three years, admittedly, no further steps were taken in regard to the acquisition of the lands in question. This clearly establishes that there was really no urgency in the matter and direction u/s 17(4) of the Act was made in a mechanical manner without application of mind, otherwise, it does not stand to reason that in a case of urgency, neither the State of Bihar nor respondent 3, for whose benefit the land was sought to be acquired, would sit idle, and take no steps whatsoever. Obviously the lands are sought to be acquired with a view to reserve the same for any development that may take place in the distant future. There is, therefore, no doubt that the exercise of power in making a direction u/s 17(4) of the Act was a colourable exercise of power unrelated to the existence of any urgency for the acquisition of the lands in question.

15-16. Sri N. K. Prasad raised a technical objection against taking into consideration the averment made in para 18 of the writ application is supported by an affidavit wherein it is stated that the contents of the aforesaid paragraph are by way of submission. While it is true that the factual averments must be affirmed as being true to knowledge or true to information derived from the records, considering the fact not much care is bestowed upon such matters, it would be impossible to deal with majority of cases if this technical objections were to besustained. In the instant case itself, counter-affidavit of respondent 3 whom Shri N. K. Prasad represents, states that "the contents of paras 3 to 18 are true to my knowledge and derived from the relevant records of this case, while I believe to be true". The verification of the affidavit in this manner is also improper since the verification is of a general nature and it does not specify as to which paragraphs are based upon knowledge and which paragraphs are based on information derived from the records of the case. This is only to demonstrate the manner in which affidavits are verified in this part of the country.

I, therefore, reject the technical objection raised by respondent 3 in this regard. There is nothing in the counter-affidavit of either State of Bihar or respondent 3 to suggest that after publication of the notification u/s 4(1) of the Act, any steps were taken under the Act for completing the acquisition proceeding.

In view of my above finding it is not necessary to consider in detail other submissions of the petitioners, namely, that issuance of successive notifications in respect of the same lands amounted to mala fide exercise of power of the acquisitioning authority, and that in view of the fact that alternative lands were available for acquisition, there was no justification for acquiring the lands of the petitioners. However, I may briefly dispose of these points as well. The question as to the suitability of the lands for a particular purpose is a matter which the State Government has to decide on the basis of the facts and circumstances of each case. In the instant case, there is clear averment by respondent No. 3 in his counter-affidavit that the other lands to which reference has been made by the petitioners were not considered suitable for the purpose for which the lands were sought to be acquired. Various factors have been mentioned which weighed with the State of Bihar and respondent No. 3 in selecting the lands in question for acquisition. This is essentially a question of fact and in the circumstances of the instant case, I do not find any reason to hold that in selecting the lands in question there was any illegality or irregularity.

The other question, namely, that in the past as well, these lands were sought to be acquired but were given up for one or the other reason, and therefore, their acquisition in the instant case was bad, must be rejected in the facts and circumstances of the case. It appears from the counter-affidavit as well as the material placed in the instant petition, that the earlier acquisition had to be given u p in view of the fact that the declaration u/s 6 of the Act had not been made within the prescribed period of three years. I find no reason to hold that renotifying the lands in question, in the circumstances, amounted to mala fide exercise of power. The submission must, therefore, be rejected.

In the result, I hold that the notification issued u/s 4(1) of the Act must be quashed on the ground that no declaration was made u/s 6 of the Act during the period of three years prescribed by the proviso to sub-section (1) of Section 6 of the Act. Since no declaration u/s 6 was made within the prescribed period, the acquisition cannot be completed pursuant to issuance of notification under Sub-section (i) of Section 4 of the Act. Consequently the notification dt. 1-1-1978 issued u/s 4(1) of the Act must be quashed. I also hold that issuance of the direction u/s 17(4) of the Act was a colourable exercise of power, since the facts and circumstances of the case indicate that there was no real urgency, as no steps whatsoever were taken for a period for three years after issuance of notification u/s 4(1) of the Act. In this view of the matter, the entire acquisition proceedings initiated by issuance of notification u/s 4(1) of the Act published in the gazette on 16-1-1978 is quashed. The writ application is accordingly allowed with costs which I quantify at Rs. 2,000/-.