Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2118 of 2013 ====================================================== 1. Himanshu Chandra Choudhary S/O Late Avanish Chandra Choudhary Resident Of Village- Nehra, P.S. Manigachhi, District- Darbhanga Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Secretary, Revenue & Land Reforms Department, Land Acquisition Directorate, Government Of Bihar, Patna 3. The Secretary, Building Construction Department, Construction Division, Patna 4. The Collector, Darbhanga 5. The District Land Acquisition Officer, Darbhanga .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kripa Nand Jha & Mr. Birendra Kumar For the Respondent/s : Mrs. Binita Singh, A.C. to P.AAG ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 6 02-07-2013 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner seeks quashing of the notification dated 06.01.2011 of the State Government published in the daily news paper “Prabhat Khabar” on 19.01.2011, in so far as it concerns the land of the petitioner, by which 5.62 acres of land is proposed to be acquired invoking urgency provisions of section 17(4) of the Land Acquisition Act (hereinafter referred to as the said Act) and thereby excluding the right of the landowner to file objection under section 5(A) of the said Act. The petitioner along with his family members
Legal Reasoning
Patna High Court CWJC No.2118 of 2013 (6) dt.02-07-2013 2 were admittedly in possession of about six bighas of land in different R.S. Plot Nos. 476, 462 and 459. By the impugned notification 5.62 acres of land is to be acquired for construction of Sub-divisional Office, Biraul and for the residence of the government employees of the said Sub-division and out of the same 3.75 acres of land of the family of the petitioner has been acquired in which his share is to the extent of about two acres as per the stand of the petitioner. It is further stated that after publication of the impugned notification, father of the petitioner and his uncle filed Title Suit No. 26 of 2011 in which an order of status quo was granted on 17.03.2011 which was ultimately recalled by order dated 22.12.2011 against which the petitioner‟s father filed Misc. Appeal on 17.01.2012 but the said appeal was dismissed on 29.10.2012 on the ground that the Civil Court has no jurisdiction in such matters appertaining to the Land Acquisition Act. Thereafter the present writ application has been filed after simultaneously filing an application for withdrawal of the said title suit which was subsequently withdrawn. It is the stand of the petitioner that there was no urgency at all in the present matter as admittedly the proposal for construction of the Sub-divisional Office and residential complex was mooted on 06.07.2001 which was then rejected and Patna High Court CWJC No.2118 of 2013 (6) dt.02-07-2013 3 subsequently an alternative proposal was made on 24.08.2006 which was also not accepted by the government. Ultimately, a proposal was made in the year 2007-08 for acquisition of 5.62 acres of land pursuant to which the present notification was issued
Legal Reasoning
in January, 2011. It is stated by learned counsel for the petitioner that the same is evident from letter dated 29.01.2008 of the Sub- divisional Officer, Biraul which has been annexed as Annexure-A to the counter affidavit. In view of the aforesaid facts, learned counsel for the petitioner submits that invocation of section 17(4) of the said Act and thereby excluding the right of the landowner to file objection under the provisions of section 5 (A) of the Act is not a valid exercise of power by the respondents authorities and the sole intention of the same was to prevent from exercising the valuable rights of the land owners including the petitioner, to raise such objections under section 5(A) of the Act. It is submitted that the present acquisition for the purpose of constructing a new office of the sub-division as also residential complex cannot be said to be such an urgent matter as to invoke the provisions of section 17(4) of the Act excluding the application of section 5(A) of the Act and in the present circumstance, considering the period of ten years which took the Patna High Court CWJC No.2118 of 2013 (6) dt.02-07-2013 4 proposal to take final shape, the invocation of the said provision under section 17(4) of the Act is clearly not justified. In support of the aforesaid stand, learned counsel for the petitioner relies upon a decision of the Supreme Court in the case of Laxman Lal (dead) and Another Vs. State of Rajasthan and others; (2013) 3 SCC, 764, in paragraph 27 of which has been held as follows :- “27. In this case, as noted above, the preliminary Notification under section 4 was issued on 1.5.1980. After lapse of about 7 years on 19.3.1987, one fine morning the State Government issued declaration under section 6 without complying with the mandate of section 5- A and in that declaration it was stated that it has invoked its powers conferred under section 17(1) read with section 17(4) of the 1953 Act and dispensed with the provisions of Section 5-A. Had the State Government intended to hold and complete the inquiry under section 5-A, it could have been done in few months. However, no steps for commencement of the inquiry under section 5-A were even the State Government. We find that a very valuable right interested conferred on under section 5-A has been taken away without any justification. It is so because the bus-stand construction would have taken some time. The exercise of the power by the State Government under section 17(1) read with Section 17(4) of the 1953 Act and dispensation of inquiry under section 5-A cannot be legally sustained and has to be declared as such.” landowner/person taken by the Learned counsel for the petitioner also relies upon another decision of the Supreme Court in the case of Dev Patna High Court CWJC No.2118 of 2013 (6) dt.02-07-2013 5 Sharan and others Vs. State of U.P. and others; 2011(3) PLJR, 246 (S.C.) in paragraph 41 of which it has been held as follows :- “For the reasons aforesaid, we hold that the State Government was not justified, in the facts of this case, to invoke the emergency provision of Section 17(4) of the Act. The valuable right of the appellants under section 5-A of the Act cannot be flattened and steamrolled on the „ipsi dixit‟ of the executive authority. The impugned notifications under Sections 4 and 6 of the Act in so far as they relate to the appellants‟ land are quashed. The possession of the appellants in respect of their land cannot be interfered with except in accordance with law.” Learned counsel for the State, on the other hand, submits that the petitioner has approached this Court after delay of nearly two years from the date of notification and, thus, this writ application is fit to be dismissed on the ground of delay. It is further submitted that the cousins of the petitioner had filed C.W.J.C. No. 4892 of 2012 which was disposed of by an order dated 15.03.2012 with a direction to the authority concerned to decide the representation of the petitioner of that case by a speaking order within a period of three months. Thereafter, they had again filed C.W.J.C. No. 1083 of 2013 which
Decision
was disposed of by order dated 10.04.2013 holding that the order dated 14.12.2012 passed by the Collector-cum-District Magistrate, Darbhanga shows that the land acquisition proceeding is virtually Patna High Court CWJC No.2118 of 2013 (6) dt.02-07-2013 6 in its final stage and notices have already been issued under section 12(2) of the Land Acquisition Act for accepting compensation amount and it is not in dispute that many of the land holders have already accepted and received compensation amount and, as such, there is no question for interference with the notification issued in the year 2011. It is, thus, submitted that the petitioner is not entitled to any relief in the matter. On a consideration of the submissions of learned counsels for the parties, I find sufficient force in the submission of the learned counsel for the petitioner. So far as the question of delay is concerned, the father of the petitioner, who has since died, had immediately approached the civil court, though under wrong advice and order of status quo had been obtained by him. Ultimately, upon the Misc. Appeal against the recall of the order of status-quo having been dismissed, the petitioner immediately took steps to file the present writ application. Thus, the father of the petitioner and thereafter the petitioner have been continuously acting to invoke their remedy under the law and there is no question of delay in approaching this Court by the petitioner. It is also evident from the admitted facts on the basis of the letter dated 29.01.2008 of the Sub-divisional Officer, Biraul that the matter of construction of Sub-division office, Patna High Court CWJC No.2118 of 2013 (6) dt.02-07-2013 7 Biraul and the residential complex have been under consideration since the year 2001 and, thus, ultimately when the said proposal was accepted and acquisition proceeding started ten years later in the year 2011, there was no justification for invoking the emergency provision as held by the Apex Court. The right of the landowner and the person interested under section 5(A) of the Act is a very valuable right and cannot be taken away without proper justification. In my view, construction of new Sub-divisional Office as also the residential governmental complex around it can not be of such urgency so as to invoke the provision of section 17(4) of the Act. As a matter of fact, considering the cases coming up before this Court, there can be no doubt that the said provisions are being repeatedly misused by the respondent State Government with the sole object to prevent the land owners/interested persons from exercising their valuable right under section 5(A) of the Act and not on account of any real urgency or emergency. The fact that others have chosen to receive the compensation cannot have any effect so far as the protection of valuable rights of the petitioner is concerned. This writ application is, accordingly, allowed. The impugned notification dated 06.01.2011 published in the daily Patna High Court CWJC No.2118 of 2013 (6) dt.02-07-2013 8 news paper “Prabhat Khabar” (Annexure-4) is, accordingly, quashed in so far as it concerns the petitioner. If possession of the land in question has been taken from the petitioner, the same should be restored to him without any delay. It would, however, be open to the respondent authorities to take fresh steps in the matter of acquisition in accordance with the provisions of the Land Acquisition Act without, however, invoking emergency provisions. Amin/- (Ramesh Kumar Datta, J)