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PATNA HIGH COURT
V.Ramaswami and N.L.Untwalia JJ.
Shivdev Singh
Versus
State Of Bihar
Miscellaneous Judicial Case No. 802 of 1961 ;
Decided On : NOVEMBER 30, 1962
LAND ACQUISITION - Bihar Town Planning and Improvement Trust Act, 1951 (Act 35 of 1951) - Sec. 48(1)(b) - Interpretation - Whether the Trust was required to serve a notice on the occupier of each premises, whose name is entered in the municipal assessment list and not on an occupier like the petitioner whose name was not entered in the municipal assessment list - Held, no.
Fact of the Case:
Petitioner, an occupier of a shop in the New Market area of Patna, challenged the scheme, order of acquisition, and order for eviction passed under the Bihar Town Planning and Improvement Trust Act, 1951, alleging that no notice was issued to him and that the Act was ultra vires and unconstitutional for not providing an opportunity of hearing to the person whose property was going to be affected.
Finding of the Court:
The Court held that under the terms of Sec. 48(1)(b) of the Bihar Act 35 of 1951, the Trust was not required to serve any notice on the petitioner. The Court further held that the law was not unconstitutional or invalid merely because it had not provided for service of notice on all the occupiers of the premises sought to be acquired, whether such occupiers are entered in the municipal assessment list or not.
Issues: 1. Whether the Trust was required to serve a notice on the occupier of each premises, whose name is entered in the municipal assessment list and not on an occupier like the petitioner whose name was not entered in the municipal assessment list? 2. Whether the Act was ultra vires and unconstitutional for not providing an opportunity of hearing to the person whose property was going to be affected?
Ratio Decidendi: 1. The Court interpreted Sec. 48(1)(b) of the Bihar Act 35 of 1951 and held that the word "entered" qualifies and governs the word "occupier" and not the word "premises". Therefore, the Trust was not required to serve a notice on the petitioner whose name was not entered in the municipal assessment list. 2. The Court held that the law was not unconstitutional or invalid merely because it had not provided for service of notice on all the occupiers of the premises sought to be acquired. It is not always possible and easy to do so. A man living in any premises or carrying on any business in them may not necessarily be the occupier of such premises as he might be an agent or servant of the occupier to look after the demised premises or to carry on business therein.
Final Decision: The Court discharged the rule and dismissed the petition, but made no order as to costs.
Untwalia, J.
1. In this application under Article 226 of the Constitution of India, the petitioner has obtained a rule against the State of Bihar, respondent No. 1, and the Chairman, Patna Improvement Trust, respondent No. 2, to show cause why an appropriate writ, order or direction should not be issued quashing the scheme, the order of acquisition and the order for eviction passed under the Bihar Town Planning and Improvement Trust Act, 1951 (Act 35 of 1951), and directing them to forbear from enforcing the Scheme and the order and evicting the petitioner from holding No. 217 of the Patna Municipal Corporation. It appears that the owners of the permises comprised in the said holding were added as respondents 3 and 4 in the application with the permission of the Court on 19-9-61, but the M.J.C. application stood dismissed as against respondent No. 4, on 19-3-62 for non-compliance of order No. 12 dated 12-3-62.
2. The petitioners case in the application filed on 13-9-61 is that he
owns a shop in the area commonly known as New Market and holds the same on rent from the landlord
and that he had been carrying on trade in that shop from before 23rd May, 1951. His further case is that in February, 1956, a notice of the Scheme was first issued by the Patna Improvement Trust constituted under the Town Planning and Improvement Trust Act and was communicated to all owners of the houses in the area known as New Market, Patna. The notices issued in February, 1956 were superseded and the Trust issued fresh notices in September, 1957 to the owners of the houses aforesaid. The petitioners further case is that
no notice was issued to the petitioner who occupies the Holding No. 217, Circle No. 7, in Ward No. 2 and has his shop therein where he carries on his trade
and that
without giving notice to the occupiers, the said Trust proceeded with the finalisation of the scheme and without hearing the petitioner, and other occupiers, the Government sanctioned the Scheme.
The petitioners case proceeds that
no notice under Section 9 was issued to the petitioner nor was the petitioner heard on either the acquisition or compensation
and that
the petitioner has been asked by the landlord to vacate the premises by the 15th September, 1961, for the purpose of its acquisition by the Trust under the Planning Act.
In the petition, the petitioner has challenged the order of acquisition or eviction as being illegal and without jurisdiction, for the failure of respondent No. 2 to comply with the mandatory provision of notice in the said Act and give an opportunity to the petitioner to he heard. At the time of hearing of the application, it was also submitted that, if on the interpretation of Sec. 48(1) (b) of the Act, it be held that the Trust was required to serve a notice on the occupier of each premises, whose name is entered in the municipal assessment list and not on an occupier like the petitioner whose name was not entered in the municipal assessment list, the Act is ultra vires and unconstitutional inasmuch as, it does not provide for an opportunity of hearing the person whose property is going to be affected and so, due to the defect in the procedural aspect of the law, it is an unreasonable restriction on the right of the petitioner to hold his property and to carry on trade or business in it. No attack, however, has been made on the substantive aspect of the law. The order of acquisition and the award made under the Land Acquisition Act, 1894 (Act I of 1894) have been challenged as being ultra vires and void for non-service of notice on the petitioner under Section 9 of the said Act.
3. The petitioner in the 19th paragraph of his application has said:-
-
"That on the objection of the owner, the Chairman of the Trust made the following reservation in favour of Stall-Holders:-
- "......There is of course the question of providing the displaced persons with residential area as well as business area and this aspect has been taken into consideratio
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