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Allahbad High Court
JAGDISHSAHAI
Baldeo Singh - Appellant
Versus
State of U. P. - Respondent
Decided On : 04/15/1964
LAND ACQUISITION - NOTIFICATION UNDER SECTIONS 4 AND 17 - VALIDITY - SECTION 17(1) - INTERPRETATION - DELEGATION OF LEGISLATIVE FUNCTIONS - SECTION 5-A - APPLICABILITY - COMBINED NOTIFICATION UNDER SECTIONS 4 AND 17 - VALIDITY - NOTIFICATION UNDER SECTION 6 - VALIDITY - FRAUD ON STATUTE - PUBLIC PURPOSE.
Fact of the Case:
The petitioners challenged the validity of the composite notification under Sections 4 and 17, as well as under Section 6 of the Land Acquisition Act, on the grounds that the notification under Section 17(4) was invalid, Section 17(1) was violative of Articles 14 and 19 of the Constitution, there was an excessive delegation of essential legislative functions, the combined notification under Sections 4 and 17 was invalid, the impugned notification under Section 6 was invalid, and there was a clear fraud on the statute or colourable exercise of power by the State Government.
Finding of the Court:
The court held that the notification under Section 17(4) was valid, Section 17(1) was not violative of Articles 14 and 19 of the Constitution, there was no excessive delegation of essential legislative functions, the combined notification under Sections 4 and 17 was valid, the impugned notification under Section 6 was valid, and there was no fraud on the statute or colourable exercise of power by the State Government.
Issues: 1. Whether the notification under Section 17(4) was invalid? 2. Whether Section 17(1) was violative of Articles 14 and 19 of the Constitution? 3. Whether there was an excessive delegation of essential legislative functions? 4. Whether the combined notification under Sections 4 and 17 was invalid? 5. Whether the impugned notification under Section 6 was invalid? 6. Whether there was a clear fraud on the statute or colourable exercise of power by the State Government?
Ratio Decidendi: 1. The court held that the notification under Section 17(4) was valid because the definition of 'waste' and 'arable land' in the Act did not support the petitioners' argument, and the Legislature intended to include land covered by trees and crops in the scope of the notification. 2. The court held that Section 17(1) was not violative of Articles 14 and 19 of the Constitution because the policy of law and legal principles had been provided for by the Legislature, the question of urgency had to be decided objectively, and the right to own property was subject to the laws made by the State. 3. The court held that there was no excessive delegation of essential legislative functions because the Legislature could not have exercised the power to decide whether or not acquisition in cases of urgency was urgent, and the power to make the provisions of Section 5-A of the Act inapplicable in cases of urgency flowed from Section 17 of the Act, which was framed by the Legislature. 4. The court held that the combined notification under Sections 4 and 17 was valid because there was nothing in Section 4 or Section 17 which required the publication of a notification under Section 17 only after the publication of a notification under Section 4 of the Act, and even if the simultaneous publication of a notification under Sections 4 and 17 of the Act was technically incorrect, it would not render the notification under Section 17 of the Act to be invalid. 5. The court held that the impugned notification under Section 6 was valid because it was issued about 25 or 26 days after the notification under Section 4 was issued and was published seven days after the notification under Section 6 was issued. 6. The court held that there was no fraud on the statute or colourable exercise of power by the State Government because the land was being acquired for the Headquarters of Bengal Engineering Group so that a children's school could be opened there, which was a public purpose.
Final Decision: The petition was dismissed with no order as to costs.
ORDER :- This writ petition which has been filed on behalf of Baldeo Singh, Mamraj Singh and Smt. Triveni is directed against the land acquisition proceedings pending in respect of a plot of land which is covered by Leeche and mango trees and forms an orchard. The notification under S. 4 of the Land Acquisition Act (hereinafter referred to as the Act) was published in the U.P. Gazette dated November 17, 1962. In this notification there is also a reference to a direction made by the State Government applying the provisions of S. 17(1) of the Act and rendering the provisions of S. 5-A of the Act inapplicable. That part of the notification reads :-
"The Governor being of the opinion that the provisions of Sub-S. (1) of S. 17 of the said Act are applicable to the said Section to direct that the provisions of S. 5-A of the Act shall not apply."
The composite notification under Ss. 4 and 17, mentioned above, is dated October 22, 1962. This was followed by a notification dated November 17, 1962, under S. 6 of the Act which was published in the State Gazette dated November 24, 1962. In the composite notification under S. 4 read with S. 17(1) of the Act referred to above, the purpose for which land is acquired has been stated as follows :-
"Required by Headquarters Bengal Engineering Group and Centre for opening a Children's school". In the notification under S. 6 of the Act, the same purpose is mentioned. Mr. V.K.S. Chaudhary, the learned counsel for the petitioners, has challenged the validity of the composite notification under Ss. 4 and 17 as also under S. 6 of the Act on the following five grounds :-
1. That the notification under S. 17(4) is invalid in so far as the land in dispute is an orchard which cannot be comprehended either by the expression 'waste land' or by the expression arable land with the result the proceeding under S. 17 of the Act cannot be taken in respect of this plot.
2. That the provisions of S. 17(4) of the Act are invalid on the ground of being violative, firstly of Art. 14 and secondly of Art. 19 of the Constitution. It is also contended that there has been an excessive delegation of essential legislative functions in favour of the appropriate Government in so far as they have been given a power to set at naught the provisions of S. 5-A of the Act.
3. That the combined notification under Ss. 4 and 17 of the Act is invalid.
4. That the impugned notification under S. 6 is invalid on the ground that it was issued the same day on which the notification under S. 4 was published in the State Gazette.
5. That there has been a clear fraud on the statute or colourable exercise of power by the State Government in so far that they have pretended to acquire the land for "Headquarters Bengal Engineer Group and Centre for opening a Children's school," in order to bye-pass the provisions of Ss. 38, 39, 40 and 41 of the Act.
No other submission has been made before me. I will take the submissions seriatim.
2. Mr. Chaudhary contends that S. 17(1) provides that only in case of a waste or arable land can the powers under that Section be exercised. He reads waste to mean 'barren' and arable as capable of cultivation but not under actual cultivation. It is not necessary to dilate on the point because the argument is fully met by Sub-S. (3) of S. 17 which reads :-
"In every case under either of the preceding Sub-Sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them-caused by such sudden dispossession and not accepted in S. 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for me land under the provisions herein contained."
This Sub-Section clearly contemplates a notification, in respect of the land covered by trees and crops also. It is, therefore, obvious that the Legislatu
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