RAM PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) Whether the Special Land Acquisition Officer/Collector, Allahabad has exercised his power for acquisition of land and for issuance of notification dated 9-12-87, published in the newspaper dated 20-12-87 (Annexure-2 to the petition). Under Section 4(1) read with Section 17(4) of the Land Acquisition Act, 1894, (for short the Act), dispensing with the provisions of Section 5A of the Act in good faith and if not, whether such notification was a colourable exercise of power or fraud on executive power and exercise of such power was vitiated, and whether the right of summary hearing under Section 5A of the Act could be dispensed with under the circumstances of the case, are the short questions of law for our consideration in this petition filed by the petitioner under Article 226 of the Constitution of India, seeking a relief for a writ of certiorari for quashing the notification dated 9-12-87/20-12-87 (Annexure-2) issued under Section 4 read with Section 17(4) the Act.

(2.) The counter and rejoinder affidavits have been exchanged and learned counsel for the parties agreed that the writ petition may be decided on merits. We accordingly proceed to decide it on merits.

(3.) The facts leading to the present petition are these. The petitioner was recorded as tenant of plot No. 171/5 in village Barud Khana Uprhar, Tahsil Chail, Distt. Allahabad since 1320 F (1912 A.D.). The petitioner apprehended his dispossession as the authorities tried to dispossess him as his land in the middle was sought to be acquired for construction of an approach road to the west of old Curzon bridge over the river Ganges. The petitioner had filed a writ petition (Writ Petition No. 9658 of 1985) (for short the first petition), which was allowed on 30th November, 1987 (Annexure-I to this petition) by a Division Bench of this Court, of which one of us (Hon. R.M. Sahai, J.) was a member. That writ petition was allowed and; respondents were directed not to interfere with petitioners' possession for making approach road over plot No. 171/5 except in accordance with law. However, just after nine days from the decision of the first writ petition in favour of the petitioner, the Special land Acquisition Officer/Collector, Allahabad, issued a notification under suction 4(1) read with Section 17(4) of the Act dispensing with the provisions of Section 5A of the Act on the ground of urgency for construction of approach road. The present petition has been filed with the averments that the petitioner is Bhumidhar of the plot, hence he could not be ejected and there was no urgency, rather the notification dated 9-12-87 was the result of, mala fides, legal and otherwise attributable to respondents and even though the respondents were parties to first writ petition but they did not comply with the direction in that judgement. In the absence of urgency the provisions of Section 17(4) of the Act could not be invoked, particularly when in the first writ petition, this Court had directed a that opposite parties were labouring under misapprehension both of law and fact when they decided to take the approach road on assumption that since it was Government Land it was not necessary for them to take any proceeding and the Government could take proceedings only in accordance with law and not by show of force or authority. Further it was held by the Division Bench on page 24 of the Paper book as follows :