Khazan Singh and others vs The President of India and others

P.D. Sharma, J.—The facts giving rise to this writ petition under Articles 226/227 of the Constitution of India briefly recapitulated are these. The President of India, respondent No. 1 in exercise of the powers conferred by section 4 of the Land Acquisition Act, l894, hereinafter called as the Act, issued notification dated 10th August, 1966, copy annexure ''A'', to the effect that land measuring 115.69 Acres situate in village Majessar Hadbast No. 79, Tehsil Ballabgarh, district Gurgaon, was likely to be acquired at the public expense, for planned development of eastern portion of sector No. 24 in Ballabgarh Faridabad Controlled Area. It was further provided that u/s 17 of the Act on grounds of urgency, i.e. the pressing need for more industrial area within Ballabgarh Faridabad Controlled Area, the provisions of section 5-A of the Act would not apply in regard to the said acquisition. On 11th August, 1966, respondent No. 1 in exercise of the powers u/s 6 of the Act by notification, copy annexure ''B'', directed that the Land Acquisition Collector, respondent No. 3, shall proceed to take possession of the land. The petitioners who owned different portions of the acquired land have prayed for quashing of these notifications inter alia on the following grounds:

(a) That special powers in cases of urgency exercisable by respondent No. 1 u/s 17 of the Act, relating to taking of possession before the award of compensation is made by the Collector under the provisions of section 11 of the Act and to dispense with an enquiry and healing objections of the persons interested as enjoined by section 5-A of the Act, could under the provisions of the Act as originally enacted be exercised only in respect of lands described in Subsections (1) and (2) of section 17;

(b) That the powers under sub section (l) of Section 17 of the Act could be exercised by respondent No. I only in respect of waste or arable land as laid down therein and not with respect to land on which pucca residential houses are standing;

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(e) That legally and under the provisions of the Act even if only a part of the land notified for acquisition is waste or arable and the rest is not as in the instant case, a notification u/s 17(4) of the Act dispensing with compliance with the requirements of Section 5-A of the Act would wholly invalid, as recently held by the Supreme Court in 1966 A L.J. 1 (S.C.);

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(g) that the land owned by the petitioners Nos. 6, 9 and 10 and comprised in killa Nos. 16 and 6/2 of rectangle No. 65 and other land located in rectangle No. 65 and yet other land located in rectangles Nos. 49, 50, and 57 and owned by Sardara Singh and Kachera right holders of village Majessar which is included in the area notified for acquisition under notifications (vide annexure ''A'' and ''B'') is neither waste nor arable land and, therefore, the impugned notification (vide annexure ''A'' and ''B'') are void, invalid, illegal, without jurisdiction, unconstitutional and ultra vires the pro visions of the Act and the Constitution as recently held by their Lordships of the Supreme Court in 1966 A.L.J. 1(S.C.);

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Shri S.N. Bhanot, Director Urban Estates, Town and Country Planning, Haryana, on behalf of respondents in his written statement pleaded that a joint writ petition by 22 different land-owners was not competent as each of the petitioners had to contend and prove that his land did not fall within the purview of section 17(1) of the Act and that Narain Singh son of Chuni, petitioner No. 22, was not owner of any part of the land which had been acquired, that petitioners Nos. 6 to 10 only had one small pucca chappar and a loom over the tube-well, while their residential houses were located in the village abadi and that reference of Sardara Singh and Kacheru, landowners was irrelevant as they had made no complaint whatsoever against the acquisition of their land and were not party to the writ petition. He further explained that there was no residential he use in the acquired land, which was purely agricultural and fell within the definition of the term ''waste and arable land''. According to him, the land owners had been paid adequate compensation for the acquired land and also allowed 15 per cent compulsory Acquisition charges. The possession of the land in question was taken on the day the award was announced and compensation offered to the land owners out of whom 65 including Ram Sarup son of Randhir Singh and Vijay Ram son of Ganga Parshad, two of the petitioners had also accepted the same.

The preliminary objection raised by the defendants that the petitioners could not have filed a joint writ petition is hardly of any substance. In this connection reference may be made to Stale of Punjab and another v. Nauhar Singh and others ILR 1964 P&H. 38, which laid down that -

Where a notification is issued for the acquisition of land in a particular village, all or any of the persons affected by the notification can jointly file a petition challenging the validity of the notification.

The petitioners did mention in their writ petition that sections 17(1) and (4) are ultra virus the Constitution but this point was not pressed at the time of the arguments and rightly too in view of the decision of the Supreme Court in Ishwarlal Girdharilal Joshi etc. v. State of Gujarat and others 1967 S.C.N. 9 531.

The petitioners assailed the propriety of the two notifications solely on the allegations that permanent and pucca residential and dewelling houses existed on a part of the land owned by petitioners 6, 9 and 10 and another part belonging to Sardara Singh; Kacheru and others light holders which had been acquired. The respondents in their written statement admitted to the extent that petitioners 6 to 10 had only one small pucca chhappar and a room over the tube-well while their residential houses were located in the village. As regards Sardara Singh nd Kacheru it was mentioned that they had not made any complaint whatsoever against the acquisition of their land and as such the existence of buildings or otherwise on their part of the land could hardly be availed of by the petitioners in their attack on the two notifications. From the material on the record it is difficult to say as has been maintained by the petitioners that petitioners Nos. 6, 9 and 10 over the art of their land had built their pucca and residential houses. What an be taken into consideration is that they had one small pucca chhappar and a room over their tube-well but this hardly changes the character of the entire land owned by the petitioners which undoubtedly is rable. The room over the tube-well and the chhappar were in fact serving the same purpose as to which the land was being put i.e. the farming and as such it cannot be argued that a part of the property acquired as not arable or waste land. The authority cited by the Learned Counsel for the petitioners Sarju Prasad Saha v. State of U.P. and others 1966 A L.J. 1, is to relevant to the point. It laid down that:

if only a part of the land is waste or arable and the rest is not, a notification u/s 17 (4) dispensing with compliance with the requirements of section 5-A would be invalid. It would not be open to the court to regard the notification as partially good and partially bad.

I have already pointed out that no part of the acquired land as under any building and as such the entire area could be called as waste or arable. In the cited case admittedly and appreciable part of the acquire d land had been built over and as such the same could not be termed as waste or arable land. It may also be mentioned here as has been pleaded by the respondents that 65 out of the land owners including Ram Sarup son of kandhir Singh and Vijay Ram son of Ganga Parshad two of the petitioners whose land had been acquired had al-ready accepted the amount of compensation awarded by the Collector. Respondent No. 3 obtained possession of the land after the award. This is hardly a case where this Court in exercise of its extra-ordinary powers under Articles 226 and 227 of the Constitution of India should interfere in the acquisition of the land made by respondent No. 1 for public purposes. The writ petition fails and is dismissed with no order as to costs.