A notification under Sec.17 (4) of the Land Acquisition Act, 1894 can be combined with a notification under Sec. 4 of the Act, and the land situated in a municipal area can be acquired under Sec.17 (4) if it is arable land.

PRABHA SHANKER MISHRA, J.

1. The petitioner has moved this Court under Art.226 of the Constitution of India for quashing the notification under Sec. 4 and Sec.17 (4) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) dated 1-8-1981 issued for the acquisition of lands measuring 0.92 acres and plot (Khesra) Nos. 25, 31, 32 and 33 in revenue thana No. 196 in the district of Saharsa for the purpose of constructing a Microwave Station.

2. The petitioner has not alleged that the acquisition of the said land has not been made for a public purpose. According to him Saharsa which is now a commissionary town has substantially expanded and embraced village Batraha in its urban agglomeration. The land falls within the boundaries of the Saharsa Municipality. The petitioner got this land in his share in a partition of the joint family properties and intended to construct a separate residential house and a clinic upon it. He is a doctor and a member of the Bihar Health Services and is presently posted in Nalanda Medical College Hospital, Patna. Since he has been residing in Patna he had no information about the notification for acquisition of the land and learnt for the first time from his elder brother, a Member of the Legislative Assembly from Saharsa Constituency, only on 19-3-1982. The brother received a notice under Section 9 of the Act at Saharsa when he had gone during Holi festival. He filed a petition by way of objection to the acquisition stating therein that a family partition had taken place in the year 1982 and the land in question had been allotted to his brother, the petitioner. He, therefore, was not interested in the land. He, however, obtained certified copy of the order-sheet of Saharsa Land Acquisition Case No. 18 of 1980-81 and the notifications under Sections 4 and 17 (4) and the declaration under Sec. 6 of the Act; copies whereof are annexed as Annexures 1 and 2 respectively. The petitioner thereafter obtained necessary informations and finding that the acquisition of his land was actuated by malice and invalid, for the reason that Sec.17 (4) of the Act could not be applied to a land situated in the municipal area, he moved this Court.

3. The petitioner alleged mala fide, in fact, against Shri Ramesh Jha, Minister for Agriculture of the State of Bihar, who, according to him, on account of political rivalry with his brother Shri Shankar Prasad Tekriwal, saw to it that the original plan was modified surreptitiously and hurridly and instead of the lands in village Bangaon the petitioners land was acquired in village Batraha. He had impleaded Shri Ramesh Jha as the 5th respondent, but at the time of admission of this case deleted his name. He thus gave up his allegations of mala fide against Shri Jha.

4. Mr. Rash Bihari Singh, learned counsel for the petitioner, contended before us that the actual scheme of acquisition was of the land in village Bangaon and not in village Batraha. He placed reliance upon the order dated 31-10-1980 passed in Land Acquisition Case No. 18 of 1980-81 for showing that the original proposal was to acquire lands for the purpose of Microwave Station in village Bangaon, which, according to him, is about 3 Kms. away from the town of Saharsa. Learned counsel for the respondents 1 to 3 produced the original order-sheet of Land Acquisition Case No. 18 of 1980-81 of the court of the Land Acquisition Officer, Saharsa, Quite a few words showing that the land sought to be acquired was in village Batraha. P.S. Bangaon and not in village Bangaon, P.S. Bangaon, were found omitted in certified copy, from which the petitioner prepared true copy and annexed to the writ application. Finding it difficult to dispute the fact that the original proposal itself was to acquire land in village Batraha, learned counsel for the petitioner gave up this contention.

5. Learned counsel for the petitioner, however, maintained that the respondents acted illegally in taking recourse to Sec.17 (4) of t