Compliance with the provisions of S. 5-A of the Land Acquisition Act is necessary before a notification can be issued under S. 6.

Headnote:
LAND ACQUISITION - Kanpur Urban Area Development Act, 1945 (U. P. Act 6 of 1945) - S. 114 - Land Acquisition Act, 1894 (1 of 1894) - Ss. 4, 5-A, 6, 17(1), 17(1-A), 17(4) - Acquisition of land for planned development - Applicability of S. 114 of Kanpur Act - Compliance with S. 5-A of Land Acquisition Act - Necessity - Interpretation of S. 17(1-A) - Power to take possession of land other than waste or arable land - Whether includes power to dispense with compliance with S. 5-A.
Fact of the Case:

The Government of U. P. sanctioned a scheme known as Pechbagh Delepurwa Scheme No. XX (hereinafter referred to as scheme No. XX) of the Improvement Trust Kanpur. In 1955, a subsidized industrial housing scheme was sponsored by the Housing Department of the U. P. Government. The decision in this connection was taken by the Government of U. P. in May 1955. Thereafter on January 6, 1956 a notification was issued under S. 4 of the Land Acquisition Act, (No. 1 of 1894) by the Governor of U. P. to the effect that the two plots in dispute were required for the construction of tenements in the fourth phase of the subsidized industrial housing scheme sponsored by the Government of U. P. as well as for general improvement and street scheme No. XX of the Board. This was followed by a notification under S. 6 of the Land Acquisition Act on January 31, 1956. The appellant filed a writ petition challenging the acquisition proceedings on the grounds that the Kanpur Act applied and the schedule thereto had not been followed, and that the Governor could not issue the notification under S. 6 of the Land Acquisition Act without first taking action under S. 5-A thereof.
Finding of the Court:

1. The Kanpur Act has no application to the acquisition of land by the Government under the Land Acquisition Act, for public purpose, even though that purpose may be the purpose of the Board. 2. Compliance with the provisions of S. 5-A of the Land Acquisition Act is necessary before a notification can be issued under S. 6. 3. Section 17(1-A) of the Land Acquisition Act, as inserted by the U. P. Act XXII of 1954, gives merely power to take possession of land other than waste or arable land where the land is acquired for or in connection with sanitary improvements of any kind or planned development. It does not dispense with the requirement of compliance with S. 5-A.
Issues: 1. Whether the Kanpur Act applies to the acquisition of land by the Government under the Land Acquisition Act, for public purpose, even though that purpose may be the purpose of the Board? 2. Whether compliance with the provisions of S. 5-A of the Land Acquisition Act is necessary before a notification can be issued under S. 6? 3. Whether S. 17(1-A) of the Land Acquisition Act, as inserted by the U. P. Act XXII of 1954, dispenses with the requirement of compliance with S. 5-A?
Ratio Decidendi: 1. The scheme of the Kanpur Act clearly shows that the Board frames a scheme and then decides to acquire the land for itself under S. 71 with the previous sanction of the State Government. If it so decides, S.114 applies to such an acquisition by the Board for itself with necessary modification in the Land Acquisition Act. 2. The scheme of the Land Acquisition Act makes it clear that compliance with the provisions of S. 5-A is necessary before a notification can be issued under S. 6. 3. Section 17(1-A) of the Land Acquisition Act, as inserted by the U. P. Act XXII of 1954, gives merely power to take possession of land other than waste or arable land where the land is acquired for or in connection with sanitary improvements of any kind or planned development. It does not amend S. 17(4) to include S. 17(1-A) and therefore does not dispense with the requirement of compliance with S. 5-A.
Final Decision: The appeals were allowed and the notification under S. 6 and that part of the notification under S. 4, which said that the Governor was pleased to direct that under sub-sec. (4) of S. 17, the provisions of S. 5-A shall not apply, were set aside. The rest of the notification under S. 4 was allowed to stand and it was open to the Government to proceed with the acquisition after action is taken under S. 5-A and thereafter to issue a notification under S. 6 of the Land Acquisition Act.

Judgment

WANCHOO, J. : These two appeals on certificates granted by the Allahabad High Court raise common questions and will be dealt with together. It will be enough if we mention the facts in appeal No. 167, for the facts in the other appeal are exactly the same, except that the lands in dispute are different in the two cases, though lying in the same area in the city of Kanpur.

2. Deoki Nandan, appellant in appeal No. 167, is the lessee of two plots in Anwarganj, Bans Mandi, Kanpur, and his lease is for a period of 99 years from 1943. On these plots there exists a mill known as Om Cotton Ginning and Oil Mill. Besides the mill there are pacca godowns also on the plots and two thirds of the area is under buildings while one third is open land paved with bricks. No part of the land is waste or arable.

3. It appears that in February 1932 the Government of U. P. sanctioned by notification a scheme known as Pechbagh Delepurwa Scheme No. XX (hereinafter referred to as scheme No. XX) of the Improvement Trust Kanpur. It may be mentioned that the improvement Trust Kanpur has now been replaced by the Development Board Kanpur (hereinafter referred to as the Board) by the Kanpur Urban Area Development Act. No. VI of 1945. (hereinafter referred to as the Kanpur Act), which repealed the U. P. Town Improvement Act, No. III of 1920, in so far as it applied to Kanpur. It is not clear what happened to scheme No. XX after 1932;but it does appear that it was not fully carried out.

4. It appears that in 1955 a scheme known as subsidized industrial housing scheme was sponsored by the Housing Department of the U. P. Government. This scheme was to be put in force in four phases, and we are concerned in the present appeal with the fourth phase. For that phase the Government of India had sanctioned over rupees two crores and it was decided to build 6973 tenements of which 1368 were to be in an Ahata on the Hamirpur road. We are concerned with this part of the scheme for the lands in dispute are in this locality. The decision in this connection was taken by the Government of U. P. in May 1955. Thereafter on January 6, 1956 a notification was issued under S. 4 of the Land Acquisition Act, (No. 1 of 1894) by the Governor of U. P. to the effect that the two plots in dispute were required for the construction of tenements in the fourth phase of the subsidized industrial housing scheme sponsored by the Government of U. P. as well as for general improvement and street scheme No. XX of the Board. This was followed by a notification under S. 6 of the Land Acquisition Act on January 31, 1956. That notification further said that the case being one of urgency the Governor was pleased under sub-ss. (1) and (1-A) of S. 17 of the Land Acquisition Act to direct that the Collector of Kanpur, though no award under S. 11 has been made, might on the expiration of the notice mentioned in S. 9(1) take possession of lands, buildings and structures forming part of the land mentioned in the schedule for public purposes. Then followed a notice under S. 9 by the Collector on February 10, 1956 which said that possession would be taken over 15 days after the issue of the notice i.e. on February 25, 1956. On receipt of this notice, Deoki Nandan appellant filed his objections before the Collector on February 21, 1956. Two days later, on February 23, 1956, he filed the writ petition in the High Court out of which the present appeal has arisen

5. In this writ petition two main points were urged on behalf of the appellant. It was first urged that as the acquisition was for the purposes of scheme No. XX of the Board action had be taken in accordance with S. 114 of the Kanpur Act and the schedule thereto and as no action had been so taken, the proceedings for acquisition were bad. In the second place, it was urged that it was not open to the Governor to issue the notification under S. 6 of the Land Acquisition Act without first taking action under S. 5-A thereof. It is not in dispute that n

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