G M H E SCHOOL Vs. LOKNATH SAHAY

JUDGEMENT

(1.) A land acquisition proceeding was started by the Collector of Gaya under the Land Acquisition Act, 1894 (hereinafter called the "Act") for the purposes of G. M. H. E. School, Jehana-bad. Out of the total lands sought to be acquired, certain plots appertaining to various khatas belonged to the respondent Loknath Sahay. The area of the lands, which were the subject-matter of acquisition and 'which belonged to him, was 2.28 acres. His objection in the land acquisition proceeding was that the lands formed part and parcel of his buildings, and, if the portions proposed to be acquired were taken out, that would impair the use of the houses, as they were reasonably required for them. In this regard a dispute cropped up and a Question arose as to whether the lands proposed to be acquired under the Act did or did not form part of the houses within the meaning of Section 49 (1) of the Act. Hence, the Collector made a reference under Section 49 (1) to the District Judge of Gaya to determine the question aforesaid. The reference eventually came to be heard by the Additional District Judge, Second Court, Gaya. The learned Additional District Judge felt persuaded to go into the question of the validity of the land acquisition proceeding as it was attacked in argument on behalf of Loknath Sahay. Rightly or wrongly, he took the view that there was non-compliance with the mandatory requirement of certain provisions of the Act and hence the land acquisition proceeding was ultra vires. On the main question, which was the subject-matter of reference before him, he held that the lands sought to be acquired were being used for agricultural purposes and, if acquired, they would not impair the use, of the existing buildings. Having held so, he further added that, if the owner of the lands wanted that the whole lands should be acquired, the Government had either to acquire the whole or give up the part But, since the entire declarations made under the Act had been found to be ultra vires, there was no proceeding at all and no land could be acquired under the same.

(2.) It ought to have been stated that the reference was contested on behalf of the school only, and not by the State of Bihar. The school came up in a miscellaneous first appeal to this Court under Section 54 of the Act, being Miscellaneous Appeal No. 285 of 1954. In that appeal, the State of Bihar, through the Collector, was impleaded as respondent No. 2. The appeal was dismissed by a learned Single Judge of this Court on the 20th July, 1967. The learned Single Judge took the view that the question as to whether the land acquisition proceeding was ultra vires or not could be gone into in a reference made under Section 49 of the Act, and, since, in his opinion, the proceeding was ultra vires, he maintained the order of the lower Court in that regard. Since the iudgment and Order of the learned Single Judge was against the State of Bihar also, the school and the State both have preferred this Letters Patent Appeal is which Loknath Sahay was impleaded as the sole respondent,

(3.) Mr. Lakshman Sharan Sinha, appearing for the appellants, submitted that the scope of any reference made under the Act, whether it is under Section 18, 30 or 49, is a limited one. The question of validity of the land acquisition proceeding cannot be raised in any case. As a matter of fact, it was not raised by the owner of the lands in his petition before the Collector. For the first time it was raised before the reference Court at the time of argument. On merits, the State and the school did not get adequate opportunity to show that the decision as to the proceeding being ultra vires was erroneous in law. We have not thought it necessary to examine the correctness of all the submissions made on behalf of the appellants, as, in our opinion, this appeal has got to succeed on the ground that, in a reference made under Section 49 of the Act, the question of the validity of the land acquisition proceeding could not be gone into.