Compliance with Section 226 of the M.P. Land Revenue Code is imperative whenever land is being acquired for the purposes of abadi or for extension of gaothan.

Headnote:
LAND ACQUISITION - EXTENSION OF GAOTHAN - COMPLIANCE WITH SECTION 226 OF THE M.P. LAND REVENUE CODE - NECESSITY.
Fact of the Case:

The petitioner challenged the notification issued by the Commissioner under Section 6 of the Land Acquisition Act, acquiring his field for the purpose of extension of the gaothan site. The petitioner contended that the application of the urgency clause and thereby depriving him of his right to raise objections under Section 5-A of the Land Acquisition Act was not a bona fide exercise of the power and that the Deputy Commissioner did not exercise his powers under Sections 226 (1) and (2) of the M. P. Land Revenue Code.
Finding of the Court:

The court held that the second contention raised on behalf of the petitioner was well founded and must be accepted. It was imperative whenever land is being acquired for the purposes of abadi or for extension of gaothan that the provisions of Section 226 of the M.P. Land Revenue Code must be complied with. In the instant case, the Deputy Commissioner had not formed an opinion either that there is insufficiency of occupied land and it is necessary to acquire land for abadi, or that there is no other unoccupied land which can be reserved for extension of abadi.
Issues: 1. Whether the application of the urgency clause and thereby depriving the petitioner of his right to raise objections under Section 5-A of the Land Acquisition Act was a bona fide exercise of the power? 2. Whether the Deputy Commissioner exercised his powers under Sections 226 (1) and (2) of the M. P. Land Revenue Code?
Ratio Decidendi: 1. The court observed that it has become almost a rule for the acquiring authority in such cases to apply the urgency clause and to dispense with the previsions of Section 5-A which enable the owner or occupier of the land proposed to be acquired to raise objections before the acquiring authority. However, the court was not satisfied from its experience about the use of the urgency clause in similar notifications that the acquiring authority applied its mind in deciding whether or not me urgency clause should be made use of and thus deprive the owners and persons interested in land, of a valuable opportunity to raise objections to the proposed acquisition. 2. The court held that it is imperative whenever land is being acquired for the purposes of abadi or for extension of gaothan that the provisions of Section 226 of the M.P. Land Revenue Code must be complied with. In the instant case, the Deputy Commissioner had not formed an opinion either that there is insufficiency of occupied land and it is necessary to acquire land for abadi, or that there is no other unoccupied land which can be reserved for extension of abadi.
Final Decision: The petition was allowed with costs. The notification dated 18-1-1962 as well as the notification dated 15-12-1961, published in the Maharashtra Gazette dated 21-12-1961, were quashed so far as Survey No. 6/1 was concerned.

Judgment

Abhyankar, J.

1. The petitioner Sitaram is an owner of field survey No. 6/1 of mouza Kapustalni, having an area of 7 acre and 33 gunthas. He is aggrieved by the notification issued by the Commissioner, Nagpur Division, first under Section 4 and later under Section 6 of the Land Acquisition Act, acquiring the said field for the purpose of extension of gaothan of village Kapustalni. In this petition he challenges that notification as not bona tide and as other wise invalid on several other grounds.

2. The petitioner has filed a sketch showing the gaothan and surrounding survey numbers of village Kapustalni to be found at page 80 of the paper book. It appears that the village is affected by floods in the rains and there were heavy rains in 1959 which resulted in some of the residents suffering damage on account of the floods. The Commissioner, Nagpur Division, issued a notification as 21-7-60 under Section 4 of the Land Acquisition Act, proposing to acquire survey No. 263 of that village for extension of gaothan site. The area of survey No. 263 is 2.63 acres. That notification is to be found in the Maharashtra Gazette, dated 21st July 1960 at pages 285 and 286 in the Nagpur Supplement. The purpose given for the proposed acquisition was extension of new gaothan for flood-affected persons. The petitioner has stated that action proposed to be taken under this provision was kept to abeyance. It is however stated before us on behalf of the Commissioner that this proposal was subsequently abandoned and a notification to that effect was published in the Maharashtra Government Gazette, Nagpur Supplement, on 5-1-1951, cancelling the earlier notification of 21-7-1960 Nothing seems to have taken place till 15th December 1961. On that date the Commissioner, Nagpur Division, again issued a notification under Section 4 of the Land Acquisition Act proposing to acquire land for extension of gaothan. This notification was published in the Maharashtra Gazette date 21st December 1961, to be found at pages 21 and 22 or the paper book. By this notification two survey numbers 112-13 acres and 19 gunthas, and 6/1-6 acres and 23 gunthas, the latter belonging to the petitioner, were proposed to be acquired for extension of gaothan for flood effected persons. At the same time the Commissioner dispensed with the provisions of a Section 5-A of the Act to exercise of his powers under Section 17(4) of the Act A notice in form G, required to be issued under the second part of Section 4(1) of the Land,. Acquisition Act, was published on the notice board of the office of the Sub-Divisional Officer on 18th December 1961. It was also proclaimed by beat of drum in the village on 20th December 1961 that the two fields were proposed to be acquired. As one of the fields proposed to be acquired belonged to the petitioner, the petitioner sent a representation to the Secretary, Revenue Department on 2-1-1962. A similar-representation was also Submitted by the petitioner to the Commissioner, Nagpur Division, Nagpur, 4 days later. The Secretary, Revenue Department intimated to the petitioner on 5-1-62 that this representation was being considered. However, on 18-1-1962 the Commissioner, Nagpur Division, issued a final notification under Section 6 of the Land Acquisition Act and it was published in the Gazette of even late. That notification is to be found at page 78 of the paper hook. The petitioner immediately filed the present petition in this Court challenging the notification under Section 6, acquiring his survey No. 6/1 for extension of the gaothan site.

3. Two contentions need to be considered in this petition. The first contention is that application of the urgency clause and thereby depriving the petitioner of his right to raise objections to the proposed acquisition under Section 5-A of the Land Acquisition Act was not a bona fide exercise of the power in the instant case, it is also urged that the Deputy Commissioner did not exercise his powers under Sect

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