Taimu Singh v. State Of U. P. — 1991 DIGILAW 430 (ALL)

JUDGMENT D. P. S. Chauhan, J. 1. The problem of scarcity of newsprint paper in the country and catering of the need by importing it from foreign countries at a huge cost of foreign exchange led the Government of India to establish a newsprint paper project in the district of Moradabad through the National Newsprint and Paper Mills Limited (for brevity, hereinafter referred to as 'Nepa') where for proceedings for acquisition of land situate in village Budhanpur Atmali, Tehsil Moradabad Sadar and Villages Bathuva Khera Atmali, Phaciapura Gannu Mustakham, Manpur Dattaram, Gajhera Sai, Tehsil Thakurdwara, District Moradabad, started. The State Government through Notification No. 2834/XVIII-4-10 (PP) Dated September 8, 1989 (published in U.P. Gagette Extraordinary dated September 8, 1989) as also corrigendum Notification No. 3548/XVIII-4-10 (PP) dated November, 7, 1989 (published in U. P. Gazette Extraordinary dated November 8, 1989) and Notification No. 2919/XVIII-4-10 (PP)-89 dated September 26, 1989 (published in U. P. Gazette Extraordinary dated September 27, 1989) issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, hereinafter referred to as 'the Act') notified for general information that the land mentioned in Schedule thereto was urgenty needed for a public purpose, namely for establishment of a newsprint paper project for a planned industrial development of the district of Moradabad through Nepa. It was also stated in the said notification that the Governor being of the opinion that the provisions of sub-section (2) of Section 17 of the Act were applicable to the land, has directed under sub-section (4) of Section 17 of the Act that the provisions of Section 5-A of the Act would not apply. These notifications were followed by a declaration made under Section 6 of the Act through Notification No. 4101/XVIII-4-10 (PP)-89 and No. 4262/XVIII-4-10 (PP)-89 both dated January 6, 1990 (Published in U. P. Gazette Extraordinary, dated January 8, 1990) contained a direction under Section 7 of the Act to the Collector, Moradabad for taking steps for acquisition of the land also for possession under sub-section (1) of Section 17 of the Act without there being any award under Section 11 of the Act. 2. By means of Writ Nos. 3134, 3330, 3332, 3334, 3335, 3336, 3337. 2. By means of Writ Nos. 3134, 3330, 3332, 3334, 3335, 3336, 3337. 3338, 5445, 5560 and 9042 of 1990, the petitioners invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the proceedings relating to acquisition of their land The aforesaid notifications issued under Section 4 of the Act and declarations made under Section 6 of the Act are the subject matter of challenge in this writ petitions. Under Rule 2 of Chapter XXII of the Rules of Court, 1952, with the consent of the counsel for the parties, all these petitions are being decided together as the purpose for which the acquisition has been made, is one and the same and the subject matter of challenge and the points for determination are common. Writ Petition No. 3330 of 1990 is being taken up as a leading case and the decision in this case will govern all the writ petitions. 3. Heard learned counsel for the parties and the learned Standing Counsel. 4. By means of a supplementary counter affidavit filed in Writ No. 3330 of 1990, during the course of arguments, learned Standing Counsel raissd an objection of preliminary nature regarding the maintainability of the writ petition. Relying upon the decision of the Supreme Court in Aflatoon v. Lt. Governor, Delhi, 1974 SC 2077 and Smt. Ratni Devi v. Chief Commissioner, Delhi, 1975 SC 1699, an argument was built up that the petitioners being guilty of laches cannot maintain the petition as they instead of challenging the notifications issued under Section 4 of the Act and declarations made under Section 6 of the Act at the earliest opportunity, allowed the proceedings under Section 5 of the Act to proceed. In Aflatoon's and Smt. Ratni Devi's cases (supra) the facts before the Supreme Court were quite different than those herein the present case. In Aflatoon's case, a notification under Section 4 of the Act notifying the requirement of the land for planned development of Delhi was made on November 13, 1959, and a declaration under Section 6 of the Act, after disposal of the objections under Section 5-A of the Act, was made through notification dated March 18, 1966 and notice under sub-section (1) of Section 9 of the Act requiring the petitioners to state their objections, if any, to the assessment of compensation were issued in the year 1V72. The validity of the acquisition proceedings was being challenged before the Delhi High Court by way of a petition under Article 226 of the Constitution of India on the ground that the acquisition was not for public purpose but was for a company and the provisions of Part VII of the Act ought to have been complied with ; that since no part of the compensation came from the public exchequer, the acquisition was not for a public purpose and that the proceedings for acquisition violated the fundamental right of the petitioner under Article 19 (1) (f) of the Constitution of India and there was unreasonable delay between the publication of notification under Section 4 of the Act and issuance of notice under Section 9 of the Act with the result that they were deprived of the benefit of appreciation in value of the property after the date of notification under Section 4 of the Act. The High Court dismissed the petition where against an appeal was preferred before the Supreme Court. In appeal, for the first time, it was agitated that the public purpose specified in the notification under Section 4 of the Act, namely "planned development of Delhi" was vague and as a result whereof they could not effectively exercise their right under Section 5-A of the Act. In the background of these facts, the Supreme Court, disallowing new plea being raised, observed that- "Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea in view of their conduct in not challenging the validity of the notification even after the publication of the declaration under Section 6 in 1966. Of the two writ petition, one is filed by one of the appellants. There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. A valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners". 5. In Smt. Ratni Devi's case, a notification issued under Section 4 of the Act was of November 13, 1959, and the same was also the subject matter of challenge in Aflatoon's case (supra). The challenge was on the ground that the compensation which was related to the date of notification under Section 4 of the Act, bad and the public purpose as specified therein, namely "planned development of Delhi", was objected being vague and the Supreme Court, placing reliance of its earlier decision in Aflatoon's case, observed that- "In Aflatoon's case, ( AIR 1974 SC 2077 ) (supra) public purpose with regard to the planned development of Delhi has been upheld. In Aflatoon's case (supra) the petitions which were filed in the year 1972 were held to be dilatory. The reason is that a valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. In the present case, Section 4 notification in the year 1959 was followed by notification under Section 6 of the Act in July, 1960 and again in October, 1961. In Aflatoon's case (supra) it was said that "to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics". 6. 6. The remedy under Article 226 of the Constitution, of course, is one of discretion and the petition may be refused upon consideration of circumstances relating to the conduct of the petitioner, which may disentitle him from getting the discretionary remedy and in this regard laches may be one of the circumstance. The word 'laches' is an old French word for slackness or negligence or for not doing. In the present case, it is to be seen whether in the facts and circumstances, the petitioners can be held guilty of laches. In this regard, the relevant facts of the present case are that the notification under Section 4 of the Act, which are subject matter of challenge, were issued in the year 1989 (first was issued on 8-9-1989, second on 27-9-1989 and corrigendum on 8-11-1989). The public notice was given on 14-12-1989. A declaration under Section 6 of the Act was made on 8-1-1990 and the public notice whereof was given on 21-1-1990. The writ petition challenging the aforesaid notification and the proceedings consequent thereupon was filed on 13-2-1990 after obtaining report from the Stamp Reporter regarding sufficiency of Court fee and delay, if any, in filing the petition. The petition was reported on 12-2-1990 to be within time uptil 8-4-1990. The normal expected period for invoking jurisdiction under Article 226 of the Constitution is 90 days. On the facts of the present case, as stated above, the Supreme Court cases, referred to above, have no application. The petition was filed with promptitude and there exists no such circumstance so to constitute any slackness or negligence or attribute anything for not doing on the part of the petitioner. The objection, thus, being devoid of any substance, is overruled. The petition was filed with promptitude and there exists no such circumstance so to constitute any slackness or negligence or attribute anything for not doing on the part of the petitioner. The objection, thus, being devoid of any substance, is overruled. The learned counsel for the petitioner made the following three fold submissions, which mainly related to the questions of law and facts only have peripheral relevance in consideration of the same :-- (i) that the entire proceedings relating to the acquisition of land in question on the basis of the notifications issued under Section 4 of the Act and declaration made under Section 6 of the Act are bad as the purpose of acquisition of land being the Union purpose, the Union Government and not the State Government was competent in the matter ; (ii) that the publication of declaration made under sub-section (1) of Section 6 of the Act is bad not being in accord with the requirement of subsection (2) thereof ; and (iii) that the public purpose was not of such urgency warranting dispensation of enquiry under Section 5-A of the Act by invoking the powers under subsection (4) of Section 17 of the Act. 7. The submissions as advanced by the learned counsel for the petitioner are now being considered in seriatum. 8. The first submission relates to the validity of the notification issued under Section 4 of the Act, the declaration made under Section 6 of the Act and the proceedings consequent thereto and argument advanced was that the purpose of acquisition of the land in question being the purpose of Union, as the Nepa is a Government of India Undertaking, the appropriate Government in view of clause (ee) of Section 3 of the Act, is the Central Government and the Notifications in question which are issued by the State Government, are not the notifications issued by the appropriate Government. Learned Standing Counsel taking shelter of Notification No. 20/1/55 (Judicial) (i) dated 14-5-1955 issued by the Ministry of Home Affairs, Government of India, which is on record of the present case, and finds mention in the notification under Section 4 of the Act whereby the President of India, in exercise of his powers under Article 258 (1) of the Constitution, entrusted the functions of the Central Government under the Act, in relation to acquisition of land for the purposes of Union, to the Government of Uttar Pradesh, submitted that the State Government rightly exercised the power, but this submission was countered by learned counsel for the petitioner describing the notification of entrustment dated 14-5-1955 as invalid being unconstitutional. 9. The question for consideration of constitutionality of the notification of entrustment of the function dated 14-5-1955 would arise only if otherwise the notifications under Section 4 of the Act and declarations made under Section 6 of the Act are found invalid. 10. It may be noticed that before the Constitution, Sections 4 and 6 of the Act gave exclusive powers of acquiring the land to the State Government The Constitution, Adaptation of Laws Order, 1950, issued by the President of India, under Article 372 of the Constitution, inserted a new clause (ee) to Section 3 of the Act which defines the expression 'appropriate Government' and substituted the words 'appropriate Government' of the words 'provincial Government' in the Act. Clauses (ee) of Section 3 of the Act reads as under : - "(ee) the expression "appropriate Government" means, in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the State Government". As a result of these alterations, the power to acquire land for the purposes of Union became exclusively vested in the Central Government while the State Government could acquire the land for any other purposes. IT was because of this exclusive power of acquisition by the Central Government for the purposes of the Union, the instrustment of functions notification dated 14-5-1955 was issued. Though the expression 'purposes of the Union' has not been defined any where in the Act but it means the purposes for which the Union has power to legislate under Schedule VII to the Constitution In Arjun Singh v. State, (1961 Alld. Though the expression 'purposes of the Union' has not been defined any where in the Act but it means the purposes for which the Union has power to legislate under Schedule VII to the Constitution In Arjun Singh v. State, (1961 Alld. 520) the matter came up for consideration before this Court and this Court took the view that the entries in List I, List II and List III of the Schedule VII to the Constitution, as existed before the Constitution (Seventh) Amendment recognised trictomy of public purposes, that is to say the purposes of the Union, the purposes of the State and any other public purpose but it is not possible to make a clear cut distinction between the three sectors and there is bound to arise some overlapping from time to time. Accordingly, in some cases, it would be open to either Government to acquire property. Broadly speaking, the purposes of the Union or State should be co-relative to the power of the Parliament or the State Legislature so that either Legislature may legislate effectively. The position with respect to matter comprised in List III, Schedule VII, to the Constitution is some what different. With respect to these matters, the Parliament and the State Legislature have concurrent powers to legislate. Accordingly the acquisition of property with respect to these matters would be for the purposes of the Union as well as for the purposes of the State. The Central Government and the State Government would have concurrent power of acquiring property with respect to these matters. In State of Bombay v. Ali Gulshan, (1955 SC 810) the Supreme Court took the following view considering the legislative entries of Lists I, If and III of the Seventh Schedule, as existed prior to Constitution (Seventh) Amendment :- "Reading the three items together, it is fairly obvious that the categories of "purposes" contemplated are three in number, namely Union purposes, State Purpose, and any other public purpose. Though every State purpose or Union purpose must be a public purpose, it is easy to think of cases where the purpose of the acquisition or requisition is neither the one nor the other but a public purpose." "There is another way of looking at the question involved. Though every State purpose or Union purpose must be a public purpose, it is easy to think of cases where the purpose of the acquisition or requisition is neither the one nor the other but a public purpose." "There is another way of looking at the question involved. An undertaking may have three different facets of aspects, and may serve the purpose of a State, the purrose of the Union and a general public purpose." In the present case, the acquisition of land in question is for the purposes of Nepa, a Government of India Undertaking and a company within the meaning of section 617 of the Companies Act, 1956, and on this the parties are not at variance. The expression "corporation owned or controlled by the State" is defined under clause (cc) of section 3 of the Act, which reads as under :- "(cc) the expression "corporation owned or controlled by the State" means any body corporate established by or under a Central, Provincial or State Act, and includes a Government company as defined in section 617 of the Companies Act, 1956, a society registered under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State, being a Society established or administered by Government and a cooperative society within the meaning of any law relating to co-operative societies for the time being in force in any State, being a co-operative society in which not less than fifty one per centum of the paid-up share capital is held by the Central Government, or partly by the Central Government and partly by one or more State Government." The Nepa is, thus, a corporation owned and controlled by the State and any acquisition of land for the purposes of such a corporation is an acquisition for public purpose in view of the provisions contained in sub-clause (iv) of clause (f) .of section 3 of the Act, which reads as under :- "(f) the expression "public purpose" includes- (iv) the provision of land for a corporation owned or controlled by the State ; 11. By Constitution (Seventh) Amendment Act, 1956, the entry at item no. 33 in List I (Union List) which referred to ''acquisition or requisitioning of property for the purposes of the Union," the entry at item no. By Constitution (Seventh) Amendment Act, 1956, the entry at item no. 33 in List I (Union List) which referred to ''acquisition or requisitioning of property for the purposes of the Union," the entry at item no. 36 of List II (State List), which related to "acquisition and requisitioning of property except for the purposes of the Union subject to provision of Entry 42 of List III of the Seventh Schedule, were deleted altogether and entry at item no. 42 of List II (Concurrent List) which was to the effect that "principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given" was substituted by "acquisition and requisitioning of property." The amendment was made to do away the distinction between the Union purposes, the State purpose or any other public purpose. With respect to these matters, the Parliament and the State Legislature acquired concurrent power to legislate and as such both the State and the Central Government would have concurrent power for acquisition of the property The power has been, thus, given to the State Government to acquire land for any other purpose which may be recognised as a public purpose so long as the property is within the territorial jurisdiction and State Government in such cases shall also be the appropriate Government within the meaning of clause (ee) of section 3 of the Act. 12. A view similar to this was also taken by the Calcutta High Court in the case of Roma Bose v. Union of India, 1978 Calcutta 584 though the question came up for consideration in a different way and the observations as made in paragraph 8, are as extracted below : - "As regards the first submission that the acquisition of the disputed premises by the State Government for the purpose of the Union on the basis of the entrustment of the functions of the Central Government under Article 258 (1) of the Constitution of India is bad after the Constitution (7th Amendment) Act, 1956 it appears that the power of acquisition for Union purposes was mentioned in item No. 33 of List I of the 7th Sch. and the power of acquisition and requisition for the purpose of State was provided in item No. 36 of List II of the said Schedule. By the Constitution (7th Amendment) Act, 1956 item no 33 of List of the 7th Schedule and item No. 36 of List II of the said Schedule were omitted and item No. 42 dealing with the acquisition and requisition of property has been inserted in List III of the 7th Sch. So in view of the amended provision the State Government is competent to acquire land both for the State purposes as well as for the purposes of the Union and for this no entrustment by the Central Government of its power to acquisition or requisition of property is necessary. This being the position the mere mention of the delegation of the powers of the Central Government to the State Government under Article 258 (1) of the Constitution in the notification under section 4 of the Land Acquisition Act does not render the acquisition proceedings in question invalid or bad. This contention is, therefore, of no substance and as such the same is overruled." Likewise, the Assam High Court in the case of T. D. Corporation v. State of Assam, 1961 Assam 139 took a similar view. 13. In view of what has been stated above, the impeached notifications issued under section 4 of the Act and declarations made under section 6 of the Act are valid having been rightly issued by the State Government which has full competence in the matter and is being also the appropriate Government and it is now no more necessary to dilate on the constitutionality of the eutrustment notification dated 14-5-1955. 14. The next submission related to the validity of declaration made under sub-section (1) of section 6 of the Act. Sub-section (2) of section 6 which deals with the publication, is as extracted below : - "6 (2). 14. The next submission related to the validity of declaration made under sub-section (1) of section 6 of the Act. Sub-section (2) of section 6 which deals with the publication, is as extracted below : - "6 (2). Every declaration shall be published in the official Gazette and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state 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." In the present case, the declaration under sub-section (1) of Section 6 of the Act was published in daily Madhur Samachar having circulation in the locality dated 15th and 16th of January, 1990 and in Aina-Aa-Alam, an Urdu daily, dated 17-1-1990 as is stated in para 3 of the supplementary counter affidavit filed by Prem Nath Saini. The . publication of this declaration in Aina-Aa-Alam, which is an Urdu daily, was in Devnagari script. In the background of these facts, the argument, as built up, was that the publication so made was not in accord with the requirement of sub-section (2) of Section 6 of the Act and the publication so made in Urdu daily was not a publication in the eye of law and it would be deemed to be a publication made in only in one newspaper, and as such the mandatory requirement of publication remained unsatisfied. The argument is misconceived. The requirement under sub-section (2) of Section 6 of the Act regarding publication is that the publication must be minimum in two newspapers having circulation in the locality and at least one of them shall be in regional language. Here, in the present case, the publication made in Madhur Samachar on 15th and 16th of January, 1990, was in two Hindi daily having circulation in the locality. Here, in the present case, the publication made in Madhur Samachar on 15th and 16th of January, 1990, was in two Hindi daily having circulation in the locality. In sub-section (2) the words "at least" qualifies the newspaper and the same is of significance which means that the publication can be in two newspapers of the regional language. The minimum requirement is that one of the daily newspaper must be in the regional language. Apart from this, since the word 'at least' qualifies the word 'newspaper' in sub-section (2) of Section 6 of the Act, the publication in Aina-Aa-Alam, an Urdu daily, is a publication in daily newspaper in addition to the publication in the daily newspaper of regional language. The printing of the item in this Urdu daily newspaper in Devnagari script will not affect the position that the publication was in Urdu daily. Thus, there is no defect in the publication and the submission deserves to be rejected. The last submission was regarding the urgency of the public purpose that it was not of such a nature so as to warrant dispensation of enquiry under Section 5-A of the Act and to support the submission the facts alleged arc that the scheme for establishment of nepa originated in the year 1988 and was to be established in Nainital district initially which on account of political pressure was shifted to Moradabad district and the fact of issuance of notifications under Section 4 of the Act, which was done in September, 1989 and publication of declaration under Section 6 of the Act, which was made in the month of January, 1990 itself establishes that there was no urgency to require dispensation of enquiry under Section 5-A of the Act. It was also stated that the establishment of this project would have hazardous effect on the life on the inhabitants and will also have the adverse impact on agricultural production on account of pollution which would be caused after the project is commissioned and if opportunity would have been afforded under Section 5-A of the Act, (sic) it could have been established to the satisfaction of the authorities concerned that the acquisition of the land in question was not in public interest. In counter affidavit, all these allegations are denied and it is stated that the Government after thorough examination of the matter and after enquiry was satisfied that the proposed acquisition of land was so urgent that suggested for dispensation of enquiry under Section 5-A of the Act as the project was of great urgency. Apart from this, the para of the notification under Section 4 of the Act. Which incorporate apparently the order exercising the power under sub-section (4) of Section 17 of the Act, reads as follows : 'The Governor being of the opinion that the provisions of sub-section (1) of Section 17 of the Act are applicable to the said land inasmuch as the said land is urgently required for establishment of a newsprint paper project for planned development in district Moradabad through National Newsprint and paper Mills Ltd., New Delhi and that in view of the pressing urgency it is as well necessary to eliminate the delay likely to be caused by enquiry under Section 5-A of the said Act. The Governor is further pleased to direct under sub section (4) of Section 17 that the provisions of Section 5-A of the said Act will not apply." 15. In the portion of the notification extracted above, it is stated that in the opinion of the Government there was urgency to take recourse to provision of sub-section (4) of Section 17 of the Act. After amendment by the Act No. 68 of 1988, Section 17 (1) has also been amended and the words "waste and arable" have been deleted and now the requirement of forming the opinion regarding the land, i.e. waste and arable, no more survive, but the opinion to situation in which an enquiry under Section 5-A will serve no useful purpose is to be formed regarding dispensation of it. It is not just the existence of an urgency but the need to dispense with the enquiry under Section 5-A is to be considered. The acquisition in question for establishment of Nepa is a planned industrial development of the district of Moradabad and as such emergent action was taken to eliminate the summary enquiry under Section 5-A of the Act, 16. The acquisition in question for establishment of Nepa is a planned industrial development of the district of Moradabad and as such emergent action was taken to eliminate the summary enquiry under Section 5-A of the Act, 16. The question of extent of urgency is for the Government to decide and the State Government has formed the opinion that the land is urgently required for establishment of the project and planned industrial development of Moradabad and invoked the provisions of sub-section (4) of Section 17 of the Act. It cannot be said to be a case where there was no material or basis before the State Government for formation of the opinion regarding urgency and not for dispensation of enquiry under Section 5-A of the Act. This submission also fails. In the result, the writ petitions fail and are dismissed. There shall be no order as to costs. Interim order are discharged. Petitions dismissed.