ZUBEDA BEGUM Vs. UNION OFINDIA

JUDGEMENT

(1.) THESE two petitions were heard together and are being disposed of by this common judgment as the same Questions of law arise in both the petitions.

(2.) ON the 9th March, ' 1970, the Governor of Uttar Pradesh issued two notifications under Section 4 (1) of the Land Acquisition Act 1894. Both the noti fications mentioned that the public pur pose which was to be subserved by acqui sition of the lands described therein was "provision of married Officers' accommoda tion, Indian Air Force in District Gorakh-pur." One of the notifications also in cluded the direction for taking possession of the lands under Section 17(1) of the Act and a further declaration dispensing with the provisions of Section 5-A under Section 17(4). Since urgency provisions were applied by this notification, it will be hereafter referred to as "the urgency notification.' The other notification did not apply the urgency provisions and called upon the interested parties to make objections under Section 5-A. This noti fication would be hereafter referred to as "the ordinary notification". On the 21st March, 1970, corresponding notifications under Section 6 of the Act were issued. The urgency notification included a large number of plots covering an area of 97.81 acres; the ordinary notification dealt with two plots only, both together admeasuring 1.56 acres. The plots sought to be acquir ed under the two notifications are in the neighbourhood of the Indian Air Force Airport at Gorakhpur

(3.) THE public purpose mentioned in the two notifications is evidently the purpose of the Union and the notifications ought to have been normally issued in the name of the President of India. However, the Government of India have entrusted, in exercise of the powers under Arti cle 258 (1) of the Constitution, all func tions under the Land Acquisition Act to the State Government, A copy of the relevant notification is attached as an annexure to the counter-affidavit filed on be half of the State Government. Sri S. C. Khare, learned counsel for the petitioners in one of the petitions, contended that Article 258 (1) of the Constitution enables the President to entrust to a State Govern ment or to its officials functions In relation to "any matter to which the executive power of the Union extends and the functions under the Land Acquisi tion Act cannot be entrusted under Arti cle 258 (1) to the State Government as they do not relate to matters to which the executive power of the Union extends. He developed the argument by re ferring to Article 73 (1) of the Constitu tion which implies, in view of the pro viso to that clause, that the executive power of the Union does not extend to matters with respect to which the Legis lature of States also have power to make laws. It may be recalled that the legis lative power for "Acquisition and requisi tioning of property" was, when the Con stitution was originally adopted, distri buted over all the three Legislative Lists: Entry 33 in the Union List dealt with "Acquisition or requisitioning of property for the purpose of the Union", while Entry 36 in the State List referred to "Acquisi tion or requisitioning of- property except for the purposes of the Union subject to the provisions of Entry 42 of List III" and Entry 42 in the Concurrent List pro vided for "Principles on which compensa tion for property acquired or requisition ed for the purpose of the Union or of a State or for any other public purpose is to be determined and the form and the manner in which such compensation is to be given". By the Constitution (Seventh Amend ment) Act, 1956, Entry 33 in the Union List and Entry 36 in the State List were omitted altogether and Entry 42 In the Concurrent List was amended to read "Acquisition and requisitioning of pro perty". Thus a single general Entry on the subject of acquisition and requisition ing of property was introduced in the Con current List. It has been argued by Srf Khare that, in view of new Entry 42. In the Concurrent Last, both Parliament and the State Legislature came to possess power to make laws on matters with res pect to acquisition and requisitioning of property and, accordingly, in the light of the proviso to Article 73 (1) of the Con stitution, the executive power of the Union ceased to extend to matters with respect to acquisition and requisitioning of property, with the result that Arti cle 258 (1) which restricts the scope of entrustment only to matters to which exe cutive power of the Union extends could not be invoked for entrusting the func tions in relation to acquisition and requisi tioning of property to the State Govern ment or their officials. The argument, however, is no more open for discussion in view of the decision of the Supreme Court in Jayanti Lal .Amrat Lal v. F. N. Rana, AIR 1964 SC 648 wherein after consideration of a similar argument the majority judgment came to the conclusion that the executive power of the Union did extend to matters relating to acquisition of property; it was pointed out that the opening words in Article 73 (1) "Subject to the provisions of this Constitution" abridged the full force of the proviso to that Article and since Article 298 inter alia, extended the power of the Union to the acquisition of pro perty, the executive power of the Union extended also to functions relating to acqui sition of property. However, Sri Khare sought to argue that the reasonings of the Supreme Court based on Article 298 seems to require reconsideration as, according to him. Article 298 does not deal with compulsory acquisition. In support of this argument, he referred to Article 31 (2) wherein the expression "compulsorily acquired" is used and com pared it with the expression in Article 298 which speaks of "acquisition, holding and disposal of property". It was contend ed that the scope of the word "acquisition" the Article 298 should take color from the words "holding and disposal" which are used in juxtaposition with the word "acquisition" and in that event Article 298 ought to be properly construed_as referring to acquisition by negotiation only and not also to compulsory acquisi tion. In my opinion, the word "acquisi tion" in Article 298 has been used in a compendious sense including compulsory acquisition and the fact that the word is followed by "holding and disposal" is not sufficient reason to narrow down the scope of the word "acquisition". Apart from that, the Supreme Court did take aid of Article 298 in holding that the executive power of the Union extends to matters relating to acquisition of property according to the law of the land. I. for all these reasons, hold that the entrust ment of the function under the Land Acquisition Act by the President to the] State Government is valid.