KAUSHLENDRA PRASAD NARAIN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two civil writ jurisdiction cases were referred to Full Bench by a Division Bench by its order dated 18th of Dec., 1969, on the ground that these cases involve the same question of law as was involved in civil writ jurisdiction case No. 384 of 1967 which had earlier been referred to Full Bench and that the three cases should be heard together. Civil writ jurisdiction case No. 384 of 1967 has been disposed of earlier as it was not pressed without deciding the question of law for the decision whereof it was referred to Full Bench. These two cases, however, have been heard together and are being disposed of by this judgment

(2.) The quesion of law to be decided to these cases is whether Section 23 (1) (first) of the Land Acquisition Act (hereinafter referred to as 'the Act') is ultra vires. Section 23 (1) (first) reads as follows:--

(3.) It may be advantageous to state here and now substance of some of the provisions of the Act (as they apply to this State after amendments made by this State) which will help in appreciating the contention of learned counsel for the petitioners, as stated above, and that of learned counsel for the Stale which will be mentioned hereafter, Section 4 provides that a notification stating that some land is needed or likely to be needed for any public purpose shall be published in the official gazette and the Collector shall cause public notice of the substance of such notification to be given at. convenient places in the locality where the land is situate when it appears to the appropriate Government that such land is needed or likely to be needed for any public purpose. Publication of such a notification entitles any officer either generally or specially authorised by such Government in this behalf and his servants and workmen to enter upon and survey and take levels of any land in such locality; to dig or bore into the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work, if any, proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches, and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle. Seven clays' notice in writing is needed for entry as aforesaid into any building or upon any enclosed court or garden attached to a dwelling house unless consent of the occupier has been taken. Section 5 lays down that at the time of the entry as aforesaid the officer so authorised shall pay or tender payment for all necessary damage to be done as aforesaid. In case there is any dispute as to the sufficiency of the amount so paid or tendered, the officer shall at once refer the dispute to the decision of the Collector or other Chief Revenue Officer whose decision shall be final as to the quantum of damages. Section 5-A entitles any person interested in any land which has been notified under Section 4 (1) as being needed or likely to be needed for a public purpose or for a company to object to the acquisition of the 1and or ot any land in the locality as the case may be within thirty days after the publication of the notification under Section 4 (i) at some conspicuous place in the vilage in which the land is situate or of the service of the copy thereof on him whichever is later. The objection has to be made in writing to the Collector who must give the objector an opportunity of being heard either in, person or by a pleader and the Collector shall after hearing all such objections and making such further enquiry, if any, as he thinks necessary, shall decide the objection. In some cases the appropriate Government may itself call for the record of the proceeding held by the Collector and pass such order as it may think fit. As required by Section 6, after considering the Collector's report, if any, under Section 5-A, the appropriate Government, if satisfied, or the Collector himself, if satisfied, after hearing the objection, if any, under Section 5-A, that any particular land covered by the notification under Section 4 (1) is needed for a public purpose or for a company shall make a declaration to that effect in writing. This is subject to the provisions of Part VII of the Act. Every such declaration must be published in the official gazette stating the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected. The Land Acquisition (Amendment and Validation) Act (13 of 1967) added a proviso to Sub-section (1) of Section 6 of the Act that no declaration in respect of any particular land covered by a notification under Section 4 (1) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, shall be made after the expiry of three years from the date of such publication. After these formalities are over and in cases where the declaration is made by the appropriate Government, it directs the Collector to take order for the acquisition of the land as required by Section 7.