ORDER This writ petition has been filed for quashing the Notification as contained in Memo Nos. 1311 and 1313 dated 10.12.2009 (4) and 10.12.2009 respectively, published in newspapers on 19.12.2009 and 20.12.2009 respectively and notified in District Gazette Extra Ordinary on 03.01.2010 & 6.01.2010 respectively (6) by way of a preliminary notification whereby and whereunder the property over a part of which the petitioner exercises absolute right, title, interest and possession, has been notified for acquisition under Section 4 of the Land Acquisition Act (hereinafter referred to as the ‘L.A.Act’) for a public purpose. 2. In addition to the aforementioned two reliefs the petitioner has also assailed the Letter no.14/387R dated 23.02.2010 (Annexure-3) issued under the signature of Deputy Secretary, Department of Revenue and Land Reforms addressed to the Collector, Patna authorizing him to acquire the aforesaid land and proprty in question under Section 7 and 17(1) of L.A. Act. The petitioners have also sought relief that all other notifications/orders issued subsequently or in consequence of the notification under Section 4 & Section 6 of the Act be also quashed. FACTS AND SUBMISSIONS 3. The petitioners with a purpose to establish their undisputed and admitted right, title and interest and possession over the land in question and also to dispel the premise on which the respondent State Government has embarked upon the acquisition of land in question i.e. the said property was being encroached by unscrupulous persons, brought on record the facts stating therein that he has not encroached on any property and as such branding him as an encroacher of the said land is mala fide and motivated. 4. It is necessary that the genealogy of the family of late S. Hassan Imam is kept in mind to understand the issues of inheritance of S. Hassan Imam’s estate. Sayed Hassan Imam was married twice and his two wives being Bibi Muniba and Bibi Nattie imam. Sayed Hassan Imam from his first wife Bibi Muniba was blessed with one son Sayed Mehdi Imam and two daughters namely, Asma Zafar Imam and Mahmuda Sami. Sayed Mehdi Imam was married too Saiyeda Mehdi Imam and they were blessed with one son Sayed Fazal Imam and one daughter Shamim Amna Imam. Justice Murtaza Fazal Ali was the brother of Saiyada Mehdi Imam and Faiz Murtaza Ali is the son of late Murtaza Fazal Ali. Sayed Mehdi Imam was married too Saiyeda Mehdi Imam and they were blessed with one son Sayed Fazal Imam and one daughter Shamim Amna Imam. Justice Murtaza Fazal Ali was the brother of Saiyada Mehdi Imam and Faiz Murtaza Ali is the son of late Murtaza Fazal Ali. Saiyed Hassan Imam married the second time with Bibi Nattie Imam and from this wedlock Saiyed Askaril Hadi Ali Augustine Imam @ Tootoo Imam was born. Tootoo Imam is blessed with S.H. Francis Imam and Ms. Nattie Shabet Imam. On 28.04.1931 Sayed Hassan Imam executed a Waqf deed in the nature of Waqf Alal Aulad for the benefit of his family. He appointed his wife Mrs. Nattie Imam as the first Sole Muttawali of the Waqf-Alal-Aulad and by the said declaration he delivered the possession of his properties and divested himself of all the properties. The Scheme of Waqf -Alal Aulad provided that after the demise of the 1st Mutwalli the Waqf shall have two joint Muttawalis namely his two sons Saiyed Mehdi Imam and Toottoo Imam. The elder of them being the Senior Muttawali and the younger junior Muttwali. In the case of the death of either of the said joint Muttawallis the survivor of them shall be the sole Muttawalli of the Waqf estate. 5. Learned counsel for the petitioner submitted that the order passed by this Hon’ble Court in three M.J.C. applications being M.J.C. Nos. 770, 1010 & 974 of 1993, which were disposed of by common order dated 27.08.1993 (Annexure-5) clarifying certain observations and directions made in the order and judgment dated 09.04.1993 (Annexre-4). In the aforesaid order the Division Bench of this Hon’ble Court has issued direction to the respondent District Magistrate permitting Tootoo Imam (Vendor of the petitioner) to take possession of 6 Annas Block of “Rizwan”, which has been given to him in the Arbitral Award of year 1936. The petitioner has further made out his specific case that he is purchaser from the said Tootoo Imam, who has 6 annas undisputed share in “Rizwan” and accordingly he had dealt with his share in year 1989 by executing an agreement for sale dated 08.07.1989 with the present petitioner. Due to pendency of writ application No.98/1992 and non-delivery of possession by the Collector, the sale deed could not be executed in pursuance of aforementioned agreement for sale dated 08.07.1989. Due to pendency of writ application No.98/1992 and non-delivery of possession by the Collector, the sale deed could not be executed in pursuance of aforementioned agreement for sale dated 08.07.1989. However, the said agreement for sale was modified by omitting some part of the properties and was executed by Tootoo Imam on 17.05.1998 on receipt of agreed consideration amount. It has been stated that on account of delay in execution of sale deed the petitioner had filed al Title Suit in Patna Civil Court being T.S. No. 58 of 2003 seeking a decree for specific performance of contract dated 17.05.1998. The said suit was decreed in favour of petitioner and sale deed was executed on 13.04.2006. On account of delay in delivery of possession of the vended property by the Vendor Tootoo Imam Execution Case No. 3 of 2003 and 24/2003 were filed. The Executing Court vide order dated 17.02.2007, issued writ for delivery of possession which was duly effected by the Nazir of the Civil Court on the spot on 24.03.2007. 6. So far right, title, and interest and possession over the land in question is concerned the same has been admitted by the respondent authorities in paragraph 9 of their counter affidavit which reads as follows: 7. “That with regard to the statement made in paragraph 4, it is stated that admittedly after the decision of the competent Civil Court in T.S. No.59 of 2003 and order in execution case dated 17.02.2007 and delivery of possession to writ petitioner, he has been vested with the right to claim and receive compensation for his part of the acquired land….” 8. It is stated that in fact the whole dispute arose on account of one contempt application bearing M.J.C. No.1348 of 2009 being filed by Dr. Shahida Hussan in which allegation was made with regard to alleged willful and deliberate disobedience of the orders dated 27.08.1993 and 16.11.1993 passed in M.J.C. No.770/1993, 1010/1993 & 974 of 1993. The said contempt application was being taken up for admission on 17.07.2009 when this Hon’ble Court orally observed indicating to the State Counsel “As to why the State of Bihar was not considering the acquisition of the property. The said contempt application was being taken up for admission on 17.07.2009 when this Hon’ble Court orally observed indicating to the State Counsel “As to why the State of Bihar was not considering the acquisition of the property. The Hon’ble Court passed an order on 17.07.2009 (Annexure-9) in the aforesaid M.J.C. application that the quarrel between the parties representing divergent and seemingly irreconcilable interest it was difficult to proceed unless the property was declared custodia legis during the pendency of the proceeding.” 9. It is further submitted that in pursuance of the aforesaid observation made by this Hon’ble Court contained in Annexure-9 to this writ application then the Advocate General wrote a letter being letter No. 4688 dated 30.07.2009 (Annexure-10) communicating the oral observation of this Hon’ble Court, as regards acquisition of the land in question to the Principle Secretary, Land Reforms Department and to the District Magistrate, Patna. In the said letter it was expressed in clear terms that the property was vulnerable to unscrupulous elements who are trying to grab the property. In the said letter the then Advocate General had also expressed that the land could be acquired under the emergency provision in public interest. Apart from that the then Advocate General had also mentioned in his letter requested to the authorities to examine the feasibility of acquiring the property and make the assessment of the value. Some relevant portion of the said letter (Annexure-10) is quoted herein below:– “The Court, at this stage has not passed any order, however, in course of hearing has observed that the State Government may apply and if finds that property can be put to better use for public purpose and it does not cause financial or other constraints. It may consider acquiring the property under emergent provision in Public Interest.” 10. The Principal Secretary, Department of Revenue and Land Reforms in the light of the above mentioned letter written by the then Advocate General proceeded to draw up the feasibility report of the acquisition of the land in question. In the said feasibility report (Annexre-11), he states the reason for such acquisition to be the litigation between the descendants of late Hasan Imam and further the threat of the land being grabbed. It is relevant to state that no ostensible public purpose is reflected. 11. In the said feasibility report (Annexre-11), he states the reason for such acquisition to be the litigation between the descendants of late Hasan Imam and further the threat of the land being grabbed. It is relevant to state that no ostensible public purpose is reflected. 11. Learned counsel for the petitioner submitted that from the facts stated above particularly the feasibility report contained in Annexure-11 and the averment made by the respondent authorities in paragraph No.10 of their counter affidavit it is now admitted position that the respondent State of Bihar has proceeded with the acquisition proceeding only on the basis of observation made by this Hon’ble Court while hearing a contempt application and in fact no ostensible public purpose was there before the respondent authorities to proceed with the same. Annexure-14 which is a letter written by Deputy Secretary Industries Department, Bihar Patna to Accountant General Bihar, Patna speaks a volume that there was no specific public purpose at the point of time for acquisition of the land in question because in the said letter it has been mentioned that ‘this land after its acquisition will be allotted to different public purposes, such as institutions, conventions centre, tourist and for other development’. It is submitted that since public purpose in that letter was vague and ambiguous, therefore it can be safely said that land was not needed for any ostensible public purpose as indicated by the State Government. In the notification under Section 4, it has been notified that since acquisition is for public purpose invoking power under Section 17(4), thus Section 5A of the Act was withdrawn. It is settled principle of law that Section 17(4) mandatorily requires an opinion to be formed by the concerned Govt. that along with the existence of such urgency of unforeseen emergency there is also a need for dispensing with Section 5A of L.A. Act. In this case opportunity of being heard under Section 5A of L.A. Act has been taken away which has caused serious prejudice to the petitioner because it would have been provided that he must have explained and dispelled the presumption that petitioner was not an encroacher. In this case admittedly objections have not been called for as the State Govt. In this case opportunity of being heard under Section 5A of L.A. Act has been taken away which has caused serious prejudice to the petitioner because it would have been provided that he must have explained and dispelled the presumption that petitioner was not an encroacher. In this case admittedly objections have not been called for as the State Govt. has invoked emergency provision as prescribed under Section 17 but the notifications/orders do not reflect any application of mind or recording of opinion of the appropriate authority while invoking Section 17 of L.A. Act. At the same time, the notification does not disclose any urgency for the said acquisition. Recently, the Apex Court in case of Anand Singh & Another Vs. State of U.P. reported in AIR 2010 S.C. Weekly Page-5152 has held that in cases of planned development of city or for development of residential area, the power of emergency even if invoked the enquiry contemplated under Section 5A of L.A. Act cannot be dispensed with invariably. In para-31 of that judgment their Lordships have given an illustrative list of circumstances in which Section 5A can be dispensed with. Such circumstances have been mentioned as rehabilitation of natural calamity affected persons. Rehabilitation of persons uprooted due to commissioning of dam or housing for lower strata of the society urgently. If the ratio of the judgment is applied to the facts of this case, it can be safely said that dispensing with Section 5A in the present case is totally illegal because there was no such urgent necessity for invoking Section 17 of L.A. Act. In the case of the Collector Allahabad Vs. Raja Ram Jaiswal reported in AIR 1995 Supreme Court page-1622, it has been held that authority exercising power under Section 4 of the L.A. Act must exercise power in good faith. It has been further held that where power to acquire land is used for extraneous and irrelevant purpose then it becomes colourable exercise of power and court will strike down the notification as illegal and invalid. In this case also the facts stated herein above clearly goes to show that the authority have started doing exercise for acquisition only after the letter written by the advocate general that too on the basis of oral observation made by a Bench of this Court while hearing the contempt petition. In this case also the facts stated herein above clearly goes to show that the authority have started doing exercise for acquisition only after the letter written by the advocate general that too on the basis of oral observation made by a Bench of this Court while hearing the contempt petition. Therefore, it must be held that the authorities have not exercised power in good faith. The impugned orders passed by the respondent authority cannot be sustained and are fit to be quashed. 12. Learned counsel for respondent Nos.4 & 6 has submitted that this writ petition has been filed by the petitioner for quashing the notification and declaration issued by the Govt. of Bihar in L.A. Case No. 5 of 2009-10 on the basis of requisition filed by the Department of Industries, Govt. of Bihar for establishment of institutions, convention hall, tourist centre and for other development purposes in the area. The process of land acquisition has been started for the land situated in village Moharrampur, Thana No.137, P.S. Kotwali, Ward No.2 Sheet No.2, Plot No.121 District Patna which is commonly known as Rizwan Palace situated at Frazer Road, Patna. The requisition for the acquisition of land has been filed by the requisitioning department in compliance of the direction of the Hon’ble High Court of Judicature at Patna in course of hearing of M.J.C. No.1162 of 2007 and M.J.C. No.1348 of 2007. The letter dated 30.07.2009, in this context has been communicated by the Advocate General, Bihar, Patna. The process of acquisition has been started under the emergent provision of the L.A.Act. 13. He has further stated that admittedly after the decision of the competent Civil Court in T.S. No.59 of 2003 and order in Execution Case dated 17.02.2007 and delivery of possession to writ petitioner, he has been vested with the right to claim and receive compensation for his part of the acquired land, however, the allegations made are denied. 14. Learned counsel for the Intervenor namely, Faiz Murtaza Ali submitted that the applicant has full locus standi in respect of ‘RIZWAN’ but the instant writ petitioner has malevolently suppressed the aforesaid facts and did not implead the applicant as party. Late lamented Hassan Imam Purchased the property in question known as ‘RIZWAN’ located in Fraser Road, Patna in the year 1925 in the name of his second wife. Late lamented Hassan Imam Purchased the property in question known as ‘RIZWAN’ located in Fraser Road, Patna in the year 1925 in the name of his second wife. From the first wedlock born out one son namely late Syed Mehdi Imam, and two daughters namely Mrs. Mahnooda Sami and Mrs. Asma Jafar Imam. The late lamented Mr. Mehdi Imam was survived by his wife Saiyeeda Mehdi Imam and his daughter Shamima Amena Imam. The said daughter died on 23.05.1998 leaving behind her mother alone as the sole surviving heir. Subsequently, the said sole heir was also died on 22.02.2004. Due to death of Saiyeeda Mehdi Imam, her estate was inherited by the present petitioner being son of Justice Murtaza Fazal Ali, who was the full brother of Saiyeeda Mehdi Imam, inherited the estate of her daughter Mrs. Shamim Amena Imam. 15. From bare perusal of Section/Article 88 of the Mohammedan Law of Mulla shows that heirs are divided into three classes and each classes is divided into two sections. The intervener/respondent being son of the brother of the late Saiyeeda Mehdi Imam Shall inherit the estate of the deceased as there is no one in category-I and since the intervener comes under the category-II he shall exclude Class-II. In that view Hon’ble Jharkhand High Court, Ranchi has decided the matter in Civil Review No.46 of 2008 in terms of the order dated 06.02.2009. The writ petitioners suffer from the Vice of “Suppression Veri land Suggestio Falsi.” The writ petitioner has no locus standi. The instant writ petitioners are claiming their right, title on the basis of T.S. No. 58 of 2003, which is being controlled and managed by petitioners and vendor namely, S.A.H.A. Imam (Vendor), himself in one name or other either as plaintiffs or as defendants and they all relate to the property which is the subject matter of the present writ and all such facts have been meticulously concealed with dishonest and in respect of the property in lawful possession of other heirs. The Decree in T.S. No.58 of 2003 is collusive in sense. There are many shares and interest holders in the property in question but the fact has been suppressed intentionally and knowingly and other heirs have not been made party by the writ petitioner in above Title Suit no.58 of 2003 was only for specific performance of contract. The Decree in T.S. No.58 of 2003 is collusive in sense. There are many shares and interest holders in the property in question but the fact has been suppressed intentionally and knowingly and other heirs have not been made party by the writ petitioner in above Title Suit no.58 of 2003 was only for specific performance of contract. The said property has been divided into two blocks comprising block of 10 annas and block of 6 annas respectively by an award dated 6th May 1936 especially on the point of ‘RIZWAN’. 6 annas portions was made over to Mrs. Nattiee Imam second wife of late Hassan Imam as Mutwalli and in respect of 10 annas block beneficiaries were Mr. Mehdi Imam and his two sisters namely Asma Zafar Imam & Mrs. Mahmuda Sami. Total area of the land of 10 annas is 76.49 Kathas and 6 annas is 45.70 Kathas. Above facts are admitted by all the parties in various proceedings. After passage of 30 years, 10 annas property in question was divided into three blocks by the order of this Hon’ble Court dated 23rd March, 1967 passed in Miscellaneous Appeal No.260 of 1966 and as such it is managed as follows: Block-A 5 annas, Block-B 2.5 annas and Block-C 2.5 annas. The writ petitioner has made agreement with owner of 6 annas share holder namely S.A.H.A.A. Imam @ Tutoo Imam on 08.07. 1989 for agreement to sale measuring area of 72 Katha 23 dhur and 13 dhurkees. After passage of 9 years, again with an evil design they modified the said agreement to sale on 17.05.1998 and reduced area of the said land is 51 Kathas. From perusal of modified agreement for sale date 17.09.1998 it would be evidently clear that how the writ petitioner in collusion with other have made agreement in the presence of the witnesses S.A.H.A.A. Imam have signed over it on 17.05.1998 in presence of two witnesses on 17.05.1998 at Hazaribagh and on the other hand writ petitioner has signed over it on 12.07.1998 in presence of other witnesses who has signed on 12.07.1998 at Patna. Both the parties have exercised their power in his own town i.e. Hazaribagh & Patna with their own witnesses. Both the parties have exercised their power in his own town i.e. Hazaribagh & Patna with their own witnesses. The entire agreement is fake, fraudulent and without manner of law and on the basis of the said agreement to sale entire proceeding in the said T.S. No.58/2003 and execution Case No.3 of 2003 is an evil thought and game plan to defeat the process of law and hit and try method to achieve indirectly which they could not succeed directly. Title Suit No.176 of 1986 was filed at Hazaribagh Court beyond the jurisdiction as no part of it situate at Hazaribagh rather it situate at Patna. The decree obtained by the owner of 6 annas part of the property in question namely SAHAA Imam @ Tutoo Imam by fraud, which has been challenged in T.S. No. 160 of 1999 before Civill Court, Patna and learned Court below granted injunction on 21.08.1999 and restrained not to alienate and interfere in ‘RIZWAN’ property on the basis of decree obtained in T.S. No.176/86 till disposal of the T.S. No. 160 of 1999 and the instant intervener has been substituted in place of plaintiff. No question of any right, title and interest to the petitioner to keep the property of the share of 10 annas block, if any, it is void ab initio. 16. Learned counsel for the intervener submitted that when title and possession has been remains decided, then how can writ petitioner got title and interest on the decree passed in T.S. No.58/2003 which is only for specific performance of contract. However T.S. No. 160/99 is still pending for the same property in question in which injunction was already granted. It is also important to mention here that it will be necessary before the Hon’ble Court for kind perusal of the order of CWJC No. 98 of 1992 and CWJC No. 228 of 1992 decided on 09.04.1993 and MJC No.974 of 1993 decided on 27.08.1993 by the Division Bench of this Hon’ble Court and it would be transpired that how the writ petitioner has obtained decree in the teeth of the Hon’ble Court. Under the facts and circumstances, it is crystal clear that the writ petitioner has not locus to challenge the acquisition proceeding of the Govt. Acquisition process under L.A. Act has been completed for the plot No.121 of ‘RIZWAN’. Under the facts and circumstances, it is crystal clear that the writ petitioner has not locus to challenge the acquisition proceeding of the Govt. Acquisition process under L.A. Act has been completed for the plot No.121 of ‘RIZWAN’. The intervener respondent has no objection keeping the vast interest of public, on acquisition of my share in this land from total area measuring 3.149 acre strictly under land acquisition Act and make payment as per the present market value. In this regard it will be better if this land become useful for the benefit of public instead of being lying vacant and useless. 17. In the aforesaid facts and circumstances, it is apparent that the intervener respondent is directly and substantially interested in the outcome of the present writ application. Hence, the instant writ petition is liable; to be dismissed. 18. Learned counsel for the Intervener respondent namely, Tehmina Imam Punvani submitted that the applicant has full locus standi in respect of ‘RIZWAN’. But the instant writ petitioner has malevolently suppressed the aforesaid facts and did not implead the applicant as party. The late lamented Hassan Imam Purchased the property in question known as ‘RIZWAN’ located in Fraser Road, Patna in the year 1925 in the name of his second wife. From the first wedlock born out one son namely late Syed Mehdi Imam, and two daughters namely Mrs. Mahnooda Sami and Mrs. Asma Zafar Imam. The present intervener/respondent is the only child of late Syed Akbar Imam who was the only son of late Mrs. Asma Jafar Imam, Mutawalli in beneficiary of Block-B of 2.5 annas. From perusal of Genealogical table, it will be clear before the Hon’ble Court that the present intervener/respondent is beneficiary of 2.5 annas part out of 10 annas. 19. Learned counsel for the intervener/respondent submitted that the writ petitioner is trying to mislead the Hon’ble Court and not came with clean hands before the Hon?ble Court and as such the writ petitioner cannot have a title to the lands in question and hence no locus standi. The writ petition suffers from the Vice of “Suppression veri and suggestion falsi.” The writ petitioner has no locus standi. The writ petition suffers from the Vice of “Suppression veri and suggestion falsi.” The writ petitioner has no locus standi. The instant writ petitioner is claiming his right, title on the basis of T.S. No.58/03 which is being controlled and managed by petitioner and vendor namely S.A.H.A.A. Imam (Vendor), himself in one name or other either as plaintiffs or as defendants and they all relate to the property which is the subject matter of the present writ and all such facts have been meticulously concealed with dishonest and in respect of the property in lawful possession of the heirs. The Decree in T.S. No.58/03 is collusive in sense, there are many share holders and interest holders in the property in question but the fact has been suppressed intentionally and knowingly and other heirs have not been made party by the writ petitioner in above Title Suit No.58/03 was only for specific performance of contract. The said property has been divided into two blocks comprising block of 10 annas and block of 6 annas respectively by an award dated 6th May 1936 especially on the point of ‘RIZWAN’. 6 annas portions was made over to Mrs. Nattiee Imam second wife of late Hassan Imam as Mutawalli and in respect of 10 annas block beneficiaries were Mr. Hehdi Imam and his two sisters namely Asma Zafar imam & Mrs. Mahmuda Sami. Total area of the land of 10 annas has 76.49 Kathas and 6 annas has 45.70 Kathas. After passage of 30 years, 10 annas property in question was divided into three blocks by the order of this Hon’ble Court dated 23rd March, 1967 passed in Miscellaneous Appeal No.260 of 1966 and as such it is managed as follows: Block-A 5 annas, Block-B 2.5 annas and Block-C 2.5 annas. The aforesaid division of 10 annas block of the property in question has attained finality of law. The writ petitioner has made an agreement with owner of 6 annas share holder namely S.A.H.A.A. Imam @ Tutoo Imam on 08.07.1989 for agreement to sale measuring area of 72 Kathas 23 dhur and 13 dhurkees. After passage of 9 years again with an evil design they modified the said agreement to sale on 17.05.1998 and reduced area of the said land as 51 Kathas. 20. After passage of 9 years again with an evil design they modified the said agreement to sale on 17.05.1998 and reduced area of the said land as 51 Kathas. 20. It is submitted that from perusal of modified agreement for sale dated 17.09.1998, it would be evidently clear that how the writ petitioner in collusion with other (sharer of 6 annas) have made agreement in presence of the witnesses S.A.H.A.A. Imam have signed over it on 17.05.1998 in presence of two witnesses at Hazaribagh and on the other hand writ petitioner has signed over it on 12.07.98 in presence of other witnesses who has signed on 12.07.1998 at Patna. Both the parties have exercised their power, in his own town i.e. Hazaribagh & Patna with their own witnesses. The entire agreement is fake, fraudulent and without manner of law and on the basis of the said agreement to sale entire proceeding in the said T.S. No.58 of 2003 and Execution Case No.3 of 2003 is an evil thought and game plan to defeat the process of law and hit and try method to achieve indirectly which they could not succeed directly. When title and possession has been remains decided, then how writ can petitioner got title and interest on the decree passed in T.S. No.58 of 2003 which is only for specific performance of contract. 21. It is further stated on behalf of the intervener that the writ petitioners have no locus to challenge the acquisition proceeding of the Govt. Acquisition process under L.A.Act has been completed for the plot No.12 of ‘RIZWAN’. The intervener respondent has no objection keeping the vast interest of public, on acquisition of my share in this land from total area measuring 3.149 acre strictly under Land Acquisition Act and make payment as per the present market value. In this regard, it will be better if this land becomes useful for the benefit of public instead of being lying vacant. In the aforesaid facts and circumstances it is apparent that the intervener respondent is directly and substantially interested in the outcome of the present writ application. Hence, the instant writ petition is liable to be dismissed. FINDINGS 22. Right to property was under Chapter-III i.e. fundamental right under Article 31 and after enforcement of the Constitution, the power eminent domain sovereign was embodied under Article-31. Hence, the instant writ petition is liable to be dismissed. FINDINGS 22. Right to property was under Chapter-III i.e. fundamental right under Article 31 and after enforcement of the Constitution, the power eminent domain sovereign was embodied under Article-31. Article 31 and right to property from the Chapter of fundamental right was committed and Article-31 was repealed by Constitution (Forty-fourth Amendment) Act, 1978, Section 6 (w.e.f. 20-6-1979) and by the same act Article-300A has been inserted. Article-300A is in verbatim as Clause 1 of Article-31 was. Thus, a person may be deprived of his property save by authority of law. The deprivation of private property of a person is ex-propriety and legislation thereof is ex-propriety legislation. The Hon’ble Supreme Court in the case of Radhy Shyam (dead) through LRS & Ors. Vs. State of U.P. reported in (211) 5 SCC 553 in concluding para-77(iii) is held as under:– “(iii). Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one’s property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the court is not only entitled but is duty-bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the landowner is likely to become landless and deprived of the only source of his livelihood and/or shelter.” The legislation which provide for compulsory acquisition of private property by the said form in the category of ex-propriety legislation and such legislation must be constituted strictly. 23. The undisputed fact in the present case is that during the course of hearing of M.J.C. No.1162 of 2007 & M.J.C. No.1348 of 2007 on the basis of letter of Advocate General, a Division Bench of this Court observed orally that while the land is not acquired by the State in order to distribution of the compensation amongst the shareholders so that the dispute pending in various writ petitions may come to an end, which is evident by the letter No.4688 dated 30.07.2009 of the Advocate General apprising the oral observation made by the High Court and requesting the Government to acquire the land. The letter is on record. The letter is on record. On the basis of this fact it has been rightly argued that the condition precedent for issue of preliminary gazette notification was not fulfilled. The Sub-section (1) of Section 4 states that wherever it appears to be the appropriate government that land in any locality is needed or is likely to be needed for any public purpose. A plain reading of which clearly provides that need must exist prior to the date of such gazette notification and government is satisfied that the need was for the public purpose. The State of Bihar has issued executive orders which have been complied in form of the rules in exercise of its executive power. Clause-5 of Chapter-II of the Manual provides that when it is initiated to take up land for public purpose under Section 4(1), an Officer duly authorized on behalf of the department, local body or company concerned saw the plot to the Collector in district in which the land is situated, for draft notification under Section 4(1). Clause-11 provides as under:– “11. Particulars to be specified in the application for draft notification.– The application shall set forth clearly the purpose for which the land is required and shall be accompanied by a plan. It shall specify the limits of the land and shall state the local names, if any, by which the land may be known, and shall contain such other particulars as may be necessary for the better identification of the land. It shall also supply the names of persons interested in the land, as far as they can be ascertained. In railway projects, the requisition plans should be supplied in triplicate” Para-13 prescribes further procedure than how to be forbidden to the Government. Para-13 is quoted hereunder: “13. Publication of notification in the Gazette and procedure for its local publication.–The Collector shall prepare the draft notification in all cases in communication with the requiring officer, if necessary, and shall sign and forward it (with a statement of the particulars of any religious buildings, tombs or graveyards that there may be on the land to be taken) to the Commissioner for transmission to the requiring authority, who will in his turn forward it to his superior authority for submission to the State Government in the administrative department for approval. In forwarding draft notification for the acquisition of land on behalf of a local authority or Company the Collector should invariably state whether the local authority or Company is in a position to meet the expenditure involved, including the law charges. When approved, the Government in the administrative department will refer the case to Revenue Department for publication of the notification in the Bihar Gazette. At the time of sending the notification to the press, the Revenue Department will inform the Collector direct, intimating the approximate date on which the notification will appear in the gazette. The Collector will watch for the notification in the gazette, and in the meantime take such steps as may ensure the immediate publication of the notification, as soon as it appears in the gazette.” 24. Thus, from the Rules it is evident that when the Government is satisfied on such draft notification that land is needed for public purpose it accord approval than it is sent back for its publication in gazette. Here in the present case these rules have not been followed rather the letter of the Advocate General has taken a commanding position on which the Collector, Patna as well as Industries and Tourism Department proceeded. Thus, really there was no need for the acquisition of land in dispute prior to the letter of the Advocate General as there was no requisition from any department of the Government or local authority. In accordance with the provisions of the rules contained in the manual. Government too without applying its mind framed rules and approved the draft requisition and issued the notification. The important word noted for public purpose clearly indicates that need for public purpose must exist. Here need not exist any need for public purpose prior to the letter of Advocate General. Thus, condition precedent to initiate acquisition proceeding by issuing the preliminary notification was not fulfilled and which vitiates the entire acquisition proceedings. 25. The notifications under Section 4(1) in separate notification, and Sections 6(1) & 17 (4) in one notification have been issued on one and same date, which is evident from Annexures-1 & 2, which itself vitiates the acquisition proceedings. 26. 25. The notifications under Section 4(1) in separate notification, and Sections 6(1) & 17 (4) in one notification have been issued on one and same date, which is evident from Annexures-1 & 2, which itself vitiates the acquisition proceedings. 26. The preliminary notification under Section 4(1) has to be published in the official gazette and in two daily news papers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at the convenient places in the said locality, the last dates of such publication and the giving of such public notice is hereinafter referred as the date of the publication of the notification. Thereafter, Section 17(4) Special powers in cases of urgency provides as under:– “17(4) In the case of any land to which, in the opinion of the (appropriate Government) the provisions of sub-section (1) or sub-section (2) are applicable, the (appropriate Government) may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time (after the date of the publication of the notification) under Section 4, sub-section (1).” Section 6(1) Declaration that land is required for a public purpose:– “6(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under Section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification ;under Section 4, sub-section (1) irrespective of whether one report or different reports has or have been mae (wherever required) under Section 5A, Sub-section (2).” Thus, from the plain reading of the provisions quoted above Sub-section (1) of Section 4, Sub-section (4) of Section 17 and Sub-section (1) of Section 6 clearly postulates that after the last date of such publication as contained in Sub-section (1) of Section 4, or therewith, a direction under Sub-section (4) of Section 17 is to be issued. Thereafter, a declaration shall be made under the signatures of a Secretary to the Government or some officer duly authorized to certify its order. 27. If a notification under Sub-section (4) of Section 17 is issued along with notification under Section 6, it violates the provisions contained in Sub-Section (4) of Section 17 which has been quoted above. A perusal of which indicates that after a notification under Sub-section (4) of Section 17 only a notification can be issued as has been held by the Hon’ble Supreme Court in case of Union of India Vs. Mukesh Hansh reported in (2004) 8 SCC page-14 which reads as under:– “30. Sub-section (2) of Section 17 contemplates a different tye of urgency inasmuch as it should be an unforeseen emergency. Under this section if the appropriate Government is satisfied that there is such unforeseen emergency the authorities can take possession of the land even without waiting for the fifteen day period contemplated under Section 9(1). Therefore, in cases, where the Government is satisfied that there is an unforeseen emergency, it will have to in the normal course, issue a Section 4(1) notification, hold Section 5-A inquiry, make Section 6 declaration, and issue Section 9(1) notice and possession can be taken immediately thereafter without waiting for the period of 15 days prescribed under Section 9(1) of the Act. 31. Section 17(4) as noticed above, provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency or unforeseen emergency as required under sub-sections (1) or (2) of Section 17, it may direct that the provisions of Section 5A shall not apply and if such direction is given then Section 5A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of Section 4(1) notification and possession can be made.” From the reading of the aforesaid paras, it is evident that Hon’ble Supreme Court has used the word especially in para-31 that urgency as required under Sub-sections (1) & (2) of Section 17, it may direct the provisions of Section 5-A shall not apply and if such direction is given then Section 5A enquiry can be dispensed with and a declaration may be made under Section 6 on Publication of Section 4(1) notification and possession can be made. The plain language of Section 17(4) also provides the issue of notification under Section 6 after the notification under Section 17(4) is given dispensing with Section 5A. Thus, the acquisition proceeding stands vitiated. 28. There is another aspect to be examined. Section 6(1) says the declaration to be signed by the Secretary or the Officer Authorized and the declaration from the reading of Section 6(1) it is evident that declaration becomes after the signature of the Secretary or the Officer Authorized. The notification under Section 4(1) is made under Section 5A. It shall be conclusive evidence that the land is needed for public purpose. Here, the gazette notification has been issued under Section 4 and publication of the said notification in the two newspapers is dated 10.12.2009, while the declaration under Sub-section (1) is dated 03.01.2010. Thus, the declaration under Section 6 proceeds the gazette notification or newspaper publication under Sub-section (1) which also completely vitiates the acquisition proceeding. 29. In view of the finding recorded above, the acquisition proceedings stands vitiated on three counts, the acquisition proceedings initiated in pursuance of the notifications under Sections 4 & 6 are hereby quashed and the writ petition is allowed. No order as to costs.