Mohammad Sayeed v. State of Uttar Pradesh — 1991 DIGILAW 1367 (ALL)

JUDGMENT S.C. Verma, J. - By this petition under Article 226 of the Constitution the petitioners have challenged the acquisition of the disputed plots. The petitioner's claim to be the owners of 10 biswa of Plot No. 953/1 situate at Mouja Bhadohi, Gopiganj, district Varanasi. The petitioners purchased the disputed plots in the year 1974 and their names were mutated in the revenue records of Khatauni for the year 1983 F by orders dated 7-4-1976 and 15-4-1976 passed by the Tahsildar. 2. According to the petitioners they had no knowledge of the acquisition proceedings and it was only when they received notice under S. 12(2) of the Land Acquisition Act (hereinafter referred to as the Act) along with copy of the award dated 21st July 1979, that they acquired knowledge of these proceedings. The petitioners further stated that they were not served with notice under S. 9(3) of the Act and, as such, they could not participate in the proceedings under S. 11 of the Act. The disputed plots were the subject matter of acquisition under the notification dated 8th January, 1968 published in the official gazette dated 20th January 1968 issued under S. 4(1) of the Act for the public purpose of construction of a bus stand for U.P. Government Roadways. The notification under section 6(1) of the Act was issued on 12th June, 1969 which was published in the official gazette dated 21 June, 1969. Since the provisions of S. 17(1) of the Act were not made applicable the possession was not taken before the delivery of the award dated 21st July, 1979. 3. The aforesaid notifications have been challenged mainly on the ground that U.P. Government Roadways Department was wound up and the U.P. State Road Transport Corporation (hereinafter referred to as Corporation) was constituted with effect from 1st June, 1972 under S. 3 of the Road Transport Corporations Act, 1950, vide notification dated 31st May, 1972. As the funds for payment of Compensation to the land owners has emanated from the funds of the Corporation and the aforesaid Corporation being a company, as defined under S. 3(e) of the Act, the notification under S. 6(1) of the Act without complying the provisions of Part VII of the Act, is not in accordance with law. 4. As the funds for payment of Compensation to the land owners has emanated from the funds of the Corporation and the aforesaid Corporation being a company, as defined under S. 3(e) of the Act, the notification under S. 6(1) of the Act without complying the provisions of Part VII of the Act, is not in accordance with law. 4. The stand taken on behalf of the respondents in the counter-affidavit is that the proceedings for acquisition were initiated for the U.P. Government Roadways Department and after the issuance of the notification under S. 6(1) of the Act, when in the year 1972 the Corporation came into existence, it succeeded in toto to the assets and liabilities of the erstwhile U.P. Government Roadways vide Notification No. 3242/XXX-2159-N-72 dated 30th June, 1972 and, as such, it would be deemed that the fund released by the Corporation were on behalf of the State Government. It has further been contended that since the initial acquisition proceedings were not conducted for acquisition of the disputed plots for the purposes of the Corporation and notification upto the stage of section 6(1), having been issued, there was no requirement of compliance of Part VII of the Act. 5. For the consideration of legal submissions made by the learned counsel for the petitioners it is to be noted that the acquisition proceeding upto the stage of a S. 6(1) of the Act, as it stood then, have already been completed in the year 1969. These acquisition proceedings were initiated for and on behalf of the erstwhile U.P. Government Roadways Department, for the public purpose of construction of Government Roadways Bus stand by the State Government. In this view of the matter there was no requirement at that stage for compliance of the provisions of Part VII of the Act. 6. It may further be noted that under the Provisions of Part VII of the Act, the acquisition proceeding when initiated for a company, after issuance of the notification under section 4(1) of the Act and prior to the issuance of notification under section 6(1) of the Act the compliance of the provisions of Part VII are necessary. 7. The provisions of section 38 provide that the appropriate Government shall authorise the officer of the company to exercise powers conferred under S. 4 of the Act. 7. The provisions of section 38 provide that the appropriate Government shall authorise the officer of the company to exercise powers conferred under S. 4 of the Act. The proviso to section 39 of the Act required previous consent of the appropriate Government in execution of the agreement before the provisions of Sections 6 to 37 are enforced for acquisition of the land for the company. The provisions of S. 40 of the Act required that the consent for acquisition for company by the State Government shall only be given after the State Government is satisfied either on the report of the Collector or by an inquiry held, according to the provisions of S. 40 of the Act. The provisions of section 41 of the Act required an agreement to be executed between the company and the State Government with regard to certain matters and laying down the terms and conditions. The agreement is thereafter required to be published in the official gazette under S. 42 of the Act. 8. Thus the Scheme of the Act for acquisition as contained in Part VII of the Act, indicates that from very initial stage of acquisition proceedings, in case proceedings have been initiated for acquisition for the company, the compliance of Sections 39 to 42 of the Act are to be made thereafter the notification under section 6(1) is to be issued. In the present case, admittedly the acquisition of the land was for a Government Department. It was only after the issuance of notification under S. 6(1) of the Act that the Corporation was constituted under S. 3 of Road Transport Corporation Act, 1950, vide Notification No.2869/XXX-2-432-68 dated 31st May 1972. The acquisition thus cannot be treated for a company and the notifications cannot be held to be illegal, void and without jurisdiction, for non-compliance of the provisions o Part VII of the Act. 9. This position is further established from the provisions of S. 6(1) of the Act which lay down that subject to the provisions of Part VII of this Act when the appropriate Government is satisfied after considering the, report, if any made under S. 5A that, any particular land is needed for public purposes or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government. The second proviso to section 6(1) lays down that no such declaration shall be made unless compensation to be awarded for such property is to be paid by a company, wholly or partly out of public revenues or some fund controlled or managed by a local authority. In this view of the matter, for declaration under S. 6(1) of the Act, the compliance of provisions of Part VII are prerequisite. 10. It is clear from the opening word of S. 6, "subject to the provisions of Part VII of this Act" that where land is acquired for a company the procedure contained in Sections 4, 6 and 9 for acquisition for public purposes is required to be complied with along with special provision outlined in Part VII of the Act. On the completion of the agreement and deposit of costs, the declaration under S. 6 has to be made and then the rest of the procedure laid down in the Act follows. When the acquisition is completed and possession is taken by the Collector, as deed of conveyance to the company containing the terms has to be executed. Thus for the aforesaid reasons it can not be held that the present acquisition was for a company as the funds for payments of compensation was provided by the Corporation. 11. The provisions of Part VII read with S. 6(1) of the Act lead to the conclusion that the declaration for acquisition for a company shall not be made unless the whole of compensation to be awarded for the property is to be paid by a company. As regards the declaration for acquisition for public purpose similarly, cannot be made unless the compensation, wholly or partly, is to be paid out of public fund. In Pt. Jhandu Lal v. State of Punjab, AIR 1961 SC 343 the Hon'ble Supreme Court held (at P. 347 of AIR) : "Section 6 is, in terms made subject to the provisions of Part VII of the Act. The provisions of Part VII read with S. 6 of the Act, lead to this result that the declaration for the acquisition for a Company shall not be made unless the compensation to be awarded for the property is to be paid by a Company. The provisions of Part VII read with S. 6 of the Act, lead to this result that the declaration for the acquisition for a Company shall not be made unless the compensation to be awarded for the property is to be paid by a Company. The declaration for the acquisition for a public purpose, similarly can not be made unless the compensation, wholly or partly, is to be paid out of public funds. Therefore, in the case of an acquisition for a Company simplicitor, the declaration can not be made without satisfying the requirements of Part VII. But, that does not necessarily mean that an acquisition for a Company for a public purpose can not be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition for a public purpose is that the cost of the acquisition should be borne, wholly or in part, out of public funds. Hence, an acquisition for a Company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is made by public funds. If, on the other hand, the acquisition for a company is to be made at the cost entirely of the Company itself, such an acquisition comes under the provisions of Part VII." 12. In the present case after publication of the notification under S. 6(1) of the Act the Corporation was constituted. The Corporation succeeded in toto to the assets and liabilities of the erstwhile U.P. Government Roadways Department. It is under these circumstances, that the Corporation has provided funds for payment of compensation and merely because some of the funds were provided by the Corporation, the acquisition was liable to be treated for a company, can not be accepted. This is further evident from the provisions of section 41 of the Act, which provides for the terms and conditions of the agreement between the company and the State Government and requires payment of the entire cost of acquisition to the Government. In the present case there is nothing on record to indicate that the entire cost of acquisition was paid by the Corporation. In the present case there is nothing on record to indicate that the entire cost of acquisition was paid by the Corporation. It may also be noticed that in order to lay down foundation for this argument, raised by the learned counsel for the petitioners some averments were made in the supplementary affidavit which is quoted below : "4 That after the receipt of the application aforesaid on behalf of the U.P.S.R.T.C. on inquiry made by the deponent at the office of the Land Acquisition Officer, Varanasi, it has come to light that the whole amount of the compensation awarded by the Land Acquisition Officer was deposited by the U.P.S.R.T.C. for payment to the land arrears." 13. Even these averments contained in the supplementary affidavit cannot be accepted, as the affidavit is not properly sworn. The allegations contained in para 4 of the supplementary affidavit have neither been sworn, on personal knowledge nor are based on perusal of record. 14. Learned counsel for the petitioner placed reliance on Valjibhai Moolji Bhai Soneji v. State of Bombay (now Gujarat), AIR 1963 SC 1890 for proposition that the U.P. State Road Transport Corporation incorporated under the Road Transport Corporation Act, 1950, is a company within the meaning of S. 3(e) of the Land Acquisition Act. Learned counsel for the petitioners also placed reliance on Manu Bhai Jethallal Patel v. State of Gujarat, AIR 1984 SC 120 that even where land is acquired for a company, the State Government has power to acquire the land for the public purpose from the revenue of the State. The State is acquiring land to carry out public purpose with instrumentalities of the U.P. State Road Transport Corporation. 15. Learned counsel for the petitioners by placing reliance on these two decisions would not be able to substantiate the legal contentions raised by him even if U.P. State Road Transport Corporation is treated to be a company within meaning of S. 3(e) of the Act. There is nothing on record to establish that the Corporation has paid the entire cost of acquisition or even the compensation to the land owners. There is also no material on record to establish that the State Government has not contributed for acquisition for public purpose. 16. The petitioners also cannot claim service of notice under S. 9(3) of the Act as the notices were issued to the recorded tenure holders, their predecessor-in-interest. There is also no material on record to establish that the State Government has not contributed for acquisition for public purpose. 16. The petitioners also cannot claim service of notice under S. 9(3) of the Act as the notices were issued to the recorded tenure holders, their predecessor-in-interest. The petitioners being subsequent purchasers in 1974 were not entitled to any notice under S. 9(3) of the Act. 17. The petition is liable to be dismissed yet on another ground. The petitioners purchased the disputed plots in the year 1974, much after the publication of the notifications under Sections 4(l) and 6(1) of the Act in 1969. The petitioners were expected to know the clog on their title after the publication of the aforesaid notifications. Moreover. The challenge to the notifications by the petitioners who are subsequent transferees at such belated state without there being any explanation what-soever for the inordinate delay would not be in accordance with law. In these set of circumstances, we are not inclined to exercise our jurisdiction under Article 226 of the Constitution of India. 18. For the reasons stated above, we are of the opinion that there was no requirement for compliance of the provisions of Part VII of the Act. The notifications issued under Sections 4(1) dated 8-1-68 and 6 (1) dated 12-6-69 of the Act do not suffer from any illegality or infirmity. The petition is devoid l of merits and is accordingly dismissed. There shall be no order as to costs.