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Jharkhand High Court · body

2008 DIGILAW 1011 (JHR)

Sheo Prakash Sinha v. State of Jharkhand

2008-08-27

D.G.R.PATNAIK

body2008
Order Since common question of law arises on the basis of identical facts in all the three writ applications, they are heard and disposed of together by this common order. 2. Challenge in these writ petitions is against the initiation of the land acquisition proceeding vide I.A. Case No. 1 of 2006-07 (Annexure-3) in respect of the lands belonging to the petitioners. The petitioners have challenged the notification issued under Section 4(1) of the Land Acquisition Act and the declaration under Section 6 of the Land Acquisition Act. 3. Petitioners claim themselves to be owners of the various units of land situated within Pundag and other areas and this fact is confirmed by the revenue records of the State Government, wherein the names and identity of the petitioners in respect of their respective area of land, stands mutated and they are in occupation and possession of their respective lands. A Public Interest Litigation vide W.P.(PIL) No. 149 of 2003 was filed before this court for shifting of Khatals (cattle sheds) from within the municipal area of Ranchi Town Municipality, on the ground that such khatals have been causing health hazards to the inhabitants of the town. The State Government had agreed to shift all the khatals from within the urban area under Ranchi Municipality and to rehabilitate them beyond the precincts of the urban area by identifying suitable area of land at appropriate places. A direction was accordingly issued, to the State Government by this Court, in the aforesaid Public Interest Litigation to take necessary steps in the matter. The State Government thereafter identified the lands which included the lands belonging to the petitioners and initiated the process of acquisition of the land under the Land Acquisition Act. 4. The grievance of the petitioners is that they were never informed by the respondents by serving them a notice, as required under the provisions of Section 4(1) of the Land Acquisition Act and they could learn about the initiation of the proceeding pending before the Land Acquisition Officer (respondent no. 6) through the newspapers on 26.4.2008. Upon such knowledge, the petitioners had promptly filed their respective objections in the land acquisition proceeding which was initiated vide I.A. Case NO.1 of 2006-07, but no order was passed on the objections of the petitioners and on the other hand, the respondent no. 6) through the newspapers on 26.4.2008. Upon such knowledge, the petitioners had promptly filed their respective objections in the land acquisition proceeding which was initiated vide I.A. Case NO.1 of 2006-07, but no order was passed on the objections of the petitioners and on the other hand, the respondent no. 6 has almost completed the process of acquisition by preparing the awards for payment of compensation and that too in the name of dead persons such as late Wahid Ali from whose heirs and successors, the petitioners and several others had purchased different portions of the land and had acquired right and title over such lands. 5. Assailing the impugned order, Shri P.K. Prasad, Sr. Advocate representing the petitioners, raises the following grounds:- i. That the respondents have failed to comply with the mandatory provisions of Section 4(1) of the Land Acquisition Act (Bihar Amendment) by failing to serve notice upon the petitioners before initiating the process of acquisition of their lands. ii. That the acquisition of the lands by resorting to the emergency provisions under Section 17(2) of the Act, is totally misconceived, illegal and without any basis. Respondents have not made out any case for invoking the emergency provisions under Section 17(2) of the Act and thereby to deprive the petitioners to file their respective objections under Section 5(A) of the Act. The claim of the respondents, as per their counter-affidavit, that the acquisition is being made pursuant to the orders of the court passed in W.P.(PIL) No. 149 of 2003, is also misleading as would be evident from the counter-affidavit filed on behalf of the State Government in the said PIL wherein it was declared that the steps for rehabilitation of khatals can be started for the present at village Hotwar and later, at some other places for which requisite land can be acquired. Admittedly, a vast tract of land belonging to the Government is available at village Hotwar. Yet, instead of initiating steps for the rehabilitation at Hotwar, the respondents had illegally decided to acquire the lands of the petitioners at village Pundag. iii. That the object and purpose for which the rehabilitation was to be undertaken, was to shift the khatals from within the urban area under the Ranchi Municipality, beyond the precincts of the urban area. Yet, instead of initiating steps for the rehabilitation at Hotwar, the respondents had illegally decided to acquire the lands of the petitioners at village Pundag. iii. That the object and purpose for which the rehabilitation was to be undertaken, was to shift the khatals from within the urban area under the Ranchi Municipality, beyond the precincts of the urban area. The lands situated at village Pundag does not serve the object and purpose of the respondents as because, due to rapid construction of houses which have stretched up to the village Pundag, the acquired lands have virtually merged with the urban area of the Ranchi Township. 6. In the counter-affidavit filed on behalf of the District Land Acquisition Officer, Ranchi (respondent no. 6), it is asserted that the State Government took a decision for acquisition of the land of Mouza Pundag falling within various plots which includes the lands of the petitioners measuring total area of 21.15 acres for the purpose of rehabilitating the cattle sheds (Khatals). Such decision was taken to comply with the order/judgment passed in W.P.(PIL) No. 149 of 2003 by the High Court. Accordingly, a proceeding vide L.A. Case No. 1 of 2006-2007 was initiated at the level of the District Land Acquisition Officer, Ranchi. Thereafter, a notification No. 10/DLA, Ranchi, 8/07-388 REV dated 20.4.2007 under Section 4(2) of the amended Land Acquisition Act, 1961, was notified by the Revenue and Land Reforms Department by the Director, Land Acquisition Section of Jharkhand for information to all concerned and copies of the same were forwarded to the Director, Information and Public Relation Department for the publication in two newspapers particularly in one newspaper of the local language and also forwarded the notification to the District Gazette Officer for its publication in the Extraordinary edition of the Zila Gazette. It is further stated that the lands in question have been acquired after thorough inquiry by the Revenue Officer and after observing all the procedures laid down under the Land Acquisition Act. After observing all the procedures. the order. for payment of the awards under the provisions of Section 12(2) of the Act was also issued to the petitioners and simultaneously, press notice was also notified vide M.S. 456(ii) dated 16.5.2008 directing the land owners to turn up by 26.5.2008 positively in the District Land Acquisition Office, Ranchi to receive payment of the awarded amount for the acquired lands. for payment of the awards under the provisions of Section 12(2) of the Act was also issued to the petitioners and simultaneously, press notice was also notified vide M.S. 456(ii) dated 16.5.2008 directing the land owners to turn up by 26.5.2008 positively in the District Land Acquisition Office, Ranchi to receive payment of the awarded amount for the acquired lands. Such notice was treated as a final notice but the petitioners or the landowners did not turn up to receive the awarded amount. The answering respondent has also denied to have received any objection from any of the petitioners. It is contended that even otherwise, such objection appears to have been filed only after acquisition of the land is complete. By a supplementary counter-affidavit, the respondent-Land Acquisition Officer wants to explain that the land acquisition proceeding was initiated under the provisions of Section 17(1) of the Act and not under Section 17(2) of the Act and resort to the provisions of Section 17(1) of the Act was taken on the ground of urgency to rehabilitate the Khatals, in the light of the orders passed by the High Court in the aforesaid Public Interest Litigation after following the procedure laid down under Section 7 of the Act. 7. Shri H.K. Mehta, learned Government Advocate representing the respondents, in his attempt to justify the initiation of the land acquisition proceeding and the legality thereof would explain that the respondents had issued a mandatory notice under Section 4(1) of the Act and had published the same in two local newspapers one of which was of the local vernacular and even as admitted by the petitioner, they got the information about the land acquisition proceeding from the newspaper publication of the notice. Furthermore, the notice was also published in the official Gazette. Referring to the orders/notings in the records of the Land Acquisition Proceeding, learned counsel explains that, as required under the provisions of Section 4(1) of the Act, information of the notice was adequately conveyed to the residents of the locality by the process server, and therefore, the petitioners cannot argue that the mandatory notice under Section 4(1) of the Act was not issued. It is also argued that there is no such requirement under the provisions of Section 4(1) of the Act to make personal service of the notice on the individual landowners and therefore publication of the notice in the newspaper was sufficient compliance of the mandatory requirements. In this context, learned counsel refers to and relies upon the judgment of the Supreme Court in the case of Bai Malibabu and Others vs. State of Gujarat and Others reported in (1978)2 Supreme Court Cases 373. Learned counsel argues further that pursuant to the orders of the High Court in W.P.(PIL) No. 149 of 2003 and commitment made by the State Government before this court to rehabilitate the khatals within a reasonable time frame, an urgent need was felt to acquire suitable lands and therefore, resort was made to the provisions of Section 17(1) of the Act. Though in the PIL, a proposal was mooted by the State Government to relocate the khatals at village Hotwar, but later on, realizing the fact that the village Hotwar is situated more than 25 kms. away from the Ranchi Township and furthermore, the available lands at village Hotwar was insufficient for the purpose of rehabilitation, lands located more nearer, though beyond the precincts of urban area of Ranchi township, were identified at various places on the outskirts of the town including the lands at village Pundag. Learned counsel argues that under such situation, it cannot be argued by the petitioners that the circumstances did not indicate any urgency for resorting to the provisions of Section 17(1) of the Act. In this context, learned counsel refers to and relies upon the judgment of the Supreme Court in the case of A.P. Sareen and Others vs. State of U.P. and Others reported in (1997)9 Supreme Court Cases 359 and also to the judgment in the case of Chameli Singh and Others vs. State of U.P. and Another reported in (1996)2 Supreme Court Cases 549. 8. As per the submission made on behalf of the petitioners, the main ground advanced by them is that prior to the initiation of the proceeding for acquiring their lands, the mandatory provisions of Section 4(1) of the Act was not complied with and they were never served with any notice, as required under the mandatory provisions of Section 4(1) of the Land Acquisition Act. 9. 9. Section 4(1) of the Land Acquisition (Bihar Amendment) Act, 1960 (11 of 1960) reads follows:- "(1) Whenever it appears to the appropriate Government or the Collector that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published at the office of the Collector, at the office of the Sub-Divisional Officer, at the offices of the smallest revenue administrative unit and Gram Panchayat, if any, constituted under the Bihar Panchayat Raj Act. 1947, (Bihar Act VII 1948), and at some conspicuous place in the village in which the land is situated; and the Collector shall cause copies of the notification to be served on all persons known or believed to be interested in the land." 10. The introduction of the words "the Collector shall cause copies of the notification to be served on all persons known or believed to be interested in the land" by the Bihar Amendment, holds significance. 11. It is not disputed that the names of the petitioners have been mutated in the Government Revenue Records with reference to their respective lands. Apparently, such names of the owners were collected by the respondent-Land Acquisition Officer on the basis of the Revenue Records. It implies therefore that the names and identities of the present petitioners as persons interested in the lands sought to be acquired, was known to the respondent-Collector and the Land Acquisition Officer even prior to the initiation of the process for acquiring the lands belonging to the petitioners. Under such circumstances, it was incumbent upon the respondents to serve the mandatory notice under Section 4(1) of the Act upon the owners of the land whose name and identity was available from the Government Revenue Records. Admittedly, no notice under Section 4(1) of the Act was served on any of the present petitioners, as required under the provisions of the Act. The first judgment in the case of Bai Malibabu and Others (supra), is not applicable to the facts of the present case since the issue relating to compliance of the mandatory provisions of Section 4(1) of the Land Acquisition Act, in the present case, has to be considered in the context of Bihar Amendment of the said provision. 12. The first judgment in the case of Bai Malibabu and Others (supra), is not applicable to the facts of the present case since the issue relating to compliance of the mandatory provisions of Section 4(1) of the Land Acquisition Act, in the present case, has to be considered in the context of Bihar Amendment of the said provision. 12. The provisions relating to the publication of the notification fell for consideration before the Supreme Court in the case of Collector (District Magistrate), Allahabad and Another vs. Raja Ram Jaiswal ( AIR 1985 SC 1622 ) in which the Supreme Court held that the notification under Section 4(1) of the Act for initiating process for acquisition of the land is mandatory and failure to comply even a part of the condition laid down under Section 4(1) of the Act is fatal. It was further held that the provisions of Section 4(1) of the Act cannot be held to be mandatory in one situation and directory in another. 13. The facts of the present case, even as admitted by the respondents, would indicate that the mandatory provisions of Section 4(1) of the Act have not been fully complied with. Even though, it is claimed that the mandatory notice was published in the newspaper, but no such notification has been produced and even otherwise, there is no indication that while publishing the notice, the concerned respondent authorities had taken sufficient care to ensure that the "persons known and those who may be interested" would be adequately informed about the Government's intention to acquire their lands. The necessity on the part of the concerned respondents to inform the owners of the land sought to be acquired well in advance, is accentuated on account of the fact that the respondents had wan\ed to resort to the emergent provisions under Section 17(1) of the Act and by taking advantage of Section 17(4) of the Act, the benefit to the owners for filing their respective objections under Section 5 of the Act, was sought to be deprived. 14. I am satisfied from the above facts and circumstances that the initiation of the land acquisition proceeding by failing to comply fully with the mandatory provisions of Section 4(1) of the Act, is unjustified and illegal. 15. 14. I am satisfied from the above facts and circumstances that the initiation of the land acquisition proceeding by failing to comply fully with the mandatory provisions of Section 4(1) of the Act, is unjustified and illegal. 15. Accordingly, by allowing these writ applications, the entire land acquisition proceeding which has been initiated before the Land Acquisition Officer, Ranchi vide L.A. Case NO.1 of 2006-07, is hereby quashed. 16. Since these writ applications are being disposed of on the above issue, I do not feel inclined to go into the other controversial issues raised by the petitioners. 17. The respondent authorities are however, at liberty to initiate proceeding for acquisition of the lands for the purposes of rehabilitation of khatals at suitable and appropriate places as they may deem appropriate, but only after complying with the mandatory provisions for such acquisition, as laid down under the Act. With the above observations and directions, these writ applications are disposed of.