STATE OF UTTAR PRADESH Vs. KESHAV PRASAD SINGH

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the Division Bench of the Allahabad High Court in writ petition No. 1179/-77 dated the July 19,1977. The facts lie in a short compass. The land comprising 205 links situated in plot No. 702 which comprises a total area of 580 links was acquired in the year 1963 for the construction of PWD office building Sharjuddinpur in Azamgarh city. While making construction, it was indeed, as found by the civil Court, at a suit of the respondent that the State had encroached upon 140 links of the land in the said plot No. 702 which was subsequently demarcated as plot Nos. 702/A and described as plot Nos. 702/4 (68 links) and 702/5 (72 links). The civil Court issued a mandatory injunction directing the PWD Department to remove the encroachment. The State while carrying the matter in appeal, simultaneously invoked its power of eminent domain and issued notification under S.4(1) of the Land Acquisition Act, 1894 (for short, 'the Act') which was published on October 26, 1972. The said notification came to be questioned in the High Court in this writ petition on two grounds and the High Court found, firstly, that the power exercised under S.17(1) was not justified since the land is neither waste nor arable land and that, therefore, the notification dispensing with the inquiry under S.5(A) was clearly illegal. It was also found that since the Civil Court that (sic) the appellants have encroached upon the land and issued a mandatory injunction for demolition of the compound wall constructed thereon, the exercise of power under S.4(1) was colourable, since the appellants did not admit that the property belongs to the respondents and had carried the matter in appeal to the District Judge. Accordingly, the notification under S.4(1) and the declaration under S.6 came to be quashed. Thus, this appeal by special leave.

(2.) It is contended for the State that the view taken by the High Court is clearly unsustainable. When the State found that there is mandatory injunction issued by the Court holding that the respondent is owner of the land and that the construction was made on a land which is not part of the land acquired in 1963, the Government exercised the power of eminent domain and that, therefore, the State is entitled to issue the notification under S.4(1). It is also contended that since the compound wall was already constructed and as mandatory injunction was operating against the appellant for its demolition, the Government was justified to exercise its power under S.17(1) with S. 17(4) dispensing with the inquiry under S.5A of the Act.

(3.) Sri Manoj Swarup, the learned counsel appearing for the respondent in his usual vehemence contends that this is a clear case of mala fide and colourable exercise of the power.In view of the fact that the Government had not admitted the right of the respondent and the State had taken a different stand that it was a mistaken identity of the property and since the civil Court recorded a finding that the respondent is the owner of the land the Government, without surrendering possession or demolition of the compound wall cannot justify its unlawful action by exercising the power of eminent domain. It cannot issue the notification under S.4(1) to nullify the decree of injunction of the civil Court. Thus, it would constitute colourable exercise of power and this Court would be reluctant to justify such action under Art.136 to support such highhanded and illegal action on the part of the State. It is also contended that since land is not an arable land, the exercise of power under S.17(1) read with S.17(4) is clearly illegal.