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IN THE HIGH COURT OF ALLAHABAD
B. N. Sapru and S. D. Agarwala, JJ.
AJADUL BUX - Appellant
Versus
STATE OF U.P. - Respondents
Civil Misc. Writ Petn. 1620 Of 1972
Decided On : 02/16/1982
LAND ACQUISITION ACT - SECTION 4, 5-A, 17 - NOTIFICATION UNDER SECTION 4 DISPENSING WITH INQUIRY UNDER SECTION 5-A - VALIDITY - CONDITIONS PRECEDENT - URGENCY - MATERIAL ON RECORD - ARBITRARY EXERCISE OF POWER - INVALIDITY OF NOTIFICATION.
Fact of the Case:
Petitioners challenged the validity of the notification under Section 4 of the Land Acquisition Act, alleging that the State Government failed to establish urgency and deprived them of the opportunity to object under Section 5-A. The notification under Section 6 was issued more than two years after the notification under Section 4.
Finding of the Court:
The court held that the State Government failed to provide any explanation for the urgency, and the notification under Section 4 was passed without considering the circumstances of the case. The court also held that the purpose for which the land was sought to be acquired did not justify denying an inquiry under Section 5-A.
Issues: Whether the State Government had established urgency to dispense with the inquiry under Section 5-A of the Land Acquisition Act.
Ratio Decidendi: The court held that the condition precedent for the exercise of power under Section 17(4) of the Act, which dispenses with the inquiry under Section 5-A, was not fulfilled in this case. The court relied on the Supreme Court's decision in Narayan v. State of Maharashtra, which held that the authority concerned must apply its mind to the question of urgency and consider the need to dispense with the inquiry under Section 5-A.
Final Decision: The court allowed the petition, quashed the notifications under Section 4 and Section 6, and directed the parties to bear their own costs.
( 1 ) THIS is a petition under Article 226 of the Constitution. By means of the present petition proceedings under the Land Acquisition Act in respect of plots Nos 1309, 1310, 1311, 1312, 1313, 1318 and 1319 of village Gani Bundwara, pergana Patialla, Dist, Etah has been challenged. The notification Under Section 4 (1) of the Land Acquisition Act, hereinafter referred to as the Act was issued on 15th Dec. 1969. The case of the petitioners is that they have got their own residential building, family graveyard and mosque in plot No. 1310 and over plots nos. 1312 and 1313 they have their own residential house and some portion of the land appurtenant thereto. It has been further alleged in the petition that the petitioners did not receive any notice Under Section 4 of the Act nor any other information was given to the petitioners. Subsequently a notification was issued on 17th Feb, 1972 Under Section 6 r. w. Section 17 (1) of the Act and the possession of the land in dispute was sought to be taken over from the petitioners on the basis of the said notification. Hence the necessity of filing the present petition in this court.
( 2 ) THE petition was admitted on 14th Mar, 1972 and the respondents were directed not to dispossess the petitioners from the plots in dispute. This interim order was confirmed on 25th july 1972. The result, therefore, is that the petitioners possession over the plots in dispute still remains.
( 3 ) THE petitioners have challenged the validity of the notification Under Section 4 of the Act on the ground that there was no urgency at all and the State Government could not have dispensed with the provisions of Section 5-A of the Act resulting in serious prejudice to the petitioners.
( 4 ) NOTIFICATION under Section 4 Sub-section (1) of the Act was issued on 15th Dec. 1969. This notification was published in the U. P. Gazette dt. 27th Dec. 1969. The land was sought to be acquired for a public purpose namely for construction of water tanks, godown, Engineers residence and installation of tube well for water works of Municipal Board, Gang Dundwara, in the district of Etah. In para 2 of the said notification it wag stated as under :-
"the Governor being of opinion that the case is one of urgency and as such the provisions of sub-section (1) of Section 17 of the said Act was applicable to the land is further pleased under sub-section (4) of the said section to direct that the provisions of Section 5-A of the said Act shall not apply. "
( 5 ) NO further action was taken in pursuance of the above notification for more than two years and on 18th Feb. 1972 a notification Under Section 6 of the Act was issued. This notification was published in the U. P. Gazette dt. 4th Mar. 1972 In para 2 of the said notification the governor directed that since the case is one of urgency and Section 17 (1) applied therefore, the possession may be taken of the arable land though no award had been made Under Section 11 of the Act. ( 6 ) THE petitioner challenged the notification Under Section 4 of the Act on the ground that the state Govt. had failed to make out any case of urgency and as such they were illegally deprived of being heard as required by Section 5-A of the Act. In the counter-affidavit of Dharmendra singh filed on behalf of the State Government no explanation at all has been given as to why the case was of such an urgency that the petitioners were deprived of the opportunity Under Section 5-A of the Act. The position therefore, which emerges from the facts on record is that the notification Under Section 4 of the Act had been issued on 15th Dec. 1969 by virtue of which the provisions of Section 5-A of the Act were dispensed with and thereafter a notification Under section 6 of the Act was issued on 18th Feb. 1972. The very fact that the notification Under section 6 of the Act was issued after more than two years establishes prima facie that in fact there was no urgency at all. In the absence of any material
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