The Secretary, Revenue And Land Reforms Department, Govt. of Bihar v. Patna
Case Details
Patna High Court CWJC No.21800 of 2011 (4) dt.01-08-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21800 of 2011 ====================================================== 1. Md. Ibrahim Son of Late Bashir Resident of Ward No.1, Panchayat Araria Basti, Village-Pokharia Tola, P.O. And P.S. Araria Bairgachhi, District-Araria. 2. Md. Salim Son of Late Md. Jamil R/O Ward No.-9, Village-Manikpur, P.O. And P.S.-Araria Bairgachhi, Distt.-Araria. .... .... Petitioner/s 1. The State of Bihar. 2. The Secretary, Revenue And Land Reforms Department, Govt. of Bihar, Versus Patna. 3. The Deputy Secretary, Revenue And Land Reforms Department, Govt. of Bihar, Patna. 4. The District Magistrate, District-Araria, Bihar. 5. The District Land Consolidation Officer, District-Araria, Bihar.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sajid Salim Khan, Advocate For the Respondent/s : Mr. Sanjay Kr No.1 SC 12 Mr. Birendra Kumar, A.C. to S.C. 12 ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 4 01-08-2013 Heard the parties. 2. The two petitioners have approached this Court in the present proceeding under Article 226 of the Constitution of India assailing the validity, correctness and propriety of the notification dated 13.4.2011 (Annexure-1) issued under the signature of respondent No. 3, whereby altogether 74.299 acres of lands situate at Mouza-Araria, Anchal-Araria, District-Araria, including the lands belonging to the petitioners are sought to be acquired by invoking Section 17(4) of the Land Acquisition Act, 1894 ( in short Act) and by excluding the provisions of Section 5A of the Act for the purpose of construction of headquarter of 28th Battalion of S.S.B. Patna High Court CWJC No.21800 of 2011 (4) dt.01-08-2013 2 3. Both the petitioners claim to be economically disadvantaged persons belonging to B.P.L. category. Petitioner No. 1, namely, Md. Ibrahim, claims to be owner of a parcel of 90 decimals appertaining to Khata No. 229, Khesra No. 1825, whereas petitioner No. 2, namely, Md. Salim, claims to be owner of a parcel of an area of 2.28 acres appertaining to Khata No. 958, plot No. 1776P. 4. Learned counsel appearing on behalf of the petitioners submits that lands under dispute are the only source of livelihood of the two petitioners. According to him, in the factual background of the case, respondents are not justified in invoking urgency clause under Section 17(4) of the Act. By referring to letter dated 31.8.2008 (Annexure-3) written by the Commandant of 28th Battalion, S.S.B., Araria, to the respondent No. 5, it is submitted that requisition was made as far back as in the year 2008 for acquisition of 75 acres of land for the purpose of construction of headquarter of 28th Battalion of S.S.B. at Araria. Requisite amount of money was also deposited in March, 2008 itself for the purpose of such acquisition. But for three long years, no action was taken by the respondent-State of Bihar and its functionaries and suddenly after three long years, by the impugned notification dated 13.4.2011 (Annexure-1), 74.299 acres of lands are sought to be acquired by invoking the urgency clause under Section 17(4) of the Act. It is further submitted that Section 5A of the Act gives a valuable right to the land owners to file an objection with respect to the notification issued under Section 4 (1) of the Act for acquisition of land belonging to them and this valuable right cannot be permitted to be taken away by the respondent authority at their own whims and without there being Patna High Court CWJC No.21800 of 2011 (4) dt.01-08-2013 3 any valid justification for invoking the aforesaid urgency clause. It is pleaded that last para of the impugned notification, whereby Section 17(4) of the Act has been invoked may be set aside and the respondents may proceed with the regular procedure for acquisition of lands under dispute by allowing the petitioners and other land owners to raise their objection under Section 5A of the Act. In support of the above contention, he has placed reliance on the recent judgment of the Hon’ble Apex Court in the case of Radhy Shyam(Dead) through LRS. and others Vrs. State of Uttar Pradesh & Others [ (2011) 5 SCC 553] specially para-77 and in the case of Devendra Singh & Others Vrs. State of Uttar Pradesh & Others [ (2011) 9 SCC 551]. 5. Learned Standing Counsel No. 12 appearing on behalf of the respondents has opposed the prayer made in the present writ petition and has submitted that, in fact, except the petitioners almost all other land owners have given their consent with respect to their lands for acquisition, which have been included in the impugned notification dated 13.4.2011. It is contended that the District Araria is situate at Indo Nepal border and is a sensitive area. Therefore, according to him, the headquarters of 28th Battalion, S.S.B. is proposed to be constructed at Araria for the safety and security of the country. However, he has fairly conceded that though the requisition was made by the S.S.B. in the year 2008 but no further action could be taken for some time, yet, according to him, Section 17(4) of the Act can be invoked by the State authorities for acquisition of lands in view of urgency for establishment of the headquarters of 28th Battalion of S.S.B at Araria. In support of the above contention, he has placed reliance on a judgment of the Hon’ble Apex Court in the case of Patna High Court CWJC No.21800 of 2011 (4) dt.01-08-2013 4 Deepak Pahwa and Others Vrs. Lt. Governor of Delhi and Others [ (1984) 4 SCC 308]. 6. On a query made by this Court, learned State counsel has not been able to explain the delay of three years for issuance of impugned notification dated 13.4.2011, though the requisition was already made by the S.S.B. as far back as in the year 2008. It is pointed out by him that though two counter affidavits have been filed on behalf of the respondents stating therein that except the petitioners others are not raising their objection with respect to the impugned notification, yet no rejoinder affidavit has been filed till date on behalf of the petitioners disputing the correctness of the aforesaid assertions made on behalf of the respondents. 7. After having heard the parties and taking into consideration the entire materials available on record, this Court finds that the present proceeding is not a public interest litigation filed by the petitioners. These two petitioners have challenged the impugned notification basically with respect to the lands belonging to them, which are sought to be acquired by invoking urgency clause under Section 17(4) of the Act. Other land owners have not joined in the present proceeding either for opposing the present petition or for supporting the claims raised on behalf of the petitioners. There does not appear to be any objection raised on their behalf with respect to the impugned notification dated 13.4.2011. However, even if, others would not have any grievance with respect to the impugned notification, but that does not mean that petitioners cannot raise their legitimate grievance with respect to the impugned notification. The ownership of the petitioners with respect to the lands claimed by them have not been disputed Patna High Court CWJC No.21800 of 2011 (4) dt.01-08-2013 5 by the respondents in their counter affidavit. Admittedly, requisition was made by the S.S.B. as far back as in the year 2008. The impugned notification was issued after three long years on 13.4.2011. Despite sufficient opportunity given to the respondents, no explanation has been furnished for such an unusual delay of three years. 8. In the aforesaid background, this court is of the opinion that the respondent State was not justified in invoking the urgency clause under Section 17(4) of the Act. Now, law has been laid down by the Hon’ble Apex Court in Radhy Shyam Vs. State of Uttar Pradesh (supra) specially para-77 of the judgment. In view of the principles enunciated by the Hon’ble Apex Court in para-77 of that case and in view of the factual background of the present case noted above, this Court has no option but to quash the impugned portion of the impugned notification dated 13.4.2011 (Annexure-1) so far as the lands of the petitioners are concerned, and so far it has invoked the urgency clause under Section 17(4) of the Act for excluding the provision of Section 5A of the Act. 9. For the reasons recorded above, the writ petition stands allowed to the extent indicated above. Respondents may proceed with the acquisition proceeding with respect to the lands of the petitioners also by following regular procedure including procedure prescribed under Section 5A of Act. However, the parties are left to bear their own costs. sudip/- (Birendra Prasad Verma, J)