RAMJIDAS Vs. STATE OF U P

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution the petitioners have challenged the validity of the notifications issued under Ss. 4 (1) and 6 of the Land Acquisition Act (briefly stated as the Act), dated 30th October, 1975, and 29th October, 1975, respectively. The petitioners claim themselves to be the bhumidhars of the land in dispute situate in village Kukuda, district Muzaffarnagar. A notification under S. 4 of the Act dated 14th March, 1975 was published by the State Government notifying a number of plots which were likely to be required for public purpose namely, for the construction of market, yard for Krishi Utpadan Mandi Samiti, Muzaffarnagar (hereinafter referred to as the Mandi Samiti). The petitioners filed a writ petition in this court on 10th July, 1975, challenging the validity of the said notification issued under S. 4 of the Act. The petition was admitted, and the respondents were restrained from dispossessing the petitioners from the land forming subject matter of the acquisition proceedings. During the pendency of the above writ petition, the State Government issued another notification on 5th August, 1975, cancelling the notification dated 14th March, 1975. The writ petition filed challenging the notification dated 14th March, 1975, was thereafter dismissed on the ground that it had become infructuous. Subsequently, the State Government issued another notification under S. 4 (1) of the Act on 30th October, 1975. The Governor, being of the opinion that the case was one of urgency and, as such, the provisions of Sub-sec. (1) of S. 17 of the Act were applicable to the land, was further pleased to direct under Sub-sec. (4) of S. 17 of the Act that the provisions of S. 5-A would not apply to the acquisition of the land in dispute. In this notification, the purpose disclosed for acquisition was the construction of market yard for Krishi Utpadan Mandi Samiti, Muzaffarnagar. This was followed by a notification under S. 6 of the Act. The petitioners have filed the present writ petition challenging these notifications under Ss. 4 and 6 of the Act.

(2.) THE first ground urged in support of the writ petition by the petitioners was that a substantial portion of the land was covered by constructions and, therefore, the State Government did not have power to dispense with the mandatory provisions of S. 5-A of the Act inasmuch as under Sub-sec. (4) of S. 17, the power of dispensing with S. 5-A could be applied only with respect to waste and arable land and not with respect to the land over which constructions were standing on the date of the notification issued under S. 4 (1) of the Act. THE petitioners gave the details of the various constructions which according to them were standing on the land in dispute on the aforesaid date. In the counter affidavits filed on behalf of the Collector, Muzaffarnagar, as well as the Mandi Samiti, the fact that the constructions were standing on the land in dispute has been denied. THE aforesaid respondents in their separate affidavits asserted that there were no constructions on the land on the date on which the notification under S. 4 (1) of the Act had been issued.

(3.) THIS would show that S. 17 confers special power on the appropriate Government to be exercised in appropriate cases of urgency. Under Sub-secs. (1) and (2), the State Government is empowered to take possession of land notified for acquisition even though an award is not made. THIS power, however, could be exercised only in respect of waste and arable land. By Sub-sec. (4) power has been conferred upon the appropriate Government to direct that the provisions of S. 5-A relating to the filing of the objection would not be applicable. As these powers could under the Act be exercised, only in respect of lands described in Sub-secs. (1) and (2), by Sub-s. (1-A), added by U. P. Amendment Act XXII of 1954, power was conferred on the appropriate Government to take possession under Sub-sec. (1) even in respect of lands other than waste and arable. It, however, appears that even under the amended provision, the State Government was not authorised to use the power conferred by Sub-sec. (4) to a case falling under Sub-sec. (1-A). Accordingly, the provisions of S. 5-A had to be complied with in all the cases of urgency. Reference may be made to a ease of the Supreme Court reported in Sarju Prasad Saha v. State of U. P. 1966 All LJ 1 : (AIR 1965 SC 1763) where the Supreme Court held that by the Land Acquisition Act No. XXII of 1954, the State legislature did not provide that the provisions of S. 5-A could be dispensed with in cases of lands other than waste and arable. It, however, appears that subsequently by U. P. Act No. VIII of 1974, the Legislature amended S. 17 (4) of the Land Acquisition Act and made a provision to that effect. After amendment, S. 17 (4) reads as under (at pages 1765, 1766 of AIR): "In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub- section (1), or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of S. 5-A shall not apply, and, if it does so direct, a declaration may be made under S. 6 in respect of the land at any time after the publication of the notification under S. 4, Sub-sec. (1)."