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1997 DIGILAW 718 (PAT)

Anil Kumar Gupta v. State of Bihar

1997-09-29

AFTAB ALAM

body1997
Order This is the second time that the petitioner has come to this Court in his long endeavour to get his land treed from the occupation of a Department of the State Government. This writ has been filed making a prayer to quash the proceedings of Case No. PLA 1/1993-94 -115 initiated for the acquisition of the petitioner's land measuring 3.05 acres in area. The lands forming the subject matter of the impugned acquisition proceedings are identified as plots no. 256, 263, 264, 266 and 287 of khatas no. 180, 183 and 184 under Tauzi no. 15661 falling in the revenue Thana no. 47, situate at Bihta in the district of Patna. The total area of the above described land is 4.97 acres out of which an area of 3.05 acres is proposed to be taken into acquisition. 2. The acquisition proceedings are sought to be challenged on the simple ground that the notification under section 6 of the Land Acquisition Act was issued after more than a year from the date of the publication made under section 4 of the Act. 3. It is stated on behalf of the petitioner that during the period of emergency in the year, 1975 the land in dispute was occupied by the Advance Planning and Investigation Division of the State Government. Though some steps were taken with a view to acquire the land temporarily under Section 35 of the Act, no proceeding as provided in law were held. Therefore, according to the petitioner, the occupation of the State Govt. over the disputed land was all along forcible and illegal. 4. When the petitioner failed in his efforts to persuade the departmental authorities to vacate his land, he finally came to this Court in CWJC No. 10621/1992 seeking a direction to the State Govt. to remove its structures from the land and to free it from its occupation. That writ petition was allowed by judgment and order dated 27.8.1993 and a direction was issued to the Chief Engineer. Irrigation, Water Resources Department, Govt. of Bihar to remove the temporary constructions made over the disputed land. 5. The State went in appeal against that order which was disposed of by order dated 4.3.1994 (Annexure-3) passed by the Supreme Court in S.L.P (Civil) No. 585/1994. Irrigation, Water Resources Department, Govt. of Bihar to remove the temporary constructions made over the disputed land. 5. The State went in appeal against that order which was disposed of by order dated 4.3.1994 (Annexure-3) passed by the Supreme Court in S.L.P (Civil) No. 585/1994. In that order, the Supreme Court observed that the direction issued by the High Court for the removal of the materials and to deliver possession (of the land) to the respondent owner could not be said to be vitiated by any error of law. The apex Court, however, left it open for the Government to take appropriate action under section 4(1) of the Act in case there was any subsisting public purpose. Further, on being informed that a notification under section 4 of the Act was in fact issued on 1.1.1993 but due to some defects it was not possible to give any effect to it, the Court allowed four weeks' time from the date of the order to the appellant State Government to take such steps as available at law and for a period of four weeks it also stayed the appellant's removal from the disputed land. 6. It was in pursuance of the liberty given by the Supreme Court that publications were made of the preliminary notification under section 4 of the Act. It is stated in the writ petition that the last publication under section 4 of the Act was made on 4.4.1994; there should be no difficulty in accepting this as the correct date as the same date is mentioned in para 3 of the counter affidavit filed on behalf of the State. 7. It is also not in dispute that after the order under section 5A of the Act, disposing of objections against the acquisition was passed on 5.6.1995 the declaration under section 6 of the Act was finally made on 12.10.1995. The declaration under section 6 of the Act was first published in a newspaper on 29.6.1995 and was later published in the gazette on 12.10.1995. It is, thus evident that taking any of the two dates into account, the declaration under section 6 of the Act was made after more than a year from the date of the publication of the notification under section 4. 8. Mr. It is, thus evident that taking any of the two dates into account, the declaration under section 6 of the Act was made after more than a year from the date of the publication of the notification under section 4. 8. Mr. Ram Balak Mahto, learned Senior counsel for the petitioner submitted that proviso (ii) to sub-section (1) of Section 6 of the Act clearly stated that no declaration under Section 6 could be made after more than a year from the date of publication under Section 4 of the Act and therefore the purported publication of the declaration under Section 6 was void and nonest in the eye of law. Learned counsel submitted that on this score alone the land acquisition case was no longer fit to proceed any further and the proceedings of the case were liable to be quashed. Mr. Mahto, in support of his submission relied upon two Supreme Court decisions in Bhatinda Improvement Trust vs. Balwant Singh and others, 1991 Vol. 4, S.C.C. 368 and Oxford English School vs. Govt. of T.N. and others, 1995 Vol. 5 S.C.C. 206 (Paras 7 and 8). 9. In my view the submission is well founded and is fully supported by the two decisions of the Supreme Court relied upon by the counsel. 10. Mr. T.N. Maitin, learned G.P.I. appearing on behalf of the State first submitted that in so far as this State was• concerned, section 6 of the Act was amended by Land Acquisition (Bihar Amendment) Act, 1960 (Act XI of 1961) and in the proviso substituted by the Bihar Amendment, there was no period of limitation for the publication of declaration under Section 6 of the Act. According to his submission, therefore, the limitation introduced in section 6 by the Central Legislation will have no effect so far as this State was concerned and on that ground the land acquisition proceedings in question could not be questioned. 11. Mr. Maitin's submission is directly answered by a division bench decision of this court in Ram Krishna Mission Ashram vs. Amla Kant Chaudhary and others, 1987 B.B.C.J. 498. In that decision, the Hon'ble Mr. Justice N.P Singh examined this very question in considerable details. His Lordship observed that the State amendment was introduced in 1961 and the Central amendment incorporating a period of limitation in section 6 came in 1967 by Act 13 of that year. In that decision, the Hon'ble Mr. Justice N.P Singh examined this very question in considerable details. His Lordship observed that the State amendment was introduced in 1961 and the Central amendment incorporating a period of limitation in section 6 came in 1967 by Act 13 of that year. The conclusion was therefore inescapable that sooner the amendment was introduced in the year, 1967 by adding the proviso in the Central Act, it would be deemed that the same proviso was added in section 6 as amended by the Bihar Amendment Act, 1960. The relevant discussion may be found in paras 14 and 15 of the judgment. 12. In view of the division bench decision of this court, the submission made by Mr. Maitin must be rejected. 13. Mr. Maitin then submitted that the provision contained in provisos (i) and (ii) to sub-section (1) of section 6 were not mandatory in nature and sought to derive support for his submission by making a reference to the language used in section 11A of the Act. According to the learned counsel, Section 11 A clearly stated that in case the award under section 11 was not prepared within two years from the date of the publication of the declaration the entire proceeding for the acquisition of the land shall lapse. Learned counsel submitted that unlike section 11 A, the proviso to section 6(1) did not say that the proceeding 'shall lapse'. 14. I am unable to accept this submission either as the language of section 6 is equally mandatory and the provisos states that no declaration shall be made after the period of limitation as stipulated in provisos (i) and (ii) was over. Moreover, in view of the Supreme Court decisions in f Bhatinda Improvement Trust (supra) and Oxford English School (supra), it is no longer open to contend that the period of limitation provided under the proviso to section 6(1) was not mandatory. 15. Mr. Maitin lastly contended that the petitioner had come to assail the proceedings after considerable delay and according to him on that score itself the writ petition was fit to be dismissed. 15. Mr. Maitin lastly contended that the petitioner had come to assail the proceedings after considerable delay and according to him on that score itself the writ petition was fit to be dismissed. Learned counsel submitted that the notification under section 6 was made in the year, 1995 while this writ petition was filed on 17.3.1997 and in the meanwhile the award had been finally prepared and the petitioner had also filed objection under section 18 of the Act for making reference to the Court. 16. I find the submission unacceptable. The question of delay may arise in a case where the proceeding suffered from a curable irregularity. However, in a case where the proceeding has lapsed by operation of law, all subsequent actions must necessarily be held to be without jurisdiction. In such a case the writ petition cannot be defeated on the ground of delay. Moreover, in this case no third party right has accrued on account of the delay. Further, having regard to the background facts and circumstances of the case, in my opinion the State Government cannot be allowed to raise the objection of delay on the part of the petitioner to defeat this writ petition. 17. In the light of the discussions above, the irresistible conclusion is that the proceedings of Land Acquisition Case No. 1/1993-94-115 stood lapsed after one year from 4.4.1994, the last date of publication of the preliminary notice under section 4 and the publication of the declaration under section 6 of the Act on any date thereafter was non est in the eye of law. The land acquisition proceedings in Case No. PLA 1/93-94-115 are accordingly quashed. The State Govt. is consequently directed to hand over vacant possession of the disputed land to the petitioner without any delay and preferably within two months from today. In the result, this application is allowed.