Smt. Maheshwari Devi and Others vs State of Uttar Pradesh and Others

K.J. Shetty, C.J.—Petitioners are owners of plot No. 351 measuring 2.7 acres situated in mauza Bhalgaon, paragana Develgarh, district Garhwal. The State Government for the purpose of constructing a power sub-section has taken steps to acquire this land. A notification u/s 4(i) readwith Section 17(1) and 17(4) of the Land Acquisition Act was issued on August 9, 1975 (the Act). The inquiry contemplated u/s 5A of the Act was dispensed with on the ground that there was urgency in the matter. Declaration as required u/s 6 of the said Act was made by notification dated August 25, 1975.

Challenging the validity of the notifications the Petitioners have moved this Court under Article 226 of the Constitution. The writ petition was filed on 15-9-1980. This Court while admitting the writ petition has stayed the delivery of possession. So far all these years, the possession of the land in question remains with the Petitioners.

The primary contention urged for the Petitioners is that there was absolutely no urgency to dispense with the inquiry contemplated u/s 5A of the Act. In support thereof counsel for the Petitioners placed reliance on the averments in the counter affidavit and in particular, the averments in paragraph 22. The counter affidavit has been filed by Dhananjai Singh who is the Special Land Acquisition Officer Garhwal Divn. Pauri. He has stated thus:

Para 22. "That in reply to the contents of paragraph 26, 27 and 28 of the writ petition it is stated that acquisition proceedings were not at all delayed. In fact after publication of Section 6 of the Act, notices u/s 9 of the Acquisition Act were issued for service on the Petitioner on 6-9-1975 but the notices could not be served on them on account of their absence from their addresses which is recorded in the revenue record against the land in dispute. Since no other address was available with the District Authorities fresh notices u/s 9 of the Act were again issued on 25th October 1976 for service on the Petitioners but unfortunately this time also the notices were not served as the Petitioners were not available at their addresses. As a result of the non-service of notices the possession of the land in dispute could not be taken in the year 1976. Fresh attempt for service on the Petitioners u/s 9 of the Act could not, however, be taken on account of the fact that there was no officer posted as Special Land Acquisition Officer from August 1978 to May 1980. By mistake no notification conferring the power of Special Land Acquisition Officer on any of the officer was issued by the Government during this period after the transfer of Sri M.S. Srivastava who was working as Special Land Acquisition Officer upto 9th August 1978. On 15th May 1980 Sri Dhananjai Singh took over charge as Special Land Acquisition Officer, thereafter, he proceeded on leave on account of his domestic problem. He rejoined the duties in the end of July 1980 where after he initiated proceedings for taking the land and for that purpose issued notices u/s 9 of the Act again on 10-8-1980 as well as made local publication of the notices by fixation on the plot in dispute. After the service of the notice Petitioner filed their objections as contemplated by Section 9 of the Act. Those objections could not be decided due to the stay order granted by this Hon''ble Court on account whereof the possession of the land in dispute has also been held up.

The averments in paragraph 22 of the counter-affidavit would make an interesting reading. The first part therein deals with the difficulties of the authorities to effect service of notices to the Petitioners. Next it deals with want of officers to be posted as Land Acquisition Officer. Assuming that there were genuine difficulties for the officers to effect service, one cannot understand why there should be a delay for a couple of years in posting the concerned officer to continue the proceedings. This delay is indeed ununderstandable against the background of. the urgency alleged for acquiring the land.

The declaration u/s 6 of the Act was made as far back as August 25, 1975. The possession of the land was not taken till the Petitioners filed the writ petition in 1980. It only indicates that there was no urgency to eliminate the enquiry u/s 5A. If the authorities were not serious to take possession of the land for a little over five years, we fail to understand why the inquiry u/s 5A should be dispensed with.

It is well settled that the nature of urgency required for dispensing with the inquiry u/s 5A should be such an urgency that even summary proceedings u/s 5A of the Act should be eliminated. It is not just the existence of urgency to acquire the land, but the need to dispense with the inquiry u/s 5A which has to be considered--See Narayan Govind Gavate and Others Vs. State of Maharashtra and Others, .

The averments in the counter affidavit and the circumstances to which we have made reference, would delay all doubts about the non-existence of any such urgency in this case.

The learned Standing Counsel, however, urged that this Court should not take into consideration the events that followed after issuing the declaration u/s 6 for the purpose of considering when there was urgency to eliminate the inquiry u/s 5A. According to the counsel, post events should not enter into the judicial verdict. We do not think that subsequent events are extraneous for consideration. Of course, such events must not be those which are beyond the control of the Land Acquisition Officer or the State. They must not also be those contributed by the owners or other interested persons in the land sought to be acquired. But the events that reveal the soft padalling of the matter or the inaction of the officers for no good reason could be taken into consideration for determining the validity of acquisition in which the inquiry u/s 5A has been dispensed with.

The Petitioner''s only grievance is that they shall be afforded with an opportunity to file objections against the proposed acquisition. To avoid further delay we give 30 days time for them to file objections from the dale a certified copy of this order is secured by them. If any such objection is filed, there shall be an enquiry as required u/s 5A of the Act. It is made clear that the land acquisition officer need not issue notice calling upon the Petitioners to file objections.

In the conclusion that we have reached, it is unnecessary to quash the entire preliminary notification issued u/s 4(1) read with Section 17(1)(4). That notification (Annexure-3) in so far it relates Section 17(1)(4) is only quashed. The remaining part of the notification is kept undisturbed.

Before parting with the case, we may have to say a word more. Section 4 notification was issued on August 9, 1975 and the declaration u/s 6 will have to be made within three years from the date of publication of preliminary notification. The period of three years has already elapsed. By our affording opportunity to the Petitioners to file objections against the proposed acquisition for (he purpose of inquiry u/s 5A, we should not render the acquisition infructuous. We should not make it legally impossible to issue notification u/s 6 of the Act. Section 6 notification has already been issued on August 25, 1975. We do not want to quash it but we make it clear that if on the report of the Land Acquisition officer made u/s 5A, the State Government comes to the conclusion that there is no need to acquire the land for the purpose in question, the Government shall exercise the power u/s 48 of the Act to withdraw from the acquisition of the land since its possession still remains with the Petitioners. If the conclusion is otherwise, then there is no need to issue further declaration u/s 6 of the Act. We, however, keep that notification in abeyance. We take all these precautions so that in our anxiety to afford an opportunity to the Petitioners, the object of acquisition should not be frustrated.

We also make it clear that till the inquiry u/s 5A is completed and till the report thereof is considered, the authorities shall not interfere with the possession of the Petitioners.

In the result, the writ petition is allowed in part to the extent indicated above. The preliminary notification dated August 9, 1975 (Annexure-3) so far as it relates to Section 17(1) and 17(4) is hereby quashed. The said notification so far as it relates to Section 4 is kept undisturbed. The notification dated August 25, 1975 issued u/s 6 of the Act is kept in abeyance and we direct that it shall not be acted upon till the decision is taken on the report of the inquiry u/s 5A of the Act.

In the circumstances of the case, we make no order as to costs.

A copy of this judgment shall be delivered to the Petitioners by the end of next week. The Petitioners, however, shall apply for a copy of this judgment within three days from today. Petition allowed.