SHANKER LAL KHETAN v. STATE OF U P — 1995 DIGILAW 995 (ALL)

D. S. SINHA, J. Heard Sri Tarun Verma, learned counsel appearing for the petitioner, Sri R. C. Yadav, learned Standing Counsel representing the respondents No. 1, 2 and 3, and Sri Ramesh Singh, learned counsel representing the respondent No. 4, at length and in detail. 2. For the purpose of construction of the building of Nehru Smark Balika Vidyalaya, Mundera Bazar, P. O. Chauri Chaura, Tehsil Sadar, district Gorakhpur Plot No. 214, situate in the same area whether the said school is located, is proposed to be acquired by means of notification dated 13th August, 1982 issued by the Collector, Gorakhpur, the respondent No. 2 under Section 4 (1) of the Land Acquisition Act, 1894, hereinafter called the act. The notification was published in the official Gazette of the State of Uttar Pradesh dated 27th November, 1982 and the interested persons were invited to file objection under Section 5-A of the Act. The petitioner asserts that the respondent No. 2 has passed an order dated 29th September 1983 purporting to cancel the notification dated 13th August, 1983 and directing the Land Acquisition Officer, the respondent No. 3, to issue notification for cancellation of the notification but the respondent No. 3 is not paying any heed to the order of the respondent No. 2. He, therefore prays that this Court may intervene and issue a suitable writ, order or direction directing the respondent No. 3 to carry out the order of the respondent No. 2 dated 29th September, 1983. 3. Stand taken on behalf of the respondents is that, in fact, the respon dent No. 2 has not either taken any decision or passed any order cancelling the notification dated 13th August, 1982. Further stand of the respondents is that the respondent No. 2 has no power to cancel the notification dated 13th August, 1982 inasmuch as power to cancel a notification under Section 4 of the Act which has the effect of withdrawal from acquisition of any land of which possession has not been taken, vests in the Government as provided in Section 48 of the Act. 4. The order of the respondent No. 2 dated 29th September, 1983 compliance whereof by the respondent No. 3 is sought to be secured through the assistance of this court reads thus: "l. A. C. Please issue notification for cancellation of notification under Section 4 if otherwise with rules. Sd/- Collector, Gorakhpur, dt. 4. The order of the respondent No. 2 dated 29th September, 1983 compliance whereof by the respondent No. 3 is sought to be secured through the assistance of this court reads thus: "l. A. C. Please issue notification for cancellation of notification under Section 4 if otherwise with rules. Sd/- Collector, Gorakhpur, dt. 29-9-1984. It will be appropriate to notice that the petitioner has not filed the copy of the order dated 29th September, 1983, either certified or otherwise. The order quoted above is being extracted from the application of the petitioner dated 16th January, 1984 moved before the respondent No. 3, copy whereof is Annexure b to the petition. 5. The court has read and re-read the alleged order dated 29th September, 1983, quoted above, but is unable to find any decision or order purporting to have been passed by the respondent No. 2 cancelling the notification dated 13th August, 1983 and directing the respondent No. 3 to issue notification for cancellation of the notification. The order directs the Land Acquisition Clerk, who is not a party to this petition, to issue notification for cancellation of notification under Section 4, "if otherwise with rules" and is not a direction to the respondent No. 3. The respondent No. 3, therefore, cannot be said to be under any obligation to comply the said order dated 29th September, 1983. The prayer of the petitioner is palpably misconceived. 6. In paragraph 13 of the counter-affidavit, sworn by Sri Vinod Mani Tripathi and filed on behalf of the respondents No, 1, 2 and 3, it is stated that as per the direction issued by the Board of Revenue, it is clear that except in case of default of the acquiring body not depositing the compensation amount in advance in no other case the Collector has right to issue cancella tion of the notification under Section 4 (1) of the Act. It is further stated that the Collector, Gorakhpur has not recommended for cancellation so far. In substance, the plea is that neither the Collector is authorised to direct cancellation of the notification under Section 4 (1) of the Act nor has he in the instant case made any recommendation for cancellation. The plea taken in Paragraph 13 of the counter-affidavit has not been rebutted by the petitioner. In substance, the plea is that neither the Collector is authorised to direct cancellation of the notification under Section 4 (1) of the Act nor has he in the instant case made any recommendation for cancellation. The plea taken in Paragraph 13 of the counter-affidavit has not been rebutted by the petitioner. The conclusion that the Collector did not take any decision or pass order purporting to direct cancellation of the notification dated 13th August, 1982 is inescapable. 7. The question as to whether the Collector has the power to cancel or withdraw notification under Section 4 of the Act, as amended by the Laod Acquisition (U. P. Amendment Act XXII of 1954) has been considered by a teamed single Judge of this Court in his decision rendered in the case of Arya Samaj Khalapar Society, Saharanpur v. Collector of Saharanpur, reported in 1967 ALJ at page 796. 8. Repelling the contention chat the Collector has the power to with draw or cancel the notification under Section 4 of the Act, the learned Judge observed thus:- "obviously, the powers under Section 48 are not exercisable by the Collector and the impugned order cannot be justified under Section 18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . These provisions make it amply clear that, after making the notification under Section 4, the Collector has no power to take any decision and the decision whether the acquisition proceedings are to continue or are to be dropped has to be taken by the appropriate Government. These provisions necessarily lead to the conclusion that the Collector cannot, upon a consideration of the objections filed under Section 5-A (1), come to the con clusion that the objections are well founded and that the acquisition proceedings should be dropped. The jurisdiction and power to do so is vested by these provisions exclusively in the appropriate Government. I am, therefore, of the view that, even though Section 4, as amended, confers power upon the Collector to issue a notification under Section 4, the context and other provisions of the Land Acquisition Act clearly negative any implied power in the Collector under Section 21 of the General Clauses Act to cancel or withdraw that notification. . . . . . 9. . . . . . 9. Learned counsel for the petitioner has not been able to distinguish the decision rendered in the case of Arya Samaj Khalapar Society Saharanpur v. Collector of Saharanpur (supra ). The dictum laid down in the said case does not admit of any exception. It is approved, reiterated and re-affirmed. 10. For the foregoing reasons, the court is clearly of the opinion that the petitioner cannot be granted the relief prayed for. Consequently, the petition fails and is hereby dismissed. The interim order dated 21st May, 1984 shall stand discharged. No order as to costs. Petition dismissed. .