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2013 Supreme(Pat) 1186
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAMESH KUMAR DATTA, J.
(19.11.2013)
CWJC Nos. 8617, 12714, 12934 of 2013
Anarash Rai (in 8617)
Arun Kumar Singh
& Ors. (in 12714) : Petitioners
Deo Kumar Rai & Ors. (in 12934)
Vs.
The Union of India through
the Secretary, Department : Respondents
of Home Ministry & Ors. (in all)
For the Petitioner: Mr. Yashraj Bardhan.
For the State : M/s Tej Bahadur Singh, S. Hussain Majeet, Krishna Chandra.
For ITBP (UOI) : Mr. S.N. Shamshi.
Headnote:Land Acquisition Act, 1894–Sections 17(4) & 5-A–Emergency Acquisition of land–notification for emergency acquisition of land issued for establishing a center of Indo-Tibetan Border Police Force in the State of Bihar to check the naxal activities–Law has been laid down by the Apex Court that even though the public purpose may be laudable, it does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard–Only in a case of real urgency, such provisions can be invoked and requirement of hearing the landowner or other persons can be dispensed with–before encluding the application of Section 5-A, the authorities concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting enquiry under Section 5-A will frustrate the public purpose for which land is proposed to be acquired–the decision to establish ITBP at the place in question may itself be necessary in the interest of public order but the same alone cannot justify the invoking the urgency clauses–impugned notification quashed–Writ application allowed. (Paras 8 and 9)
(2011)5 SCC 553 at para 77–Referred.
Heard learned counsel for the petitioners and learned counsels for the respondent-State and for Union of India.
2. The petitioners seek quashing, in all the three writ applications, of the notification dated 9.4.2013 under Section 4 of the Land Acquisition Act by which the provisions of Section 17(4) of the said Act have been invoked providing that Section 5-A of the Act shall not apply to the said acquisition and also the consequential notifications under Sections 6 and 9 of the Act.
3. The facts of the case need not be recorded in detail. Suffice it to say that by letter no. 14/DLA, Saran (ITBP)-09/2013 (letter No. 1058 dated 9.4.2013) published in local Hindi daily newspaper, proceedings for acquisition were initiated and certain lands in village Kotheyan, P.S. Jalalpur, Thana No. 242, Pargana- Wal, District-Saran, Chapra were sought to be acquired for the construction of a Camp for Indo-Tibetan Border Police Force, an armed force of the Union. In the said notification it was further mentioned that provisions of Section 17(4) of the Act was applied to the acquisition and, accordingly, the provision of Section 5-A shall not be applied with respect to the lands sought to be acquired.
4. Learned counsel for the petitioners submits that there is no justification for issuing a notification taking away the right of the petitioners to object the acquisition under Section 5-A of the Act and the respondents are unable to show such an emergency for the purpose of legally invoking the provisions of Section 17(4) of the Act. It is submitted that proposal for such acquisition had been initiated in early 2012 and the petitioners upon learning about the same had filed the representations before the District Magistrate-cum-Collector, Saran on 16.8.2012 with a request not to acquire the fertile lands of the village and instead to consider acquisition of the chunk of land situated west to Chhapra-Baniapur Road which is barren land situated at a considerable distance from the village, a copy of the application had been sent to the Home Minister, Government of India, New Delhi as well as the Chief Minister of Bihar by registered post on 13.8.2012 itself followed by further representation on 10.10.2012, 8.11.2012, 14.12.2012 and 2.1.2013. Thereafter the authorities have taken substantial time and ultimately came out with the notification in April, 2013 but excluding the valuable legal rights of the petitioners to object under Section 5-A of the Act which is totally unjustified.
5. In support of his stand learned counsel for the petitioners relies upon a decision of the Apex Court in the case of Radhy Shyam (Dead) through Lrs. & Ors. Vs. State of Uttar Pradesh and Ors.: (2011) 5 SCC 553, in para-77 of which the following propositions have been laid down:–
“77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out:–
(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on account of public exigency and for public good. - Dwarkadas Shrinivas Vs. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal Chowdhuri Vs. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar Vs. State of Gujarat (1995) Supp. (1) SCC 596. (ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana (2003) 5 SCC 622; State of Maharashtra Vs. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan Vs. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011. (iii) Thoug
