LAKSHMI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) A notification under Section 4 of the Land Acquisition Act (Act I of 1894 as amended by Bihar Acts) was issued by the order of the Governor of Bihar saying that "for development of residential neighbourhoods to provide for housing facilities for various income groups along with various local services and modern amenities to facilitate planned growth of the City of Patna in the villages of Manipura No. 2, Rajapur No. 3, Dujra No. 4 and Dhakanpura No. 7 to be named as Shri Krishnapuri the Government of Bihar required certain lands to be acquired. The description of the land was given in the notification but it excluded the portions covered by houses and orchards. In exercise of the powers conferred by Section 17(4) of the Land Acquisition Act, the State Government decided that in view of the project, provisions of Section 5A of the Act shall not apply to the owners of these lands. The notification further stated that officers of the Lund Acquisition Office, Fatna, were authorised to enter upon and survey land aud to do all other acts required for the proper execution or their work as provided for or specified in Sub-section (2) of Section 4 of the said Act. This notification was dated the 19th of January, 1961 but was published in an Extraordinary issue of the Bihar Gazette on the 24th of January 1961. Some of owners of the land made an application under Article 226 of the Constitution to this Court on the 11th of May, 1961, challenging that notification, on one of the grounds that no proceeding for acquisition of land could he taken under the Land Acquisition Act when the Patna Improvement Trust Act provided for acquisition of land for its purposes. That objection has now been finally overruled by the Supreme Court. Another ground was that exemption of the provisions of Section 5A from application to the proceedings, in exercise of the powers conferred by Section 17(4) of the Land Acquisition Act, was illegal and without jurisdiction. Thirdly, the petitioner alleged that the notification was tainted with discrimination, inasmuch as other owners, whose lands were proposed to be acquired in the vicinity, were not deprived of the advantage under Section 5A of the Act, in the notification issued under section 4, in respect of their lands for the same purpose. It will be necessary to deal with those two objections in this petition.

(2.) A memorandum containing proposals for development of certain areas under ihe Patna Improvement Trust ' was prepared on the 26th of February, 1960, and on that basis the Land Acquisition Officer Patna, sent a report to the Collector of Patna, on the 6th August 1960, stating therein what actual area, under cultivation should be notified under Section 4 of the Act, read with Section 17(4) exempting the operation of the provisions under Section 5A. Finally, the impugned notification was issued by the State Government. Section 4 is about preliminary investigation and provides for publication of preliminary notification, when it appears to the Government that land in any locality, is needed or is likely to be needed for any public purpose. The substance of such notification is to be given by public notice, at convenient places, in the locality. Section 5A provides that any person interested' in any land, which has been notified under section 4, may within thirty days, after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. Sub-clause (2) of that section says that such objections shall be made to the Collector in writing and the objector shall be given an opportunity of being heard, whereafter the Collector will submit the case for the decision of the appropriate Government with his recommendations and the decision of the Government on the objections shall be final. After the disposal of such objections, comes the declaration of intended acquisition under section 6 by the Government. Following that, public notice is to be given at convenient places on or near die land to be taken, under section 9, giving the particulars of the land and asking all parsons, interested in the land to appear before the Collector and state the nature of their interests in the land and the amount and particulars of their claim to compensation for such interests and also their objections if any, to the measurements made of the land. These are provided in Section 9. After hearing the parties and making any other enquiry that may be necessary, the Collector is to make an award of compensation payable for the land under Section 11, The scheme of the Act thus shows that at the preliminary stage, when a notification is issued under section 4, any person, interested in any land covered by such notification, has a chance to object to the acquisition itself and on consideration of the same, the Government may abandon their desire to acquire the land. If, in spite of such objection, the Government still thinks that the land should be acquired for any public purpose or lor a Company, then they will make a declaration to that effect and publish the same in the official Gazette, giving the details of the land, the purpose for which it is needed and its approximate area. Such declaration is conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be. At that stage, and thereafter, it is no longer open to any one, interested in such land, to object to the acquisition. They can only put in their claim in respect of the amount of compensation payable to them or measurement of the land. Thus, Section 5A which was introduced by an amendment in 1923 (Act 38 of 1923) gives a valuable right to a person interested in the land, sought to be compulsorily acquired by the Government. In the usual process, after making the award under Section 11. the Collector may take possession of the land which shall, thereupon, vest absolutely in Government, free from all encumbrances (Section 16). In cases of urgency, whenever the appropriate Government so directs, the Collector, before any award is made, may take possession of any waste or arable land needed for public purposes or for a Company and thereupon such land shall vest in the Government. This special power to take possession in cases of urgency has been given under Section 17 Sub-section(1). In Sub-section (2) similar power is given to take possession of any land for the maintenance of traffic of any Railway Administration etc. It is to be noticed that the power is not confined in this sub-section, to any particular kind of land, such as waste or arable land as stated in Sub-section (1). Sub-section (3) of that section provides that Collector, at the time of taking such urgent possession, shall offer to the persons interested compensation for the standing crops on such land and for any other damages sustained by them caused by such sudden dispossession. Sub-section (4) is important for our purposes. It provides:

(3.) On an analysis of the provisions under Sub-section (4) of Section 17. one can notice two things: Absolute option has been given to the Government to exclude the operation of Section 5A and to publish the declaration under Section 6 forthwith after the notification under Section 4(1): but this option is exercisable in respect of any land to which Sub-section (1) or (2) of Section 17 can apply. In Sub-section(2), as I have already pointed out, there is no restriction in regard to the nature of the land, where the Government can take immediate possession after a declaration under Section 6 of the Act. In the present case, Sub-section(2) has no application because the land is not required for any of the purposes mentioned in that sub-section. Under Sub-section(1), power is given to the Government to direct the Collector to take immediate possession after declaration under Section 6, or with consent of the persons interested, after the notification under Section 4(1). But that is restricted to only two kinds of land, namely, waste or arable land. Any other land which may be needed for a public purpose or for a Company and can be acquired by the Government under the Land Acquisition Act will not be subject to the provisions of Sub-section(1) of Section 17, and, therefore, will not come within the purview of Sub-section (4) of that section, so as to exclude the application of Section 5A of the Act. In the present case, the petitioner can successfully challenge the impugned notification, in that respect, if they can show that the land, in which they are interested and which has been notified, does not come under waste or arable land. It is neither party's case that the land in question is waste land. For the State and for the improvement Trust, the land is claimed to be arable, whereas the petitioners contend that it is not so.