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2013 DIGILAW 1101 (PAT)

Rajiv Kumar v. State Of Bihar

2013-09-10

RAMESH KUMAR DATTA

body2013
ORDER 1. Heard learned counsel for the petitioners and learned counsel for the State. 2. The petitioners had filed the writ application seeking various reliefs like quashing the notification/declaration issued under Sections 4 and 6 of the Land Acquisition Act, in so far as it relates to Survey plot Nos. 151 and 152, Mauza Mithapur, Thana No. 19, P.S. Phulwari, District-Patna and also for quashing of the various letters issued by the respondents making changes in the alignment of the Mithapur Arm of the Mithapur Road Over Bridge. However, during the course of submission, learned counsel for the petitioners confined his case to the question of setting aside the notifications under the Land Acquisition Act only on the ground that the invocation of the urgency clause under Section 17(4) of the Land Acquisition Act was not justified. 3. The short facts of the case, relevant for the decision of the aforesaid matter, are that on 3.12.1998 a plan for constructing Road Over Bridge (ROB) on the northern and southern side of railway level crossing no. 79A at Mithapur was mooted by the Road Construction Department, Government of Bihar. The said plan was approved and sanction accorded in the year 1999. The construction work was entrusted to Bihar Rajya Pul Nirman Nigam Limited. M/s. Freyssinet was appointed as consultant for the bridge. The said ROB was to have 5 limbs. The petitioners are concerned only with the Mithapur limb of the Fly Over and the notification under Section 4 dated 11.1.2013 and the declaration under Section 6 of the Act issued on 14.1.2013 in so far as they concern the acquisition of plot nos. 151 and 152 which measure a total area of 1 acre 36 decimals. Earlier when the general alignment was approved in the year 2003, the Mithapur limb was proposed to be constructed on a Govt. land being Survey Plot No. 177, a public road recorded in the Survey Khatian in the name of the District Board. 151 and 152 which measure a total area of 1 acre 36 decimals. Earlier when the general alignment was approved in the year 2003, the Mithapur limb was proposed to be constructed on a Govt. land being Survey Plot No. 177, a public road recorded in the Survey Khatian in the name of the District Board. It is the stand of the petitioners that the said public road was encroached upon by as many as 33 encroachers and when steps were taken to remove them they have put serious resistance and exercised their influence over the respondent-authorities as a result of which in the year 2006 the respondents took a decision to shift the alignment of Mithapur limb from the Ram Market, Mithapur to Gaya crossing towards Narayan Market without assigning any reason for the change of the alignment except that earlier approved two lanes has been decided to be made four lanes. The stand of the petitioners which is not denied in the counter affidavit is that the then District Magisatrate, Patna in the year 2010-11 gave his report stating that a large population may be affected by construction of the Flyover as per the changed alignment and requested to arrange the alignment in such a manner so that minimum people are affected. However, the said suggestion was not accepted by the respondents and after a lapse of further time the aforesaid notification/declaration dated 11.1.2013 and 14.1.2013 were published under the Land Acquisition Act, 1894 invoking the provisions of Section 17(4) of the Act and thus taking away the right of the petitioners to file objections under Section 5A of the Act. Aggrieved by the same the petitioners have approached this Court. 4. Learned counsel for the petitioners has raised various pleas stating that the action of the respondents is wholly unjustified on the merits of the matter. However, it is his principal submission that the same has been compounded by not even giving an opportunity to the petitioners to object under Section 5-A of the Act to the land acquisition proceedings for which they have substantial grounds as mentioned in different paragraphs of the writ application. However, it is his principal submission that the same has been compounded by not even giving an opportunity to the petitioners to object under Section 5-A of the Act to the land acquisition proceedings for which they have substantial grounds as mentioned in different paragraphs of the writ application. Apart from the same, it is contended that there was absolutely no occasion for invoking the urgency clause under Section 17 (4) of the Act considering that the project proposal was initiated in the year 1998 and even after its approval in the year 2003 two other changes in the general alignment design was suggested in the month of January, 2006 and finally approved in the year 2007, whereas the notification thereafter has been issued in the year 2013 and thus, according to learned counsel, there was no occasion for the respondents to have invoked the urgency clause taking away the valuable rights of the petitioners to object. It is submitted that in such objection the petitioners could have shown that the acquisition process undertaken on their lands was contrary to the principles of land acquisition as laid down in various decisions of this Court and of the Apex Court. 5. It is submitted by learned counsel that as a result of said acquisition the petitioners would become homeless whereas sufficient government land itself is available for the purpose of the construction of the bridge and it is only for reasons best known to the respondents, including inviting the wrath of the encroachers over the government land in Plot No. 177, that the petitioners are being victimized by the present acquisition process. 6. In this regard learned counsel has pointed out that in the certificate issued for urgent acquisition by the Collector, Patna along with the Additional Collector, District Land Acquisition Officer and the Additional District Land Acquisition Officer, Patna, it has been falsely stated that to the knowledge of the said officials the land is suitable for agricultural purposes and therefore, the provisions of Sections 17(4) and 5A of the Act cannot be applicable; that there is no special or general objection to the land acquisition and that from the proposed acquisition no raiyat would become landless. It is submitted that the said statements made in the certificate dated 8.8.2012 issued by the four officials headed by the Collector is false to the knowledge of those officials in view of the report of the Collector given in the year 2010-11 as also a report dated 9.4.2010 of the District Land Acquisition Officer which have been brought on the record. 7. In support of his aforesaid stand learned counsel for the petitioners relies upon a large number of decisions of the Supreme Court. In the case of Radhy Shyam (dead) through LRS v. State of U.P. & ors.: (2011) 5 SCC 553 , the Apex Court has summarized the principles which emerged from analysis of the relevant statutory provisions and their interpretation in different cases by the Apex Court in para-77 of the said decision which is quoted below: “77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out:- (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 — Dwarkadas Shrinivas v. Sholapur Spg. and Wvg. Co. Ltd., Charanjit Lal Chowdhury v. Union of India and Jilubhai Nanbhai Khachar v. State of Gujarat. (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 — DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana; State of Maharashtra v. B.E. Billimoria and Dev Sharan v. State of U.P. (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 scrutinise 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, can the State 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 of urgency is subjective but is a condition precedent to the exercise of power under Section 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 their 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. (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 sub-section (4) of Section 17 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 sub-section (1) or (2) of Section 17. 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 notice 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, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule 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(1) and/or 17(4) with suspicion and carefully scrutinise the relevant record before adjudicating upon the legality of such acquisition.” 8. Learned counsel relies upon the case of Raghbir Singh Sehrawat v. State of Haryana & Ors. : (2012) 1 SCC 792 , in paras 39 and 43 of which it has been held as follows:- “39. In this context, it is necessary to remember that the rules of natural justice have been ingrained in the scheme of Section 5-A with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. He can also point out that the land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilised for execution of the particular project or scheme. 43. It also appears that the authorities concerned are totally unmindful of the plight of those sections of the society, who are deprived of their only asset like small house, small industrial unit, etc. They do not realise that having one’s own house is a lifetime dream of a majority of the population of this country. Economically affluent class of society can easily afford to have one or more houses at any place or locality in the country but other sections of the society find it extremely difficult to purchase land and construct house. Majority of the people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity. Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialisation. Similarly, some people set up small industrial units after seeking permission from the competent authority. They do so with the hope of generating additional income for their family. If the land on which small units are established is acquired, their hopes are shattered. Therefore, before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes. If the acquisition of private land becomes absolutely necessary, then too, the authorities concerned must strictly comply with the relevant statutory provisions and the rules of natural justice.” 9. Learned counsel also relies upon a decision of the Supreme Court in the case of Darshan Lal Nagpal (dead) by LRS. Vs. Government of NCT of Delhi & Ors.: (2012) 2 SCC 327 , para 36 of which is reproduced below: “36. Learned counsel also relies upon a decision of the Supreme Court in the case of Darshan Lal Nagpal (dead) by LRS. Vs. Government of NCT of Delhi & Ors.: (2012) 2 SCC 327 , para 36 of which is reproduced below: “36. It needs no emphasis that majority of the projects undertaken by the State and its agencies/instrumentalities, the implementation of which requires public money, are meant to benefit the people at large or substantially a large segment of the society. If what the High Court has observed is treated as a correct statement of law, then in all such cases the acquiring authority will be justified in invoking Section 17 of the Act and dispense with the inquiry contemplated under Section 5-A, which would necessarily result in depriving the owner of his property without any opportunity to raise legitimate objection. However, as has been repeatedly held by this Court, the invoking of the urgency provisions can be justified only if there exists real emergency which cannot brook delay of even few weeks or months. In other words, the urgency provisions can be invoked only if even small delay of few weeks or months may frustrate the public purpose for which the land is sought to be acquired. Nobody can contest that the purpose for which the appellants’ land and land belonging to others was sought to be acquired was a public purpose but it is one thing to say that the State and its instrumentality wants to execute a project of public importance without loss of time and it is an altogether different thing to say that for execution of such project, private individuals should be deprived of their property without even being heard.” 10. Learned counsel also relies upon a decision of the Apex Court in the case of Dev Sharan & Ors. Vs. State of U.P. & Ors; (2011) 4 SCC 769 , in paras 19, 34 and 39 of which it has been held as follows:- 19. Therefore, the concept of public purpose on this broad horizon must also be read into the provisions of emergency power under Section 17 with the consequential dispensation of right of hearing under Section 5-A of the said Act. The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. If public purpose can be satisfied by not rendering the common man homeless and by exploring other avenues of acquisition, the court, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice. 34. The question is whether in the admitted facts of this case, invoking the urgency clause under Section 17(4) is justified. In the writ petition before the High Court, the petitioners have given the details of the landholding, and it has also been stated that the entire holding of Petitioners 2, 5, 7, 9, 10, 11 and 13 has been acquired, and as a result of such acquisition, the petitioners have become landless. 39. The construction of jail is certainly in public interest and for such construction land may be acquired. But such acquisition can be made only by strictly following the mandate of the said Act. In the facts of this case, such acquisition cannot be made by invoking emergency provisions of Section 17. If so advised, the Government can initiate acquisition proceeding by following the provision of Section 5-A of the Act and in accordance with law.” 11. Lastly, learned counsel cites a decision in the case of Garg Woollen Private Limited Vs. State of Uttar Pradesh & Ors.: (2012) 11 SCC 784 in which the proposition laid down in Radhy Shyam’s case (supra) has been reiterated and in para-12 it has been held as follows:- “12. In our view, Propositions (v) to (ix) of the judgment in Radhy Shyam case are squarely attracted in the present case and the acquisition of the appellant’s land is liable to be quashed because the respondents have not produced any material to show that the State Government had formed a bona fide opinion on the issue of invoking of the provisions contained in Sections 17(1) and 17(4) of the Act. The learned counsel for the respondents could not show as to how this case is different from the case of Radhy Shyam in which the acquisition made for planned industrial development of Gautam Budh Nagar was quashed on the ground that the acquisition of land for industrial purpose does not justify invoking of the urgency provisions.” 12. The learned counsel for the respondents could not show as to how this case is different from the case of Radhy Shyam in which the acquisition made for planned industrial development of Gautam Budh Nagar was quashed on the ground that the acquisition of land for industrial purpose does not justify invoking of the urgency provisions.” 12. Learned Additional Advocate General No.3, appearing for the State, on the other hand, sought to justify the action of the respondents by relying upon different averments made in the counter affidavit and the supplementary counter affidavit. It is submitted that the earlier alignment was modified for good reasons on the basis of inspection made by the Departmental Commissioner and Secretary, RCD and the meeting and discussions between the authorities of Government of Bihar, Railways and IRCON on 9.3.2006 as also a report of the structural consultant given on 23.3.2006. It is submitted that the changes in the design was made to make the over bridge straighter instead of zig-zag and obviate the provision of two rotary within a span of 40 meter. It is also submitted that the bridge was started in the year 2004 but due to delay in land acquisition, the cost of the ROB has inflated and the purpose of the structure is also being defeated and, it is not advisable to have any further delay on account of land acquisition, and therefore the provisions of Section 17(4) have been rightly invoked. It is, thus, sought to be emphasized by learned Additional Advocate General that the allegations of the petitioners are not at all justified. 13. The further submission of learned counsel for the State is that three out of five arms of the ROB have already been completed and are operational and only the Mithapur Arm and Punpun Arm have remained to be completed and non-completion of Mithapur arm affects Punpun Arm which has been stopped because of the present litigation as it is not possible in view of the design to take up the work of Punpun arm excluding the work on the Mithapur arm. 14. I have considered the submissions of learned counsels for the parties. The issue before this Court in the present matter is not as to whether the change in the design was justified or was for good reasons. 14. I have considered the submissions of learned counsels for the parties. The issue before this Court in the present matter is not as to whether the change in the design was justified or was for good reasons. While the respondents seek to justify the change on technical grounds but the petitioners, on the other hand, submit that the same has been done to benefit the encroachers over government land which would have been sufficient for the purpose of construction of the Mithapur arm of the flyover. However, the real issue is that in view of the large number of decisions of the Courts, it is apparent that merely because the acquisition is for a public purpose, the same does not justify exercise of power by the Government under Section 17(4). It has been clearly pointed out in Radhy Shyam’s case (supra) after considering a very large number of previous decisions of the Apex Court that the Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take a few years and therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(4) and in any case exclusion of the rule of audi alteram partem embodied in Section 5-A(1) and (2) is not at all warranted in such matters. To the similar effect is the decision in various other cases. 15. It is also emphasized in several decisions that one of the important considerations while making acquisition is as to whether the person concerned would be rendered landless or homeless. A large number of petitioners have made the grievance that they would become landless and homeless as they have the only home which is proposed to be acquired by the impugned notification and they would have no roof over their heads. This coupled with the stand of the petitioners that the respondents have alternative government land available clearly goes to show that on these issues the petitioners should have not only been allowed to file objection under Section 5-A but they ought to have been given serious consideration by the respondents before proceeding further in the matter. 16. This coupled with the stand of the petitioners that the respondents have alternative government land available clearly goes to show that on these issues the petitioners should have not only been allowed to file objection under Section 5-A but they ought to have been given serious consideration by the respondents before proceeding further in the matter. 16. From the various decisions cited above, it is evident that even for delay of smaller extent the Courts have set aside the invocation of urgency clause under Section 17(4) of the Act. In the present matter from the stage of proposal in 1998 or even the stage of approval in 2004 or the final change in design in 2006-07, the matter has dragged on. This Court fails to understand as to how the officials of the State can work at their own sweet pace and take years or even decades to arrive at a decision but when it comes to the final stage of acquisition urgency clause is invoked, as it would have taken only 2-3 months to decide the objections of the limited number of persons involved in the present matter. Such mindset is totally contrary to what has been laid down in a very large number of decisions of the Apex Court. 17. In all fairness, learned Additional Advocate General No. 3 has referred to a decision of the Apex Court in the case of First Land Acquisition Collector & Ors. Vs. Nirodhi Prakash Gangoli & Anr.: 2002(2) PLJR (SC) 276 in which he has sought to emphasize para-5 of the said decision which is in the following terms:- “5. The question of urgency of an acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. The question of urgency of an acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers under Section 17(1) and (4) of the Act, and issues Notification accordingly, the same should not be interfered with by the Court unless the Court comes to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide. Whether in a given situation there existed urgency or not is left to the discretion and decision of the concerned authorities. If an order invoking power under Section 17(4) is assailed, the Courts may enquire whether the appropriate authority had all the relevant materials before it or whether the order has been passed by non-application of mind. Any post Notification delay subsequent to the decision of the State Government dispensing with an enquiry under Section 5(A) by invoking powers under Section 17(1) of the Act would not invalidate the decision itself specially when no mala fides on the part of the Government or its officers are alleged. Opinion of the State Government can be challenged in a Court of law if it could be shown that the State Government never applied its mind to the matter or that action of the State Government is mala fide. Though the satisfaction under Section 17(4) is a subjective one and is not open to challenge before a Court of law, except for the grounds already indicated, but the said satisfaction must be of the Appropriate Government and that the satisfaction must be, as to the existence of an urgency. The conclusion of the Government that there was urgency even though cannot be conclusive but is entitled to great weight, as has been held by this Court in Jage Ram and others Vs. The State of Haryana and Others: AIR 1971 Supreme Court 1033. Even a mere allegation that power was exercised mala fide would not be enough and in support of such allegation specific materials should be placed before the Court. The State of Haryana and Others: AIR 1971 Supreme Court 1033. Even a mere allegation that power was exercised mala fide would not be enough and in support of such allegation specific materials should be placed before the Court. The burden of establishing mala fides is very heavy on the person who alleges it. Bearing in mind the aforesaid principles, if the circumstances of the case in hand are examined it would appear that the premises in question was required for the students of National Medical College, Calcutta and the Notification issued in December 1982 had been quashed by the Court and the subsequent Notification issued on 25.2.1994 also had been quashed by the Court. It is only thereafter the Notification was issued under Sections 4(1) and 17(4) of the Act on 29.11.1994 which came up for consideration before the High Court. Apart from the fact that there had already been considered delay in acquiring the premises in question on account of the intervention by Courts, the premises was badly needed or the occupation of the students of National Medical College, Calcutta. Thus, existence of urgency was writ large on the facts of the case and therefore, said exercise of power in the case in hand, cannot be interfered with by a Court of law on a conclusion that there did not exist any emergency. The conclusion of the Division Bench of Calcutta High Court, therefore, is unsustainable.” 18. It is true that the aforesaid propositions laid down in the aforesaid case are not in accord with what has been laid down in Radhy Shyam’s case (supra) after culling out the summary from a large number of decisions of the Supreme Court. In the said decision, the Apex Court has itself noted a few decisions in which a different stand has been taken. However, it is evident from the decisions cited by learned counsel for the petitioners that the decisions of the Apex Court are not in favour of the invocation of Section 17(4) of the Act; more so when the Government authorities are themselves responsible for the delay in taking the decision in the matter. 19. Thus, in the light of the aforesaid discussions, the writ application is allowed. The impugned notifications dated 11.1.2013 (Annexure-21) under Section 4 and notification dated 14.1.2013 under Section 6 of the Act are quashed in so far as they concern the petitioners. 20. 19. Thus, in the light of the aforesaid discussions, the writ application is allowed. The impugned notifications dated 11.1.2013 (Annexure-21) under Section 4 and notification dated 14.1.2013 under Section 6 of the Act are quashed in so far as they concern the petitioners. 20. It would, however, be open to the respondents to initiate a fresh acquisition proceeding and proceed in accordance with the provisions of the Land Acquisition Act after giving opportunity to the petitioners to present their objections under Section 5A of the Act.