SHIVDEV SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India, the petitioner has obtained a rule against the State of Bihar, respondent No. 1, and the Chairman, Patna Improvement Trust, respondent No. 2, to show cause why an appropriate writ, order or direction should not be issued quashing the scheme, the order of acquisition and the order for eviction passed under the Bihar Town Planning and Improvement Trust Act, 1951 (Act 35 of 1951), and directing them to forbear from enforcing the Scheme and the order and evicting the petitioner from holding No. 217 of the Patna Municipal Corporation. It appears that the owners of the permises comprised in the said holding were added as respondents 3 and 4 in the application with the permission of the Court on 19-9-61, but the M.J.C. application stood dismissed as against respondent No. 4, on 19-3-62 for non-compliance of order No. 12 dated 12-3-62. (2) The petitioner's case in the application filed on 13-9-61 is that he 'owns a shop in the area commonly known as New Market and holds the same on rent from the landlord' and that he 'had been carrying on trade in that shop from before 23rd May, 1951'. His further case is that in February, 1956, a notice of the Scheme was first issued by the Patna Improvement Trust constituted under the Town Planning and Improvement Trust Act and was communicated to all owners of the houses in the area known as New Market, Patna. The notices issued in February, 1956 were superseded and the Trust issued fresh notices in September, 1957 to the owners of the houses aforesaid. The petitioner's further case is that 'no notice was issued to the petitioner who occupies the Holding No. 217, Circle No. 7, in Ward No. 2 and has his shop therein where he carries on his trade' and that 'without giving notice to the occupiers, the said Trust proceeded with the finalisation of the scheme and without hearing the petitioner, and other occupiers, the Government sanctioned the Scheme'. The petitioner's case proceeds that 'no notice under Section 9 was issued to the petitioner nor was the petitioner heard on either the acquisition or compensation' and that 'the petitioner has been asked by the landlord to vacate the premises by the 15th September, 1961, for the purpose of its acquisition by the Trust under the Planning Act'.

(2.) In the petition, the petitioner has challenged the order of acquisition or eviction as being illegal and without jurisdiction, for the failure of respondent No. 2 to comply with the mandatory provision of notice in the said Act and give an opportunity to the petitioner to he heard. At the time of hearing of the application, it was also submitted that, if on the interpretation of Section 48(1) (b) of the Act, it be held that the Trust was required to serve a notice on the occupier of each premises, whose name is entered in the municipal assessment list and not on an occupier like the petitioner whose name was not entered in the municipal assessment list, the Act is ultra vires and unconstitutional inasmuch as, it does not provide for an opportunity of hearing the person whose property is going to be affected and so, due to the defect in the procedural aspect of the law, it is an unreasonable restriction on the right of the petitioner to hold his property and to carry on trade or business in it. No attack, however, has been made on the substantive aspect of the law. The order of acquisition and the award made under the Land Acquisition Act, 1894 (Act I of 1894) have been challenged as being ultra vires and void for non-service of notice on the petitioner under Section 9 of the said Act.

(3.) The petitioner in the 19th paragraph of his application has said:--