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PATNA HIGH COURT
B.P.Singh, J.
Haripada Mandal
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 254 of 1981 ;
Decided On : SEPTEMBER 10, 1987
LAND ACQUISITION - NOTIFICATION UNDER SECTION 4(1) OF THE ACT - DIRECTION UNDER SECTION 17(4) OF THE ACT - DECLARATION UNDER SECTION 6 OF THE ACT - DELAY IN MAKING DECLARATION - COLOURABLE EXERCISE OF POWER - ACQUISITION PROCEEDINGS QUASHED.
Fact of the Case:
Petitioners challenged the notification issued under Section 4 of the Land Acquisition Act (the Act) and the direction under Section 17(4) of the Act published in the gazette on 1-1-1978, seeking to acquire their lands for the construction of office and residential complex for the Mines Safety Department of the Government of Bihar. The petitioners contended that the lands were not arable or waste lands, that the notification under Section 4 and the direction under Section 17(4) could not be issued together, that no declaration under Section 6 of the Act could be made after three years from the date of publication of the notification under Section 4, that alternative lands were available for acquisition, and that successive notifications in respect of the same lands established mala fide on the part of the acquisitioning authority.
Finding of the Court:
The court held that the petitioners failed to establish that the lands in question were not waste and arable lands, and that the direction under Section 17(4) of the Act was applicable to the instant case. The court also held that it was permissible to issue a notification under Section 4 of the Act and a direction under Section 17(4) of the Act on the same day, and that the two notifications could be published simultaneously. However, the court held that in every case of acquisition under the Land Acquisition Act, a notification under Section 4 of the Act must be followed by declaration under Section 6 of the Act, notwithstanding the fact that in a given case a direction has been made under Section 17(4) of the Act dispensing with the requirement of Section 5A of the Act. The court further held that the issuance of the direction under Section 17(4) of the Act was a colourable exercise of power, since the facts and circumstances of the case indicated that there was no real urgency, as no steps whatsoever were taken for a period for three years after issuance of notification under Section 4(1) of the Act.
Issues: 1. Whether the lands in question were waste and arable lands, making the direction under Section 17(4) of the Act applicable? 2. Whether it was permissible to issue a notification under Section 4 of the Act and a direction under Section 17(4) of the Act on the same day, and whether the two notifications could be published simultaneously? 3. Whether in every case of acquisition under the Land Acquisition Act, a notification under Section 4 of the Act must be followed by declaration under Section 6 of the Act, notwithstanding the fact that in a given case a direction has been made under Section 17(4) of the Act dispensing with the requirement of Section 5A of the Act? 4. Whether the issuance of the direction under Section 17(4) of the Act was a colourable exercise of power.
Ratio Decidendi: 1. The court held that the petitioners failed to establish that the lands in question were not waste and arable lands, and that the direction under Section 17(4) of the Act was applicable to the instant case. 2. The court held that it was permissible to issue a notification under Section 4 of the Act and a direction under Section 17(4) of the Act on the same day, and that the two notifications could be published simultaneously. 3. The court held that in every case of acquisition under the Land Acquisition Act, a notification under Section 4 of the Act must be followed by declaration under Section 6 of the Act, notwithstanding the fact that in a given case a direction has been made under Section 17(4) of the Act dispensing with the requirement of Section 5A of the Act. 4. The court held that the issuance of the direction under Section 17(4) of the Act was a colourable exercise of power, since the facts and circumstances of the case indicated that there was no real urgency, as no steps whatsoever were taken for a period for three years after issuance of notification under Section 4(1) of the Act.
Final Decision: The court quashed the notification issued under Section 4(1) of the Act and the direction under Section 17(4) of the Act, and quashed the entire acquisition proceedings initiated by issuance of notification under Section 4(1) of the Act published in the gazette on 16-1-1978.
1. The petitioners herein claiming to be the owners of the lands sought to be acquired under the provisions of the Land Acquisition Act (hereinafter referred to as "the Act"), have preferred this writ application praying that the notification issued under sec. 4 of the Act and under S.17(4) of the Act published in the gazette on 1-1-1978 be quashed.
2. The writ application was filed on 25-2-1981 and was admitted for hearing on 10th Mar. 1981. An order was passed staying further proceedings in the Land Acquisition case pending disposal of this writ application.
3. The impugned notification under S.4 of the Act was published in the District Gazette on 1-1-1978. The total area sought to be acquired is 15.82 acres, out of which 15.52 acres was described as being arable land while the remaining 0.30 acre was described as banjar land in village Seraidhela. The public purpose for which the land is sought to be acquired is for construction of office and residential complex for the Mines Safety Department of the Government of Bihar and its employees. The cost of the acquisition is to be borne by the Government. The latter part of the same notification mentions that since the Government of Bihar was satisfied that the land was waste and arable land and its immediate acquisition was essential, it was directed under S.17(4) of the Act that the provisions of S.5A of the Act shall not apply to the acquisition in question. The District Land Acquisition Officer of the Government of Bihar as well as the staff of the department of Mines Safety were authorised to enter upon the lands for the purpose of survey etc. under S.4(2) of the Act. 3A. The petitioners have not challenged that the acquisition is for a public purpose, but the acquisition is sought to be challenged on other grounds. Mr. Debi Prasad, learned counsel appearing on behalf of the petitioners has raised five contentions in support of the writ petition. He firstly submitted that the lands in question are not arable or waste lands and hence no direction could be made under S.17(4) of the Act dispensing with the provision of sec. 5A of the Act. Secondly he contends that no notification could be issued under S.4 of the Act together with a direction under S.17(4) of the Act, and hence the entire proceeding is invalid. Thirdly he contends that in view of the proviso to S.6 of the Act, no declaration under section 6 of the Act can be made after three years from the date of publication of the notification under S.4 of the Act. Fourthly, he submitted that in the facts and circumstances it was apparent that alternative lands were available for acquisition, but in spite of that the lands of the petitioners are sought to be acquired which is illegal. Lastly he has contended that successive notifications in respect of the same lands cannot be issued as this established mala fide on the part of the acquisitioning authority. It was also submitted that no steps whatsoever were taken for a period of over three years after the date of publication of the notification under S.4 of the Act, and hence invoking of the provisions of S.17(4) of the Act was a colourable exercise of power as there was no urgency whatsoever. Sri N.K. Prasad, learned counsel appearing on behalf of the respondent 3 and Shri Narayan Roy, G.P. 2 appearing on behalf of the State, have refuted all the contentions raised by the petitioners. It has been contended by Mr. N.K. Prasad that the writ petition ought to be dismissed on the ground of delay alone.
4. Mr. Prasad appearing on behalf of respondent No. 3 contended that the notification under S.4 of the Act together with a direction under S.17(4) of the Act was published as early as on Ist of Jan. 1978. As the instant writ petition was filed on 25th Feb. 1981, i.e. almost after three years and two months, he contended that on the ground of delay alone this writ application ought to be dismissed. He has placed reliance upon a judgment of the Supreme Court in Hari Singh V/s
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