Sri Kameshwar Narain Singh and Others vs The State of Bihar and Others

S.K. Homchaudhuri, J.—The Petitioners approached this Court in this writ petition originally with the allegation that without any authority of law Respondent No. 3 and his contractor along with his labourers encroached upon part of the land belonging to the Petitioners appertaining to C.S. Plot Nos. 122 and 123 (Part) under Khata No. 26 of Thana No. 114 situate in Mauza Musepur Banwar within the Police Station Kalyanpur in the district of Samastipur and started digging trenches thereon. According to the Petitioners on the plot of lands in, question the Petitioners had a residential building, well, cow sheds, private borings, standing crops of wheat and oil-seeds grown by the Petitioners thereon. On 25.1.83, finding some contractor of Respondent No. 3 along with his labourers were digging trenches on war-footing for making construction on the plot of land when the Petitioner No. 1 protested he was told by the contractors that the plot of land had been acquired by the Respondent No. 3 and at his instance for the purpose of construction of building digging commenced. However because of objections by Petitioner No. 1 the contractors stopped digging for that day stating that the work would be resumed with the help of the police next day on the land acquired by the Government. The Petitioner No. 1 went to the Kalyanpur Police Station on the same date seeking help of the police to stop the illegal encroachment and digging of the land of the Petitioners, but the Officer-in-charge of Kalyanpur Police Station expressed his inability to help the Petitioners in view of the fact that Respondent No. 2, namely, the Collector, Samastipur, had directed him to resist any attempt by the land-holder to obstruct construction work by the contractor. On 26.1.1983 Petitioner No. 1 along with his lawyer tried to meet Respondent No. 2 and the Sub-divisional Officer, Samastipur for safeguarding rights of the Petitioners and protect their lands from being encroached upon and damaged by contractor engaged by Respondent No. 3, but the Respondent No. 2 and the said S.D.O. did not at all listen to them. On 27.1.1983 Respondent No. 2 was out of station and an application addressed to the Respondent No. 2 was filed on behalf of the Petitioners before the Deputy Collector (Incharge Legal Section), Samastipur who ordered it to be placed on 1.2.1983 before the Collector. According to the Petitioners the plots of land in question are their ancestral land and that after partition, the plots of land in question sought to be acquired, fell in the share of the Petitioners and they are the owner thereof.

The petition was filed on 31.1.1983. This Court on 31.1.1983 passed the following order:

After hearing the learned Counsel for the Petitioners and the State, we feel that for the present the anxiety of the law would be satisfied if the Petitioner''s representation filed before the Collector, Samastipur and said to be fixed for consideration tomorrow is directed to be so disposed of and until that time, the authorities may be restrained from making any overt act over the Petitioners'' land.

As prayed for, ten days time is allowed to the learned Counsel for the State to seek instructions.

Let a copy of this order be handed over to Mr. Girindra Mohan Thakur.

After the order was passed, the representation was disposed of by rejecting thereof by the Collector. Thereafter the Petitioners filed a supplementary petition on 8.2.1983 challenging the acquisition proceeding of the land and the order passed. In the supplementary petition the Petitioners have stated that after the enquiry the Petitioners for the first time came to know that for the acquisition of the land in question, Land Acquisition Proceeding Case No. 42/1964-65 was registered and a notification dated 26.12.1963 u/s 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the ''Act'') was issued by the Collector, Darbhanga for the acquisition of the land in question measuring 4 acres and 36 decimals for the construction of a Dispensary and Staff quarters under the Employees State Insurance Scheme. The said proceeding was initiated on the basis of a Government order u/s 17(4) of the Act. In paragraph 5 of the Supplementary affidavit it is stated that the Petitioners have right, title and possession over the land in question but the copies of the notification u/s 4(1) of the Act dated 26.12.1963 were not served on them. The notification was also not published at the office of the Gram Pancha yet or at some conspicuous place in the village from which the Petitioners could have gathered information. From the records the Petitioners further found that (I) a declaration u/s 6 of the Act was made on 3.3.1965 by the then Collector, (ii) Notices u/s 9(i) of the Act were served on Bharat Kishore Prasad Singh and one Krishnadeo Narain Singh brothers of petitioners No. 4 and 5, (iii) the possession of the land on paper was taken by the Collector on 11.9.1969 and an award of compensation u/s 11 of the Act was made in favour of some persons who did not receive the amount so awarded.

The Petitioners further case is that factually physical possession of the land was never taken and the acquired land has all along been under the possession of the Petitioners.

In the counter affidavit filed on behalf of the Respondent No. 1 it is stated that the land in question on which Public Works Department was constructing the building for E.S.I. Dispensary was acquired by the Collector, Darbhanga and the possession thereof was delivered to Sri B.K. Sinha, Sectional Officer, Public Works Department, Samastipur on 11.9.1969. On 3.3.1962 the Government of Bihar directed the Collector, Darbhanga for acquisition of the land in question measuring 4.36 acres for construction of dispensary and staff quarters for the employees of State Insurance Scheme and thereafter a notification u/s 4(1) of the Act was issued by the Collector on 26.12.1963 and copies of that notification were sent to S.D.O., Darbhanga, Anchaladhikari, Kalyanpur, Mukhia, Musapui Gram Panchayat and all persons who were known or believed to be interested in the acquired land. I was specifically mentioned in the notification that ''in exercise of the power 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 shall not apply''. Thereafter notification u/s 6 of the Act was issued on 3.3.1965. At the time of issuing notification u/s 4(1) of the Act, enquiry was made and the notices were sent to the persons who are known or believed to be interested persons in the plots of land sought to be acquired. The notice u/s 9 of the Act was published on 8.4.1965 and copies thereof were issued on the persons known or believed to be interested in the plots of land on 9.4.1965 and 10.4.1965. In the counter affidavit filed on behalf of Respondent No. I it is contended that P.W.D. to whom the land was handed over for constructing the Hospitals and staff quarter for E.S.I., started constructions after getting allotment of the fund by the Labour and Employment Department. The construction was, how ever, stopped after an interm order dated 31.1.1983 was passed by this Court.

The Petitioners have challenge the acquisition proceedings mainly on the following grounds:

(i) The Petitioners being the recorded owner of the land in question, acquisition thereof by the impugned proceedings without service of copy of the notification to the Petitioners u/s 4(1) of the Act is illegal and void.

(ii) The materials on record clearly disclose that there was no urgency for acquisition of the land, and as such, notification u/s 17(4) of the Act depriving the owner of the land of their right u/s 6A of the Act on the plea of urgency for acquisition was arbitrary and illegal.

I have heard the learned Counsel for the Petitioners and the learned Counsel for the Respondents.

Learned Counsel for the Petitioner submitted that admittedly notification u/s 4 (Annexure ''D'' to the counter affidavit) and the declaration u/s 6 (Annexure ''E'' to the counter affidavit) were issued by the Collector taking resort to Section 17 of the Act for acquisition of the land and as such, allowing the Collector to issue notification under Sections 4 and 6 are incongruous and unreasonable and the whole proceeding is vitiated and liable to be quashed inasmuch as power u/s 17 of the Act is integrated with the exercise of power under Sections 4 and 6 of the Act. In support of the contention learned Counsel for the Petitioners has placed reliance on the decision of this Court in the case of Chaudhury Rafiquir Rahman Vs. The State of Bihar and Another, The learned Counsel for the Petitioners submitted that undisputedly the notification u/s 4(1) was issued on 26.12.1963 and declaration u/s 6 of the Act was issued on 3.3.1965, but the administrative approval for the project for which the land in question was acquired, was received after 19 years on 1.2.1982, which clearly discloses that there was no urgency for acquisition of the land. As such, the exercise of power u/s 17(4) of the Act for acquisition of the land by depriving the owners thereof their statutory right u/s 5A of the Act was a colourable exercise of power and arbitrary and illegal which vitiated the entire proceeding. In support of the contentions learned Counsel for the Petitioners has placed reliance on the decisions of the Hon''ble Supreme Court on the following cases:

(i) Narayan Govind Gavate and Others Vs. State of Maharashtra and Others,

(ii) State of Punjab and Another Vs. Gurdial Singh and Others,

(iii) Swadeshi Cotton Mills v. Union of India reported in (1981) 1 SCC 644.

Learned Counsel for the Petitioners further submitted that u/s 4(1) of the Act as amended by Land Acquisition (Bihar Amendment) Act, 1960 service of notice to all the persons known and believed to be interested in the land sought to be acquired is mandatory and although it was apparent from the Genealogical table of the owners of the land as narrated in paragraph 9 of the affidavit-in-opposition, filed on behalf of Respondent No. 1 the Petitioners were recorded owner of the land, no copy of the notification u/s 4(1) of the Act was served on the Petitioners.

Learned Counsel for the Respondents, on the other hand, submitted that the notices were issued to all the persons known and believed to be interested in the acquired land. In support of the contention Respondents annexed a copy of the notice issued to all the Respondents which is annexed as Annexure ''D'' to the counter affidavit. Learned Counsel for the Respondents further submitted that even if notice u/s 4 were not served upon the Petitioners while the same were served on the other co-owners of the land, the Petitioners had full knowledge of the acquisition of the land from the very beginning. In support of the contention the Respondents in the additional counter affidavit filed on 3.5.1995 have contended as follows:

(i) On 4.5.1962 Ramsaran Singh, father of Petitioner No. 5 and uncle of other Petitioners, and another filed an application before the Collector praying for exemption of the land In question from the acquisition as there were large number of co-sharers thereof. Similar prayer was made by the same persons in another application filed on 3.10.1962.

(ii) On 6.1.1963 the another son of Ramsaran Singh made an application before the Collector suggesting alternative site for acquisition.

(iii) After the notice dated 26.12.1963 (Annexure ''D'') was issued, the Petitioner No. 6 made an application on 13.1.1964 before the Collector suggesting an alternative site for acquisition in lieu of their land in Plot No. 122 which had been notified to be acquired.

(iv) On 4.3.1964 a petition was filed on behalf of one Nand Kishore Singh and others before the Collector, Darbhanga opposing the suggestion made by Bharat Kishore Singh (Petitioner No. 6) for proposing acquisition of alternative site.

Learned Counsel for the Respondents further submitted that the petition is liable to be dismissed on the ground of laches inasmuch as notice u/s 4(1) of the Act was issued on 26.12.1963 and the declaration u/s 6 was made in the year 1965, the acquisition of the land had been completed long back and the construction of the site has already been started, but the Petitioners have approached this Court in 1983, after lapse of 18 years of issue of notification u/s 4(1) of the Act. The learned Counsel for the Respondents further submitted that delay in starting construction on the land which was acquired for the construction by invoking power u/s 17(4) of the Act exempting operation u/s 5A of the Act has not vitiated the acquisition proceedings. In support of the contention learned Counsel for the Respondents placed reliance on the decision of the Hon''ble Supreme Court in the following cases:

(i) Deepak Pahwa and Others Vs. Lt. Governor of Delhi and Others,

(ii) Hari Singh and Others Vs. State of U.P. and Others,

(iii) Babu Singh and Others Vs. Union of India (UOI) and Others,

I have considered the submissions made on behalf of the Petitioners and the Respondents and perused the materials on record.

Section 4(1) of the Act was amended by Land Acquisition (Bihar Amendment) Act, 1960 (XI of 1961) as follows:

(1) Whenever it appears to the appropriate Government or the Collector that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published at the office of the Collector, at the office of the Sub-divisional Officer, at the offices of the smallest revenue administrative unit and Gram Panchayat, if any, constituted under the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948), and at some conspicuous place in the village in which the land is situated; and the Collector shall cause copies of the notification to be served on all persons known or believed to be interested in the land.

13.1 Service of notice to the persons known or believed to be interested in the land sought to be acquired is, therefore, mandatory. In the instant case, from the statement made in paragraph 9 of the counter affidavit filed on behalf of Respondent No. 1 on 24.2.1983 it is apparent that the records of Circle Officer revealed that Petitioner Nos. 1, 2 and 3 were recorded co-owners of the plots of land appertaining to Plot Nos. 122 and 123 which were sought to be acquired in the proceeding. But the Annexure ''D'' to the counter affidavit which contains the names of persons to whom the copies of notification u/s 4(1) dated 26.12.1953 were served does not include their names. Although sufficient time was granted to the Respondents to produce the records to satisfy the Court that copies of notification u/s 4(1) of the Act was actually served on the Petitioners but no such records have been produced. I am, therefore, constrained to hold that copies of the notification dated 26.12.1963 issued u/s 4(1) of the Act were not served on the Petitioners. The facts that Ramsaran Singh made an application on 4.5.1962 and 3.10.1962 prior to issuance of notice u/s 4(1) of the Act urging the Collector not to acquire the land and the application made on 4.3.1964 by Petitioner No. 6 making the suggestion for alternative site for acquisition, cannot per se establish that all the Petitioners had knowledge of the acquisition of the land and notification u/s 4(1) of the Act issued on 26.12.1963. That apart the Petitioner''s statement made in the petition that for the first time they came to know about the acquisition on 25.1.1983 when Respondent No. 3 with their contractor entered into the land and started digging trenches thereon and that acquired land has all along been under possession of the Petitioners and there was a residential building, well, cow sheds, private borings, standing crops over the land, has not been specifically denied by the Respondents. As such, the Petitioners, statement that they came to know about the acquisition of the land for the first time on 25th January, 1983 cannot be brushed aside. The Petitioners approached this Court on 31st January, 1983. As such, there was no delay and laches on the part of the Petitioners In approaching this Court.

On the question as to whether there was any materials that there was urgency for acquisition of the land which necessitated issue of notice u/s 17(4) of the Act depriving the owners of the land of their statutory right u/s 5A of the Act, the Respondent No. 1 has not produced any material on the basis of which the Government derived satisfaction that there was urgency for acquisition of the land. Besides, from the affidavit In opposition filed by the Respondents it is apparent that although the notification u/s 4(1) of the Act was issued on 26.12.1963 and declaration u/s 6 of the Act was made on 3.3.1965, the administrative approval for the project for which the land was acquired was accorded only on 1.2.1982, after 18 years of the issuance of notice u/s 4(1) of the Act which clearly discloses that there was no urgency for acquisition of the land and the issuance of notice u/s 17(4) depriving the owners of their right u/s 5A of the Act.

In paragraph 38 of the judgment in the case of Narayan Govind Gavate (supra) the Hon''ble Supreme Court held as follows:

Now, the purpose of Section 17(4) of the Act is obviously, not merely to confine action under it to waste and arable land but also to situations in which an inquiry u/s 5A will serve no useful purpose, or, for some overriding reason, it should be dispensed with. The mind of the Officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings u/s 5A of the Act should be eliminated. It Is not just the existence of an urgency but the need to dispense with an inquiry u/s 5A which has to be considered.

In paragraph 16 of the judgment in the case of State of Punjab v. Gurdial Singh (supra) the Hon''ble Supreme Court held as follows:

The fourth point about the use of emergency power is well taken. Without referring to supportive case-law, it is fundamental that compulsory taking of a man''s property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry u/s 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power.

I find force in the submissions of the learned Counsel for the Petitioners that there was no urgency for acquisition of the land and that notification u/s 17(4) of the Act was unwarranted and arbitrary and the same was issued in colourable exercise of power.

The ratio of the decisions of the Hon''ble Supreme Court in the case of Deepak Pahwa (supra), Babu Singh (supra) as well as in the case of Hari Singh (supra) on which the learned Counsel for the Respondents has placed reliance have no application to the facts of the present case.

For the reasons stated above, the petition is allowed. The impugned proceeding of acquisition of the land in Land Acquisition Case No. 42/1964-65, appertaining to C.S. Plot Nos. 122 and 123 (part) under khatha No. 26 of Thana No. 114 situate in Mauza Musepur Banwar within the Police Station Kalyanpur in the district of Samastipur is quashed.

Quashing the acquisition proceedings, however, shall not preclude the Respondents from acquiring the land in question in accordance with law.

On the facts and circumstances of the case, I make no order as to costs.