Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21534 of 2012 ====================================================== 1. Most. Fahmida Khatoon, wife of Late Md. Umar. 2. Md. Abuzar, son of Late Md. Umar (Transrferees from Md. Qamar) son of Late Abdur Rahman). 3. Md. Nasar, son of Late Md. Umar (Transrferees from Md. Qamar, son of Late Abdur Rahman). 4. Irfana Khatoon, daughter of Late Md. Umar. 5. Rukhsana Khatoon, daughter of Late Md. Umar. 6. Md. Azhar, son of Abdur Rahman. ……Petitioners 1st Set. 7. Parwez Ahmad, son of Late Abdul Aziz. 8. Md. Jawed, son of Late Md. Zubair, grandson of Abdul Aziz. 9. Shahnaz Bano, daughter of Late Md. Zubair and grand daughter of Late Abdul Aziz. 10. Ishrat Khatoon, daughter of Late Md. Zubair and grand daughter of Late Abdul Aziz. 11. Sanobar Khatoon, daughter of Late Md. Zubair and grand daughter of Late Abdul Aziz. 12. Gulshan Khatoon, daughter of Late Md. Zubair and grand daughter of Late Abdul Aziz. 13. Amna Khatoon, daughter of Late Abdul Aziz. 14. Parweena Khatoon, daughter of Late Abdul Aziz. 15. Najma Khatoon, widow of Late Md. Sami, son of Late Abdul Aziz. 16. Razi Ahmad, son of Late Md. Sami, grandson of Late Abdul Aziz. 17. Zaki Ahmad, son of Late Md. Sami, grandson of Late Abdul Aziz. 18. Rafi Ahmad, son of Late Md. Sami, grandson of Late Abdul Aziz. 19. Raza Ahmad, son of Late Md. Sami, grandson of Late Abdul Aziz. 20. Reyaz Ahmad, son of Late Md. Sami, grandson of Late Abdul Aziz. 21. Rajda Khatoon, daughter of Late Md. Sami and grand daughter of Late Abdul Aziz. 22. Shaheda Khatoon, son of Late Md. Sami, grandson of Late Abdul Aziz. 23. Wajida Khatoon, son of Late Md. Sami, grandson of Late Abdul Aziz. 24. Md. Faiz Alam, son of Late Md. Shoaib, grand-son of Late Abdul Rauf. 25. Md. Shabbir Alam, son of Late Md. Shoaib, grand-son of Late Abdul Rauf. 26. Shabbana Yasmeen, son of Late Md. Shoaib, grand-son of Late Abdul Rauf. 27. Farzana Khatoon, son of Late Md. Shoaib, grand-son of Late Abdul Rauf. 28. Mobina Khatoon, widow of Late Dr. Md. Murtaza. 29. Aftab Alam, son of Late Dr. Md. Murtaza, grand son of Abdul Rauf. 30. Mahe-Jebeen, Daughter of Late Dr. Md. Murtaza, grand daughter of Late Abdul Rauf. 31. Mahe-Laqua, daughter of Late Dr. Md. Murtaza, grand daughter of Abdul Rauf. 32. Md. Anwar, son of Late Abdul Rauf. 33. Md. Masood Alam, son of Late Abdul Rauf. 34. Aisha Khatoon, daughter of Late Abdul Rauf. …..Petitioners 3rd Set.
Legal Reasoning
Patna High Court CWJC No.21534 of 2012 (5) dt.27-11-2013 2 35. Md. Fuzail, son of Late Md. Fazlur Rahman. 36. Md. Firoz, son of Late Md. Fazlur Rahman. 37. Md. Afroz Son, son of Late Md. Fazlur Rahman. 38. Md. Afzal, son of Late Md. Fazlur Rahman. 39. Chaman Ara, daughter of Late Md. Fazlur Rahman. 40. Raushan Ara, daughter of Late Md. Fazlur Rahman. ….Petitioners 4th Set. 41. Md. Mumtaz, son of Late Abdul Bari. 42. Shamshad Ahmad, son of Late Abdul Bari. 43. Safeena Khatoon, daughter of Late Abdul Bari. 44. Zarina Khatoon, daughter of Late Abdul Bari. 45. Nasira Khatoon, daughter of Late Abdul Bari. 46. Farhana Khatoon, daughter of Late Abdul Bari. …..Petitioners 5th Set. All are residents of Village and P.O.- Waini, Police Station- Pusa, Police Out Post- Waini, District- Samastipur. .... .... Petitioner/s Versus 1. The State of Bihar through the Commissioner Cum Secretary, Department of Revenue & Land Reforms, Old Secretariat, Patna. 2. Under Secretary to the Govt., Department of Revenue & Land Reforms, Govt. of Bihar, Patna. 3. District Land Acquisition Officer, Samastipur.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Raghiv Ahsan, Sr. Advocate For the Respondent/s : Mr. Mrityunjay Kumar, AC to AAG-14. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 5 27-11-2013 Heard Mr. Raghib Ahsan, learned senior counsel appearing on behalf of the petitioners and Mr. Mrityunjay Kumar, learned Assisting Counsel to Additional Advocate General No.14 for the State. The writ petitioners have questioned the notification dated 13.9.2012 issued under section 4 and section 17(4) of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) and the declaration dated 14.9.2012 issued under section 6 of the said Act, whereby the respondent-authorities of the State Patna High Court CWJC No.21534 of 2012 (5) dt.27-11-2013 3 Government purported to acquire 1.5 acres of land appertaining to Plot nos.2567, 2568, 2569, 2579, 2580 and part of Plot no.2581 situated in village- Chakala Waini in the district of Samastipur. The notifications are on record at Annexures 1 and 2 respectively. The said notification and declaration were subsequently published in the district gazette and which have been placed on record by way of supplementary affidavit as Annexures 5 and 6 respectively. By the notification in question, the State while invoking the urgency clause as provided under section 17(4) of the Act has proposed to acquire land for a public purpose of setting up of a police station and residential quarters. As the urgency clause was invoked hence the right of the petitioners to raise objections stood forfeited and declaration was published the very next day on 14.9.2012. The said notification dated 13.9.2012 and declaration dated 14.9.2012 were published in the district gazette on 20.9.2012 and 21.9.2012 respectively. Mr. Raghib Ahsan, learned senior counsel appearing for the petitioners has questioned the acquisition primarily on the following grounds: (a) The invocation of the urgency clause for setting up a police station and construction of residential Patna High Court CWJC No.21534 of 2012 (5) dt.27-11-2013 4 quarters, is an abuse of the statutory powers inasmuch as a police station is already running in a rented house; (b) The notices have been issued in the name of predecessor in interest of the petitioners and all of whom are no more alive; and (c) The respondents have not discharged the obligation regarding payment of compensation inasmuch as the same has not yet been paid to the petitioners rather to the knowledge of the petitioners the same has been prepared in the name of dead persons. Mr Ahsan in support of his submission has relied upon a judgment of the Supreme Court reported in (2011)5 SCC 553 (Radhey Shyam vs. State of U.P.) more particularly paragraph 77 thereof. With reference to the said paragraph it is submitted that in a case of such kind where a police station was already existing in the area, may be in a rented accommodation, it certainly did not vest any right in the State to invoke the urgency clause thus depriving the petitioners of their statutory right to object as found in section 5A of the Act. It is submitted that even if the right to property is not a fundamental right yet it is protected under the Constitution and cannot be taken away Patna High Court CWJC No.21534 of 2012 (5) dt.27-11-2013 5 without due process of law. He further with reference to the Bihar Amendment to section 4 of the Act submits that a duty is cast upon the Collector to get copies of the notification served on all persons known or believed to be interested in the matter. It is submitted that the very fact that the notification has been issued in the names of dead persons, copy whereof is placed at Anneure- 1 series, reflects that the matter has been proceeded in a mechanical manner without having regard to the statutory stipulations. With reference to paragraphs 13 and 14 of the writ petition it is submitted that had the petitioners been given an opportunity to represent the matter under section 5A of the Act, they would have brought to the notice of the respondent- authorities the alternative option available in which police station could well be established but the hurriedness with which the proceedings have been conducted, it has deprived the petitioners from such right. Mr. Mrityunjay Kumar, learned counsel appearing for the State has relied upon the counter affidavit filed in the present proceedings to submit that the submissions advanced by learned senior counsel for the petitioners does not require indulgence. It was submitted that since the police station was running in a Patna High Court CWJC No.21534 of 2012 (5) dt.27-11-2013 6 rented accommodation hence there was an urgent need for establishing a building for housing the police station as well as the residential quarters and it is in this background that the urgency clause was invoked. He further submits that since the possession has not yet been taken over, there was no occasion for payment of any compensation amount. He submits that since petitioner no.36, Md. Firoz, who is son of late Md. Fazlur Rahman has received notice hence it would be deemed to be sufficient notice to all the land-holders. With reference to the statutory provisions it was sought to be submitted that the provisions underlying section 4 as amended by the Bihar Act does not require any individual notice rather the notification is for the purpose of intimation to the persons interested regarding the proposed acquisition. Learned counsel for the State has relied upon a judgment of the Supreme Court reported in 2002(2) PLJR 276 (S.C.) (First Land Acquisition Collector vs. Nirodhi Prakash Gangoli) to submit that unless mala-fides could be attributed to acquisition by invoking the urgency clause, it need not be interfered with. I have heard learned counsel for the parties and have perused the materials on record. It cannot be contested that a Patna High Court CWJC No.21534 of 2012 (5) dt.27-11-2013 7 notification issued by invoking the urgency clause as found in section 17 of the Act, takes away a valuable right vested in a land-holder. The legislative intent of the provision having such extreme reflections, it has to be exercised sparing, with utmost care and in an appropriate case and cannot be invoked as a matter of routine. The Supreme Court in the case of Radhey Shyam (supra) has cautioned the authorities by observing that even if the public purpose is laudable, it would yet require the necessary pre- requisites to invoke the urgency clause since it seeks to deprive the land owners of their valuable right. The judgment relied upon by the State Counsel rendered in the case of Nirodhi Prakash Gangoli (supra) finds discussed in paragraph 75 of the judgment in Radhey Shyam (supra) and has been explained. The present case suffers from a number of infirmities. Firstly the service of notice is found wanting since the notification itself is issued against dead persons. Apart therefrom, the proposed acquisition is for the public purpose of construction of a police station and residential quarters. This Court fails to appreciate as to how such public purpose would constitute sufficient reason for invoking an urgency clause and depriving the land-holders from filing their respective objections especially when it is an admitted position that a Police Station is running in Patna High Court CWJC No.21534 of 2012 (5) dt.27-11-2013 8 a rented accommodation. Section 5A of the Act merely enables the land-holder to file his objections within 30 days of the receipt of the notice and affording such liberty to the land-holder certainly would not have caused any extraordinary delay for the State in carrying out their exercise. On the contrary whatever lacuna that is found wanting in the present acquisition, would have been creased out. An overzealous attempt by the State to have it their way, has led to an unnecessary delay wholly attributable to them. A constitutional right of a citizen cannot be permitted to be curtailed in such manner more so when the law stands so well settled as to such exercise. For the reasons aforementioned, the notification and the declaration dated 13.9.2012 and 14.9.2012 respectively as published in the district gazette dated 20.9.2012 and 21.9.2012 as contained in Annexures 5 and 6 respectively cannot be upheld and are accordingly set aside. This would not preclude the respondent-authorities to proceed afresh in accordance with law.
Decision
The writ petition is allowed with the observations and directions aforementioned. SKPathak/- (Jyoti Saran, J)