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2013 DIGILAW 1308 (PAT)

Anarash Rai v. Union of India

2013-11-19

RAMESH KUMAR DATTA

body2013
ORDER Heard learned counsel for the petitioners and learned counsels for the respondent-State and for Union of India. 2. The petitioners seek quashing, in all the three writ applications, of the notification dated 9.4.2013 under Section 4 of the Land Acquisition Act by which the provisions of Section 17(4) of the said Act have been invoked providing that Section 5-A of the Act shall not apply to the said acquisition and also the consequential notifications under Sections 6 and 9 of the Act. 3. The facts of the case need not be recorded in detail. Suffice it to say that by letter no. 14/DLA, Saran (ITBP)-09/2013 (letter No. 1058 dated 9.4.2013) published in local Hindi daily newspaper, proceedings for acquisition were initiated and certain lands in village Kotheyan, P.S. Jalalpur, Thana No. 242, Pargana- Wal, District-Saran, Chapra were sought to be acquired for the construction of a Camp for Indo-Tibetan Border Police Force, an armed force of the Union. In the said notification it was further mentioned that provisions of Section 17(4) of the Act was applied to the acquisition and, accordingly, the provision of Section 5-A shall not be applied with respect to the lands sought to be acquired. 4. Learned counsel for the petitioners submits that there is no justification for issuing a notification taking away the right of the petitioners to object the acquisition under Section 5-A of the Act and the respondents are unable to show such an emergency for the purpose of legally invoking the provisions of Section 17(4) of the Act. It is submitted that proposal for such acquisition had been initiated in early 2012 and the petitioners upon learning about the same had filed the representations before the District Magistrate-cum-Collector, Saran on 16.8.2012 with a request not to acquire the fertile lands of the village and instead to consider acquisition of the chunk of land situated west to Chhapra-Baniapur Road which is barren land situated at a considerable distance from the village, a copy of the application had been sent to the Home Minister, Government of India, New Delhi as well as the Chief Minister of Bihar by registered post on 13.8.2012 itself followed by further representation on 10.10.2012, 8.11.2012, 14.12.2012 and 2.1.2013. Thereafter the authorities have taken substantial time and ultimately came out with the notification in April, 2013 but excluding the valuable legal rights of the petitioners to object under Section 5-A of the Act which is totally unjustified. 5. In support of his stand learned counsel for the petitioners relies upon a decision of the Apex Court in the case of Radhy Shyam (Dead) through Lrs. & Ors. Vs. State of Uttar Pradesh and Ors.: (2011) 5 SCC 553 , in para-77 of which the following propositions have been laid down:– “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 Vs. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal Chowdhuri Vs. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar Vs. State of Gujarat (1995) Supp. (1) SCC 596. (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 Vs. State of Haryana (2003) 5 SCC 622 ; State of Maharashtra Vs. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan Vs. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011. (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 land owner 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 land owner 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 few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority 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 concerned authorities 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 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). 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 Section 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 Section 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 Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.” 6. Learned counsels for the respondents, on the other hand, sought to justify the acquisition submitting that the lands are being acquired since the issue of naxalism was under consideration by the Home Ministry, Government of India on the bordering area of Nepal and Sikkim and in order to have check over the naxal activities going around these areas, affecting the public order of the locality, it was decided by the Government of India to establish a center of Indo-Tibetan Border Police Force in the State of Bihar from where the activities of Naxalites could be checked out. Upon due consideration it was decided to acquire the lands at village Kotheyan within Saran district for which requisition was sent by the competent authority on 30.11.2012 and it was only on account of the urgency of the matter that the provisions of Section 17(4) have been invoked doing away with the requirement of Section 5-A of the Act with respect to the acquisition. It is also submitted that after deciding to acquire the lands, the DLAO, Chhapra and C.O., Jallalpur visited the site and gave information to the villagers concerned. The villagers in general welcomed the proposal and expressed their happiness about the acquisition of the land and only some people like the petitioners are protesting the acquisition. It is also submitted that after deciding to acquire the lands, the DLAO, Chhapra and C.O., Jallalpur visited the site and gave information to the villagers concerned. The villagers in general welcomed the proposal and expressed their happiness about the acquisition of the land and only some people like the petitioners are protesting the acquisition. It is submitted that the in order to have check over the naxal activities going on in the area, there is urgency for such acquisition and accordingly, for the acquisition of land the provision of Section 17(4) of the Act has been invoked on urgency basis for such acquisition. 7. So far as the law on the point is concerned, the same has been clearly stated in various propositions laid down in Radhy Shyam’s case (supra) wherein the Apex Court has laid down that even though the public purpose may be laudable, it 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, such provisions can be invoked and requirement of hearing the landowner or other interested persons can be dispensed with. It has also been emphasized in the said decision that before excluding the application of Section 5-A, the authorities concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will frustrate the public purpose for which land is proposed to be acquired. 8. From a consideration of the various counter affidavits filed by the respondent- State as also the Union, I am unable to find any material which would show that the urgency was of such a nature that a delay of even a few weeks or a few months could not be brooked and would have frustrated the public purpose of fighting naxal activities for which the land is required. 9. The problem of naxalism in the State or in the Indo-Nepal bordering area is not something which has crept up in near past nor, considering the progress made in fighting the menace by the Central and State authorities, can it be said that the same is likely to go away within a short period of time. 9. The problem of naxalism in the State or in the Indo-Nepal bordering area is not something which has crept up in near past nor, considering the progress made in fighting the menace by the Central and State authorities, can it be said that the same is likely to go away within a short period of time. The decision to establish ITBP at the place in question may itself be necessary in the interest of public order but the same alone cannot justify the invoking of urgency clauses, when it would have only taken a few weeks or months to dispose of the claim, considering the stand of the respondents themselves that most of the villagers are happy and only a few persons like the petitioners are opposing the same, which all the more goes against the decision to deprive these few petitioners of their statutory right under Section 5-A of the Act. 10. Thus, on a consideration of the facts and circumstances of the case, and the established propositions of law, it is evident that the impugned notification dated 9.4.2013 cannot be allowed to stand. It is, accordingly, quashed in so far as it concerns these petitioners. All subsequent and consequential notifications are also, accordingly, quashed. 11. It shall, however, be open to the respondents to proceed afresh in the matter without invoking the provisions of Section 17(4) and doing away with the requirement of Section 5-A of the Act. 12. The writ application is, accordingly, allowed in terms of the aforesaid directions and observations.