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2012 DIGILAW 1238 (PAT)

Shahida Hasan v. State of Bihar

2012-09-04

SHEEMA ALI KHAN

body2012
ORDER This writ application has been filed by Dr. (Mrs.) Sahida Hasan who claims to be the Mutwalli of 10 annas share of Hasan Imam Waqf Estate. She has challenged the notification published under Section 4 of the Land Acquisition Act (hereinafter referred to as the L. A. Act) on 19.12.2009 in the newspaper and on 03.01.2010 in the District Gazette Extra ordinary declaring that the land and building known as “Rizwan Palace” is to be acquired by the State Government. This writ application also seeks to challenge the decision of the State Government holding that the acquisition is being made under Section 17 (1) of the L. A. Act is unwarranted as there are no circumstances which justify the use of Section 17 (1) of the L. A. Act. 2. The main ground for challenging the said acquisition is that the petitioner claims that the properties are Waqf properties and could not have been acquired without the prior consent of the Waqf Board and by doing so, the State Government is depriving the petitioner and the other beneficiaries their rights vis-à-vis the properties sought to be acquired. The question as to whether the Waqf Board would have any jurisdiction over a waqf-alal-aulad has been decided in the case of Begum Asma Jafar Iman & Anr. Vs. The State of Bihar & Ors. (AIR 1975 Patna 48). A challenge was made by the petitioner to the authority of the Bihar State Shia Waqf Board to interfere in the administration, management and affairs of Hasan Imam Waqf Estate on the ground that it does not come under the provisions of the Waqf Act. While considering this question, this Court has considered several judgments of the Privy Council as well as the Supreme Court and come to the conclusion that only such waqf-alal-aulad in which simultaneously while making provisions for the family members and descendents some property is dedicated for any purpose which is recognized as pious, religious or charitable by Muslim Law will be covered by the definition of waqf. In the present writ application there are no such pleadings to the effect that the property in question was dedicated for the poor or for any pious purpose recognized under the Muslim Law. In the present writ application there are no such pleadings to the effect that the property in question was dedicated for the poor or for any pious purpose recognized under the Muslim Law. As such this Court finds that there is no occasion for the State Government to seek permission of the Wakf Board for the purposes of acquisition of the land. It is also contended that the said acquisition has been made without determining the shares of the beneficiaries. I must reject this submission at the very outset as there is no dispute regarding the share, the only dispute is with regard to demarcation of the share. It is contended that the acquisition is bad on the ground that it does not acquire the entire block of land appertaining to the properties known as “Rizwan Palace” for which there is no justification. 3. Two intervention applications have been filed. I.A. No. 8666 of 2011 has been filed by Faiz Murtaza Ali, son of Late (Justice) Murtaza Fazal Ali, who was the brother of Ms. Mehndi Imam, who claims that he too has a share in the property. The intervention filed by Faiz Murtaza Ali, son of Late (Justice) Murtaza Fazal Ali raises a question as to whether Late (Justice) Murtaza Fazal Ali would be entitled to claim a share in the property which is Waqf-Alal-Aulad created by Late Hassan Imam. It is clear that as far as Waqf property is concerned, it is totally dependent on the wishes of the Wakif, and the ordinary laws of the Inheritance would not apply. It is obvious from the genealogical table below that Late Murtaza Fazal Ali is not a direct descendent from the branch of Hassan Imam, the Wakif. He is the brother of Mrs. Mehndi Imam. Since, the waqf deed is not before this Court, the rights of Faiz Murtaza Ali cannot be determined inasmuch as his share, if any, cannot be decided by this Court. 4. The second intervention application being I.A. No. 8667 of 2011 has been filed by Ms. Tehmina Imam Punwani, daughter of Late Syed Akbar Imam. She admittedly has a share in the said property and as such she is necessary party in the writ application. I may add here that Ms. 4. The second intervention application being I.A. No. 8667 of 2011 has been filed by Ms. Tehmina Imam Punwani, daughter of Late Syed Akbar Imam. She admittedly has a share in the said property and as such she is necessary party in the writ application. I may add here that Ms. Punwani is not opposing the acquisition, as in its present state, she has not been able to gain or enjoy the benefits which are to accrue to the beneficiaries, due to the litigations with regard to this property. 5. Before addressing the issues with respect to the validity of the acquisition proceedings, it would be proper to give the background of this case. 6. Hasan Imam, a leading Barrister of Bihar, created a Waqf-Alal-Aulad which included the property known as “Rizwan Palace”, the design of the building is like an English castle; it is majestic and has sprawling lawns in front of the building, situated at Frazer Road in the heart of the Patna Town. It bears Holding No. 207 (old) 265 (new) and 208 (old) 266 (new) in Circle No. 6, Ward No. 2. The total measurement as per the circle records as well as the deed creating the Waqf is 06 bighas 2 kathas and 3 dhurs (3.82 acres approx.) equivalent to 16125 sq. mts. After the death of Syed Hassan Imam, in the year 1933, differences arose between the heirs and beneficiaries of the Waqf. Late Syed Hassan Imam had two wives; the first wife was Bibi Muniba and the second wife was Nattie Imam. The first wife had one son, namely, Syed Mehdi Imam and two daughters, namely, Ms. Asma Jaffar Imam and Ms. Mehmuda Sami. The second wife had one son, namely, Syed Askari Hadi Ali Augustine Imam @ Tootoo Imam. In order to resolve the differences which arose between the beneficiaries of the properties including Rizwan Palace, the matter was referred to arbitration to Mr. Justice Mac Pherson and Mr. Justice Khawaja Md. Noor, the then sitting Judges of the Patna High Court. The arbitrators pronounced their awards on 02nd May, 1935 followed by two supplementary awards dated 16th January, 1936 and 06th May, 1936. It was the specific claim of Ms. Nattie Imam that the Rizwan was her personal property as it was purchased out of her money. This claim of Ms. Noor, the then sitting Judges of the Patna High Court. The arbitrators pronounced their awards on 02nd May, 1935 followed by two supplementary awards dated 16th January, 1936 and 06th May, 1936. It was the specific claim of Ms. Nattie Imam that the Rizwan was her personal property as it was purchased out of her money. This claim of Ms. Nattie Imam was rejected by the arbitrators who resolved the dispute by dividing the managements and benefits of Hassan Imam Waqf Estate into two blocks; one comprising 06 annas i.e. 143.25 decimals of land and the other comprising 10 annas share i.e. 238.75 decimals of land. Ms. Nattie Imam was declared the Motwalli of her 06 annas block and Syed Mehndi Imam was declared as the Motwalli of 10 annas block and was made accountable for the share of his two sisters. In the third award, Rizwan was also divided in the same ratio i.e. 06 annas and 10 annas respectively, which apparently was acted upon. 7. All the aforesaid facts are from the judgments of this Court passed in CWJC Nos. 258 and 289 of 1974 (AIR 1975 Patna 48), which has been annexed and produced before this Court as well as several orders in several other writ petitions. It also transpires from the records that the shares between the beneficiaries of the 10 annas block was declared by a compromise which was recorded in a meeting held on 05.07.1964 that Mr. Mehndi Imam was declared to have 05 annas beneficial interest, whereas his two sisters were given 2½ annas share each. As of today, the genealogical table of the family is as follows:– Late Syed Hassan Imam (died) 1st Wife-Bibi Muniba 2nd wife-Mrs. Nattie Imam (died) (died) Syed Askar Hadi Ali Augustine Imam @ Tootoo Imam (6 annas) Syed Mehndi Mrs. Mahmuda Mrs. Asma Jaffar Imam (son) Sami (daughter) Imam (daughter) (10 annas) (2½ annas) (2½ annas) (dead) (died) (died) Wife Sayeda Mehndi Imam Died on 22.04.2004 (5 annas) Daughter Brother Shamim Amna Imam Late Justice Murtaza (died on 23.08.1998) Fazal Ali (died) Son Fazal Imam Son (died before Mother) Faiz Murtaza Ali (5 annans) (applicant/claimant) Son Daughter Daughter Akbar Imam (died) Fatima Beg Mrs. Anis Majid Daughter Tahmina Imam Punvani (applicant/claimant) 8. Having given the background in this case, this Court will now discuss the merits of the challenge made in the writ application. 9. Anis Majid Daughter Tahmina Imam Punvani (applicant/claimant) 8. Having given the background in this case, this Court will now discuss the merits of the challenge made in the writ application. 9. While hearing the matter, this Court called for the records of the case. From the records, it appears that on 01.10.2009, the Principal Secretary of the Revenue Department requested the Secretary of the Infrastructure Development Authority to submit the performa for the purpose of acquisition, so that further steps could be taken in the matter. On 08.10.2009, the Infrastructure Development Authority asked the Circle Officer to report the names of the persons who were in possession of the said lands as per the revenue records and to submit a map of the lands. On 09.10.2009, by letter no. 4176, the Technical Director of the Industry Department addressed a letter to the Director, Infrastructure Development Authority to send the budget requirement to the Collector and to inform them that a reply was to be filed in the MJC regarding the status of the lands and building of Rizwan Palace. The letter dated 14.10.2009 indicates that the Managing Director of the Infrastructure Development Authority informed the Secretary of the Industry Department that he has received the performas of the L. A. Act along with map for acquisition of 3.15 acres of land. The compensation of Rs. 68,58,01,300/- has been fixed and the budget approval has to be obtained for the release of the money. On 19.10.2009, the Industry Department forwarded the request dealing with the details regarding the proposal for acquisition to the Collector, Patna. The Deputy Secretary, Industry Department addressed a letter to the Collector, Patna sending details with respect to 3.15 acres of land to be acquired. It is further stated in the said letter that the land and building is required for the convention centre, and for development of Tourism in Bihar, which could be for the benefit of the residents of Bihar. Thus, the public purpose has been set out by this letter. On 27.12.2009, the concerned Department asked for release of Rs. 68 crores for the said acquisition, which was later enhanced to Rs. 89.13 crores. This fact would be apparent from letter no. 318/L dated 02.02.2012. Thus, the public purpose has been set out by this letter. On 27.12.2009, the concerned Department asked for release of Rs. 68 crores for the said acquisition, which was later enhanced to Rs. 89.13 crores. This fact would be apparent from letter no. 318/L dated 02.02.2012. There was some delay in the final notification under Section 4 of the L.A. Act as there was mistake in defining the mauza which had been inserted as Moheenpur instead of Mohanampur. This would be apparent from the letter dated 10.11.2009. REASON FOR ACQUISITION DEFECTIVE 10. The first argument raised on behalf of the petitioner is that the entire acquisition proceedings has been initiated on the basis of the opinion of the Advocate General, which according to the Counsel for the petitioner, indicates that it was the wish of the Court that the property in question should be acquired. The letter of the Advocate General cannot be considered for the purpose of holding that it reflects the wishes of the Court. The file does not indicate that the Government had proposed to acquire the land because of the letter of the Advocate General. This argument advanced on behalf of the petitioner is to be rejected for the reason that the order of this Court does not indicate in any manner that the Court had expressed any opinion on this aspect of the matter, rather, the order dated 03.09.2009 passed in MJC No. 1162 of 2007 reads as follows :– “03.09.2009 Heard in part. Learned Counsel for the parties are present. Mr. Roy Shivaji Nath, learned Additional Advocate General No. 4, appears and places an affidavit on behalf of the District Magistrate, Patna. He further submits that acquisition of the land/property in questions as per the provisions of the Land Acquisition Act is under active consideration of the State Government. The District Magistrate, Patna shall ensure that nobody enters the vacant portions of the land, even though surrounded by boundary wall, and no construction takes place within the premises. Let a copy of this order be handed over to learned Additional Advocate General No. 4. As prayed, put up on 8.10.2009.” 11. The order aforesaid indicate that the acquisition for the property known as “Rizwan” was under active consideration of the Collector, Patna. The records produced by Mr. Let a copy of this order be handed over to learned Additional Advocate General No. 4. As prayed, put up on 8.10.2009.” 11. The order aforesaid indicate that the acquisition for the property known as “Rizwan” was under active consideration of the Collector, Patna. The records produced by Mr. Lalit Kishore, Additional Advocate General No. 1 regarding the acquisition proceedings do not refer to any opinion of the Advocate General or even refer remotely that there was a suggestion by the High Court that the land in question ought to be acquired by the State Government. PARTIAL ACQUISITION 12. The second contention on behalf of the petitioner is that the State Government was to acquire the entire property of Rizwan. The Notification, on the other hand, shows that the acquisition is for 12747 sq. mts., which does not contain the entire lands in question. An explanation which seems to be correct is that the entire lands measure 16125 sq. mts., which would be apparent from the order of this Court (Annexure-11). Part of the land of Rizwan measuring 03 kathas, equivalent to 408 sq. mts. was transferred by Tootoo Imam to Krishna Kumar Singh. Apparently, a ceiling proceeding under the Urban Land Ceiling Act was also initiated with respect to 6136 sq. mts. of land belonging to Rizwan, a writ application being CWJC No. 6747 of 1988 was filed challenging the said proceedings, the matter was remanded to the Appellate Authority to hear the petitioner Dr. (Mrs.) Sahida Imam (petitioner in the present writ application) as she has not been noticed for being heard in the urban ceiling case initiated against the beneficiaries of the Hassan Imam Waqf Estate. It has been orally submitted on behalf of the petitioner as well as the intervenors that the urban land ceiling has been subsequently dropped. 13. There appears to be some discrepancies as to whether the total land on which Rizwan Palace stands has been acquired or not. In the opinion of this Court, the State Government ought to acquire the total land appertaining to Rizwan Palace, as it would smack of some extraneous circumstances, if some of the lands are left out. I, therefore, direct that the total lands be acquired. It has been argued that Tootoo Imam has sold some portion of the lawn even before the start of the acquisition proceeding. I, therefore, direct that the total lands be acquired. It has been argued that Tootoo Imam has sold some portion of the lawn even before the start of the acquisition proceeding. It has been argued that Tootoo Imam has sold in excess of 6 annas share, thereby violating the arbitration referred to earlier in this order. Exemption of certain lands which are part and parcel of Rizwan Palace would amount to showing favoritism to someone who is in possession of the land by virtue of some transfer deed. Even otherwise, since the State Government has taken a decision to acquire the entire lands of Rizwan Palace, it should do so immediately as the exclusion of some land for the reason that there was a mistake in the measurement, which may be a bonafide reason for leaving part of the land may smack of favoritism to someone. I must clarify here the present Land Acquisition proceeding should not be stuck up because of steps which are to be taken by the State Government, when they begin a fresh proceeding for the left over land. NO JUSTIFICATION FOR INVOKATION OF SECTION 17 (1) AND BARRING SECTION5-A OF THE L. A. ACT 14. The petitioners have challenged the acquisition proceedings on the ground that there was no reason to justify the use of emergent provisions i.e. Section 17 (1) of the L.A. Act and by doing so, the State Government has deprived the right of the petitioners and other similarly situated persons from filing objections under Section 5-A of the L.A. Act, which is a valuable right and the land holders cannot be deprived of an opportunity of hearing without there being good reasons for doing so. 15. The notification for acquisition was issued on 10.12.2009. The relevant portion reads as follows:– “By utilizing power under Section 17 (4) of the L. A. Act, Government of Bihar have decided not to enforce Section 5 of the L. A. Act, until the schemes are being completed.” The declaration under Section 6 of the L. A. Act was issued on the same day i.e. 10.12.2009. By letter dated 23.02.2010, the Collector, Patna was directed to take possession of the land under Section 9 of the L. A. Act within 15 days of making payment of 82 per cent of the compensation amount to the land holders. By letter dated 23.02.2010, the Collector, Patna was directed to take possession of the land under Section 9 of the L. A. Act within 15 days of making payment of 82 per cent of the compensation amount to the land holders. The writ application has been filed on 25.02.2011 challenging the acquisition proceedings. 16. The reason for acquisition under the emergent provisions is that the State Government is in need of a piece of land where they could establish a tourist centre, convention halls etc. in public interest without dislocation of people which causes grievance and heart burn. The Rizwan Palace and the lands appertaining thereto have not been in used for years together. Earlier, Rizwan Palace was on rent to the Union Government. After the Union Government vacated the property, it remained unoccupied. The old renowned building not in a dilapidated state of neglect. Apart from which, Rizwan Palace is a valuable heritage structure, which in the opinion of this Court, ought to be protected to retain its beauty and majesty should not be broken down in the fight between the parties, who are the land holder, and go to waste by sheer neglect. This observation/direction of this Court is subject to the feasibility report. The very majesty of the building which will be equivalent; if not better than ‘SULTAN PALACE’ (where the Government has its Transport Office) would be attractive to a tourist. The various letters of the State Government referred to in this writ application disclose the mind of the State Government to acquire these lands so that they could take immediate possession of the lands and utilize the building and land for the purpose of opening the convention halls, tourist centre etc., which would benefit the State and the people living in Bihar. The reasons as stated in the letters of the State Government would indicate that in fact there is sufficient ground to invoke the provisions of Sections 17 (1) and 17 (4) of the Land Acquisition Act. 17. I may further point out that there has been no delay by the State Government to acquire the lands in question. The decision to acquire was taken on 01.10.2009 and the notification issued on 10.12.2009. Thus, the State Government has acted promptly. The delay if any has been caused by the intervention of petitioners and several others who are purchasers from one of the beneficiaries. 18. The decision to acquire was taken on 01.10.2009 and the notification issued on 10.12.2009. Thus, the State Government has acted promptly. The delay if any has been caused by the intervention of petitioners and several others who are purchasers from one of the beneficiaries. 18. Before dealing with the case laws cited by the Counsel for the petitioner, this Court would also like to record that there have been several writ applications filed in this Court by the land holders (beneficiaries) as well as those persons who had purchased from these land holders. Apart from which, there are partition suits filed by some of the beneficiaries. This Court is giving reference of the suits from the order passed in MJC No. 1348 of 2007 and analogous cases. It has been recorded that Amar Nath Pandey, purchaser from Tootoo Imam had filed Title Suit No. 58 of 2003. The degree was executed and as per the report of the Nazir, the delivery of possession was handed over on 10.03.2007. While discussing this issue, vide order dated 14.02.2012, an objection was taken that Tootoo Imam has no right to sell any particular piece of land appertaining to lawns of ‘Rizwan’ as there had been no demarcation of the open space. It was argued that until there is such demarcation, Tootoo Imam did not have the right to sell the said portion to Amar Nath Pandey. This Court after examining this aspect of the matter has held as follows:– “We are unable to accept the contentions that the open spaces i.e. Lawns and out offices had also been specifically partitioned by metes and bounds. For this, arrangements were required to be made but when the matter was considered by the Division Bench of this Court it was evident that the lawn was not in exclusive possession of any of the parties. Title is quite different and distinct from physical possession. Tenant in common may have defined shares in a property but further formalities are necessary in order to acquire lawful physical possession over specific areas after partition by metes and bounds. From the materials on record we do not find anything to show that there had been specific partition of the open lawns and out offices by metes and bounds between the tenants in common. 14. From the materials on record we do not find anything to show that there had been specific partition of the open lawns and out offices by metes and bounds between the tenants in common. 14. In view of the above it is not deemed possible for the present to hold possession over any part of lawns of Rizwan property in favour of any of the parties including Amar Nath Pandey to be lawful so as to entitle them to make construction over such areas.” 19. Title Suit No. 488 of 1982 has been filed which was dismissed for which a restoration petition is pending in the Court below. Title (Partition) suit No. 399 of 2009 has been preferred by Faiz Murtaza and Title Suit No. 160 of 1999 has been preferred by Saiyda Mehndi Imam (now deceased). Apart from which, Tootoo Imam has filed Title Suit No. 259 of 1983 which is also said to be pending before the Civil Court, Patna. It has also been recorded that Title Suit No. 160 of 1999 has been filed in which an injunction order has been passed restraining the alienation of any portion of the Rizwan Palace by the Court below vide its order dated 21.08.1989. 20. The contempt petition referred to above was filed as there was a violation of an earlier order of contempt passed in MJC No. 770 of 1993, 1010 of 1993 and 974 of 1993 in which a direction was given to the District Magistrate, Patna to evict any person who is in occupation of 10 annas premises in an unauthorized manner as soon as possible. The allegation in the contempt application that there has been a violation, as certain persons had encroached on the 10 annas share. While disposing of the contempt application referred to above, this Court upheld the interim order passed in this contempt application on 17.07.2009, wherein the Court had declared the building including pucca construction and open lands as Custodial Legis. The order dated 17.07.2009 is quoted herein below:– “17-07-2009 “Learned counsel for the parties are present. In view of the internecine quarrel between the parties representing divergent and seemingly irreconcilable interests, it is difficult to proceed unless the properties are declared custodia legis during the pendency of the proceedings. The order dated 17.07.2009 is quoted herein below:– “17-07-2009 “Learned counsel for the parties are present. In view of the internecine quarrel between the parties representing divergent and seemingly irreconcilable interests, it is difficult to proceed unless the properties are declared custodia legis during the pendency of the proceedings. In that view of the matter, the entire premises known as Rizwan Building including pucca constructions and open lands are hereby declared custodia legis and shall be in the possession of the District Magistrate, Patna, until further orders of this Court. It will be open to him to obtain directions from this Court whenever he feels necessary to do so. As jointly prayed for by learned counsel for the parties, put up on 24.8.2009, at the top of the list side by side with M.J.C. No.1162 of 2007, with a view to its final disposal. The time in the meanwhile may be utilized by the parties for completion of pleadings. Let a copy of this order be handed over to Mr. Roy Shivaji Nath, learned Additional Advocate General No.4, today itself.” 21. In conclusion, it has been recorded that the order passed on 17.07.2009 shall be effective and the property known as “Rizwan” including all pucca constructions on it as well as the open lands be declared as custodia legis and were to be in the possession of the District Magistrate. The order holding the lands to be custodia legis was challenged by filing an S.L.P (Civil) No. 15763 of 2010 before the Supreme Court which stood dismissed. 22. This Court has mentioned these facts for the reason to show that after the building which was on rent was vacated by the Union of Government, several attempts were made by land grabbers to purchase or forcefully take possession of the lands and building in question appertaining to Rizwan Palace. Eventually, none of the parties even remotely interested in this piece of land were able to take possession of Rizwan Palace. Finally, the land and the building were declared as custodia legis. It is thus apparent that even though both the petitioner and other beneficiaries has a defined share in the property, they were never in a position to enjoy the benefits or the usufructs of the said property due to several disputes and suits that were filed in this case. Finally, the land and the building were declared as custodia legis. It is thus apparent that even though both the petitioner and other beneficiaries has a defined share in the property, they were never in a position to enjoy the benefits or the usufructs of the said property due to several disputes and suits that were filed in this case. In a proceeding under Section 17 (1) of the L.A. Act, where the provisions of Section 5 (1) of the L.A. Act are dispensed with, the parties obviously do not have the right to raise objections. The question is what could be raised by the parties while filing an objection under Section 5 of the L. A. Act? The answer is that the rights of property being a valuable right, the parties are at liberty to show that they would face grave hardship and if they are dispossessed of the lands sought to be acquired or that there is an alternative site available for the purpose for which the lands are required. The facts in this case disclose that the petitioner and the other beneficiaries were never in physical possession of the property and it has nowhere being pleaded that there is an alternative site available for the purposes as set out by the State Government, or that they would be facing hardship if they were not given the opportunity to be heard. It goes without saying that the petitioner and the other beneficiaries in this case would be entitled to raise issues such as adequate payment of compensation or issues regarding the share in the money that they would be entitled to. 23. In this context, this Court will examine the decisions cited on behalf of the petitioner that the reasons for acquisition under Section 17 (1) of the L. A. Act are vague and do not justify the use of emergent provisions under the Act. 24. It has been argued that in the case Essco Fab Private Limited and Another Vs. State of Haryana and Another [ 2009 (2) SCC 377 ], the Supreme Court had held that the urgency clause could not be invoked by the respondent-State. Enquiry and hearing all objections provided by Section 5A of the Land Acquisition Act could not have been dispensed with. The reason for holding so was that the land acquisition proceeding was initiated in the year 1982. Enquiry and hearing all objections provided by Section 5A of the Land Acquisition Act could not have been dispensed with. The reason for holding so was that the land acquisition proceeding was initiated in the year 1982. In 1991, when Essco Fab Private Limited made an application for praying for change of users of lands, which was rejected on the ground that it was likely that the land would be required for the public purpose. Nothing was done for about a decade and the notification was issued for the first time in the year 2001 and urgency clause was applied. Under these extreme circumstances, the Supreme Court held that there was no justification to dispense with Section 5-A of the Act, as there was no urgency in the matter, which would be apparent from the manner in which the State had proceeded for the acquisition of the land. The present case is distinguishable on the obvious grounds that the facts disclose that there is no ambiguity in the reasons for acquisition as disclosed by the State Government in its various letters, which decision has been implemented without any delay and the delay, if any, has been caused by various objections and litigations raised by the petitioners or/and similarly situated persons. 25. The next case relied upon is the case of Anand Singh and Others Vs. State of Uttar Pradesh and Others [ (2010) 11 SCC 242 ]. In this case, the State Government of Uttar Pradesh purportedly acquired about 209.515 Hectares of land for a public purpose, namely, for residential colonies by Gorakhpur Development Authority, Gorakhpur vide notice issued by them. By use of the powers under Section 17 (4) of the Act, it was stated in the notification that Section 5-A of the Act shall not apply. By use of the powers under Section 17 (4) of the Act, it was stated in the notification that Section 5-A of the Act shall not apply. While referring to several cases and specifically noticing the facts of this case, the Apex Court has held that apparently acquisition of a particular property for public purpose, “the only right that the owner or the person interested in the property has, is to submit his objections within the prescribed time under Section 5A of the Act and persuade the State Authorities to drop the acquisition of that particular land by stating the reasons of such unsuitability of the land for the stated public purpose, the grave hardship that may be caused to him by such impropriation, availability of alternative land for the public purpose and the like”. 26. Several issues were raised in this case, one of them being delay between the pre-notification and the post-notification stage, it was held that unexplained delay would have a bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the State Government before the Court, justifying the urgency. The Apex Court while considering the facts of this particular case, has considered the facts has observed at paragraph 46 of the judgment that “development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5-A may not be held and objections of landowners/persons interested may not be considered”. It was also noted that out of the total work for development, more than 60 per cent of the work had been completed. Thus, the Court took this fact into consideration that some of the land holder has accepted “takings” on their lands, and, therefore, it was held that it was too late in the days to undo what had already been done. Eventually, the Apex Court has held that since the aforesaid fact was disputed, the appellants may make an application to the State Authorities regarding this aspect. Eventually, what weighed with the Apex Court was the fact that the urgency provisions was involved for development of a planned city, which does not justify the notification of acquisition under the emergency clause as it is a time consuming project. It is apparent that the present case can be distinguished on facts. Eventually, what weighed with the Apex Court was the fact that the urgency provisions was involved for development of a planned city, which does not justify the notification of acquisition under the emergency clause as it is a time consuming project. It is apparent that the present case can be distinguished on facts. The emergency clause has been invoked without causing any sort of displacement to any person whatsoever and the ground for invoking the emergency clause is apparently justifiable. 27. Counsel for the petitioner has also referred to the case of Dev Sharan and Others Vs. State of Uttar Pradesh and Others [ (2011) 4 SCC 769 . The facts were that the lands were to be acquired for the purpose of construction of a Jail. The Apex Court has held that the construction of jail, although is a public purpose, does not call for a notification under Section 17 (4) of the Land Acquisition Act. The grounds on which the Court allowed the civil appeal was that in construing public purpose, a broad overall view has to be taken and the focus may be on ensuring maximum benefit to the largest number of people. The Courts have to examine the questions whether small land holders lose their livelihood and rights by means of such acquisition and as such, the Court held that the State was not justified in invoking the provisions of Section 17 (4) of the L.A. Act and exempting the matter to be heard under Section 5-A of the L.A. Act. 28. In the case of Radhy Shyam and Others Vs. State of Uttar Pradesh and Others, [ (2011) 5 SCC 553 ], the State of Uttar Pradesh acquired the land for the purpose of land development planned for Gautam Budha Nagar through Greater Noida Industrial Development Authority. The appellant before the Supreme Court challenged the acquisition on several grounds. (i) That the land cannot be used for industrial purposes because in the draft Master Plan of Greater Noida (2021), the same is shown as part of the residential zone. (ii) That they had already constructed dwelling houses and as per the policy of the State Government, the residential structures are exempted from acquisition. (i) That the land cannot be used for industrial purposes because in the draft Master Plan of Greater Noida (2021), the same is shown as part of the residential zone. (ii) That they had already constructed dwelling houses and as per the policy of the State Government, the residential structures are exempted from acquisition. (iii) That the State Government arbitrarily invoked Section 17 (1) read with Section 17 (4) of the Act and deprived them of their valuable right to raise objections under Section 5-A. (iv) The acquisition of land is vitiated by arbitrariness, mala fides and violation of Article 14 of the Constitution inasmuch as lands of the Member of Legislative Assembly and other influential persons were left out from acquisition despite the fact that they were not in ‘abadi’, but they were not given similar treatment despite the fact that their land was part of ‘abadi’ and they had constructed dwelling units. In the present case, while dealing with the acquisition, the notification of Section 17 (1) read with Section 17 (4) of the L.A. Act, the Supreme Court noted that the lands sought to be acquired had been acquired in total disregard of the policy of the State Government to leave out lands on which dwelling units have already been constructed. In the present case, some of the land holders were landless and poor and were forced to migrate to nearby cities only to live in slums. Moreover, the State Government had failed to show that there was any urgency in acquiring the land. It may be pointed out here that the Apex Curt has also held in favour of the appellants with respect to the other issues raised in this case. This judgment culls out the proposition that may be followed in interpretation of acquisition of land, which are being quoted below:– “(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner’s consent provided that such assertion is on account of public exigency and for public good. (ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly. (ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly. (iii) However, 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. (iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons. (v) Section 17 (1) read with Section 17 (4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired. (vi) The satisfaction of the Government on the issue or urgency is subjective but is a condition precedent to the exercise of power us 17 (1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the authorities concerned did not apply mind to the relevant factors and the records. (vii) The exercise of power by the Government under Section 17 (1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word “may” in Section 17(4) makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under Section 17 (1) or 17 (2). In other words, invoking of Section 17 (4) is not a necessary concomitant of the exercise of power under Section 17 (1). (viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Sections 17 (1) and/or 17 (4). The Court can take judicial noticed of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17 1). In any case, exclusion of rules of audi alteram partem embodied in Sections 5-A (1) and (2) is not at all warranted in such matters. (ix) If land is acquired for the benefit of private persons, the court should view the invoking of Sections 17 91) and/or 17 (4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.” 29. The principles aforesaid are not applicable to the facts of the present case as the State Government has exercised its powers for a public purpose which would benefit the State and the people living therein as it would increase opportunities for tourism and create business for the citizens to cater to the demands of tourism, it would further increase the possibility of creating business such as supply of food (catering for the guests who visits State of Bihar during conventions) and the like and as such, it cannot be said that the purpose for which the acquisition has been made is not a public purpose or is limited and would benefit only a few persons. Besides which, the revenue of the State would increase which would ultimately benefit the people of Bihar, as the Government would have the funds available for the development work. 30. The next case referred to is the case of Devendra Kumar Tyagi and others Vs. State of Uttar Pradesh and others [ (2011) 9 SCC 164 ]. The facts are that the Court was monitoring the relocation of bone mills and allied industries in various parts of the State of Uttar Pradesh including the district of Gaziabad in public interest proceeding which was initiated in the year 1994. The Apex Court while monitoring these proceedings had issued various orders to the Uttar Pradesh Pollution Control Board and the Central Pollution Control Board. The State Government in compliance with the order dated 17.08.2004 issued by the Supreme Court for relocation of the bone mills and allied industries issued a notification under Section 4 on 03.07.2006 which was published on 04.07.2006. Thereafter, the State Government took 17 months in order to make a declaration of the notification under Section 6 from the date of publication of the notification under Section 4 of the L. A. Act. The Supreme Court thus held that the State Government was not justified in invoking the urgency provisions under Section 17 of the L. A. Act, thereby depriving the appellants of their valuable rights to raise objections and give them an opportunity of hearing for the purpose of persuading the State Government that their properties may not be acquired. In the present case, there is no delay on the part of the State Government and as such, the findings of the above case would not be applicable to the present case as the Supreme Court had quashed the notification on grounds of delay and latches. 31. I may also refer to a recent decision in the case of Ram Dhari Jindal Memorial Trust Vs. Union of India and Others [ AIR 2012 SC 1878 ]. The facts of the case were that there was requirement of houses for nearly 8,00,000 persons within the reach of common man in Delhi. In order to meet the shortage of accommodation, the Delhi Development Authority sought acquisition of land for the scheme known as “Rohini Residential Scheme”. A notification was issued under Section 4 (1) of the L. A. Act. In the said notification, it was mentioned that Lt. In order to meet the shortage of accommodation, the Delhi Development Authority sought acquisition of land for the scheme known as “Rohini Residential Scheme”. A notification was issued under Section 4 (1) of the L. A. Act. In the said notification, it was mentioned that Lt. Governor, Delhi was satisfied that the provisions of sub-section (1) of Section 17 of the L. A. Act were applicable to the land mentioned in the notification and he was pleased under sub-section (4) of Section 17 of the L. A. Act to direct that all the provisions of Section 5A of the Act would not apply. The appellant before the Supreme Court was in possession of 14 bighas 18 Biswas of land in village Shahbad-Daulatpur after the said land came to be donated to it by the erstwhile owners. The appellant was running a school in the said premises. A number of other writ applications were also filed before the Supreme Court challenging the acquisition proceeding. The Court while discussing the issue has observed as follows:– “The exceptional and extraordinary power of doing away with an enquiry under Section 5-A in a case where possession of the land is required urgently or in an unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is in built in Section 17 itself for exercise of the exceptional power in dispensing with enquiry under Section 5-A. Exceptional the power, the more circumspect the Government must be in its exercise. The Government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5-A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A.” 32. It has also been noted by the Court that the need for development for housing colony to meet the requirement of the increasing population of India is a „distant dream?. The question of development of a city or the development of residential area, the power of urgency may be invoked by the Government and even such power is invoked, takes a lot of time. The Government has to consider as to whether they would be doing injustice to the persons whose lands are said to be acquired. The question of development of a city or the development of residential area, the power of urgency may be invoked by the Government and even such power is invoked, takes a lot of time. The Government has to consider as to whether they would be doing injustice to the persons whose lands are said to be acquired. It has also been held that Section 17 could be invoked where exceptional circumstances arose such as rehabilitation of natural calamity etc. The Apex Court has, therefore, held that the Government should apply its mind with respect to the dispensation of Section 5-A of the L.A. Act in a case where the acquisition is made under Section 17 (1) and (4) of the L. A. Act. The Government should be satisfied that they would need immediate possession of the land for carrying out the stated purpose. In the present case, it is established that the petitioner or for that matter, the beneficiaries or the purchasers from the beneficiaries are not in possession of the property sought to be acquired. The only factor in favour of the petitioner is that she and others like her may get a higher value for the land compound to the compensation fixed by the State Government. It is a fact that it may take several decades before any one party would be put in possession of the lands in question. It is an undisputed fact that the lands in question are part of a trust deed which is Waqf-Alal-Aulad, in which the members of the families of the Wakif would get the benefit that would accrue from such lands. At present, it is vacant building which is deteriorating day by day due to beggaries of time and as such, the petitioners would not suffer irreparably, if the lands were to be acquired and for this reason, this Court finds the notification under Section 17 (1) of the L. A. Act and the dispensation of Section 5-A of the L. A. Act to be justified. While parting with this order, certain directions which have been passed in this order may be summarized:– (i) The State Government would be required to acquire the entire lands appertaining to ‘Rizwan Palace’ for the reasons mentioned in the order. While parting with this order, certain directions which have been passed in this order may be summarized:– (i) The State Government would be required to acquire the entire lands appertaining to ‘Rizwan Palace’ for the reasons mentioned in the order. (ii) The compensation amount should be deposited in a nationalized bank within a period of two months on receipt of a copy of this order by the District Land Acquisition Officer, Patna. The reason for passing this order is that there are several civil litigations pending in the Civil Courts regarding partition. Apart from which, this Court is informed that the petitioner has challenged the sale deeds executed by Syed Askari Hadi Ali Augustine Imam @ Tootoo Imam. Therefore, it may take some time to decide these issues. I may observe that while upholding the acquisition proceeding, the suit for partition would literally become infructuous in view of the fact that it would perhaps not be required to demarcate the shares of the beneficiaries, although this question may be relevant in those cases in which the sale deed executed by Syed Askari Hadi Ali Augustine Imam @ Tootoo Imam has been challenged. It will be open to the Courts/parties to consider this aspect of the matter. In the circumstances, it would be just and proper that the money should be deposited so that the beneficiaries could at least gain the benefit of the interest on the principle amount as it is the least that they would be entitled to considering the acceleration prices. (iii) The State Government is directed to maintain the facade and design of the building so that it does not loose its character subject to what has been observed earlier. They should also try and upkeep the lawns so as to beautify the entire property. It has been submitted on behalf of the parties that in order to honour the wishes of the Wakif, the State Government should allow the building to retain its original name by calling it RIZWAN CONVENTION HALL or RIZWAN TOURISM CENTRE or the like. This Court leaves it to the State Government to take a decision regarding this aspect of the matter. This Court leaves it to the State Government to take a decision regarding this aspect of the matter. (iv) This Court also directs that all suits with respect to Rizwan or Rizwan Palace may be brought to the notice of the District Judge, Patna by the parties, so that they can be heard side by side, for a just and proper decision in the matter. This direction has been passed so that the beneficiaries of the trust can get their respective share of the compensation amount expeditiously. 33. This writ application is thus dismissed for the reasons mentioned aforesaid.