Barin Ghosh, CJ. (Oral).:— Under a lease executed and registered on 17th March, 1984, the Government of Uttar Pradesh came to be in possession of premises No. 72, Rajpur Road, Dehradun. The said premises had a main building, an office and lawns. As will be evidenced from the lease deed, the lawn was attached to the main building and office and was contemplated to be reasonably required for the enjoyment and use of the main building and the office. The total area of the said premises was 9522 Sq. metres. In 1993, the owner of the premises filed an application under Section 21(8) of the U.P. Act No. 13 of 1972 seeking enhancement of rent. The matter ultimately reached the third Additional District Judges Court. The third Additional District Judge, Dehradun, on 18th May, 1999, fixed the rent payable for the said premises. While doing so, he took into account that of the premises, 1616 Sq. metres has been constructed upon and the remaining 7906 Sq. metres is without any construction. The rent was fixed taking into account both these elements; in other words, as was original available while the lease was granted. The third Additional District Judge, Dehradun held that the land attached to the main building and the office is reasonably required for the enjoyment and use of the main building and the office. This adjudication has been affirmed up to the Hon’ble Supreme Court without any interference. 2 2 As will be evidenced from the lease deed, the same was obtained for residence or office or both to be in occupation of the Superintendent of Police, Dehradun. After the creation of the State of Uttarakhand, the Government of Uttarakhand stepped into and since then the premises in question remained in possession of the Senior Superintendent of Police, Dehradun. For occupation by the Senior Superintendent of Police, Dehradun of the said premises, the Government is paying a rent of `86,232/- per month as was fixed by the third Additional District Judge, Dehradun on 18th May, 1999. 3. In the year 2001, the owner of the said premises filed an eviction suit being S.C.C. Suit No.24 of 2001 seeking eviction of the Government from the said premises. The suit was decreed on 24th August, 2002. Revision filed against the said decree was dismissed by this Court on 11th August, 2008. 3. In the year 2001, the owner of the said premises filed an eviction suit being S.C.C. Suit No.24 of 2001 seeking eviction of the Government from the said premises. The suit was decreed on 24th August, 2002. Revision filed against the said decree was dismissed by this Court on 11th August, 2008. Review against the said order dated 11th August, 2008 was also dismissed by this Court on 4th January, 2011. No further step was taken to challenge the eviction decree. Soon thereafter the owner of the premises filed S.C.C. Execution Case No. 1 of 2008 for executing the decree passed in S.C.C. Suit No. 24 of 2001 to the extent the same directed payment of money. In 2010, Execution Case No. 1 of 2010 was filed seeking execution of the decree passed in S.C.C. Suit No. 24 of 2001. On 24th September, 2010, Senior Superintendent of Police initiated an objection under Section 47 of the Code of Civil Procedure to resist eviction. On 18th March, 2011, the State Government also filed an objection under Section 47 of the Code of the Civil Procedure against eviction. The execution application and objections thereto are still pending and have not yet reached finality. In consequence thereof, the eviction decree passed on 24th August, 2002 in S.C.C. Suit No.24 of 2001 has not yet been executed. 3 4. In the meantime, on 7th July, 2003 the State of Uttarakhand issued a notification under Section 4(1) read with Section 17(4) of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) and, accordingly, in connection therewith dispensed with the applicability of Section 5A of the Act. The said notification is as follows:- “No.188/Home-1/Misc./2002 Dated Dehradun, July 07, 2003 NOTIFICATION Under Sub-section (1) of Section 4 of the Land Acquisition Act, 1894 (Act No.1 of 1894) (as applicable in Uttaranchal), the Governor is pleased to notify for general information that the land mentioned in the Schedule given below is needed for a public purpose namely, for the construction of SSP Residence and other Senior Officers’ Residential Quarters in distt. Dehradun. The Governor, being of the opinion that the provisions of Sub-section (1) of Section 17 of the said Act is applicable to the said land as the said land is urgently required for the construction of the SSP Residence and other Senior Officers’ Residential Quarters in distt. Dehradun. Dehradun. The Governor, being of the opinion that the provisions of Sub-section (1) of Section 17 of the said Act is applicable to the said land as the said land is urgently required for the construction of the SSP Residence and other Senior Officers’ Residential Quarters in distt. Dehradun. It is as well necessary to eliminate the delay likely to be caused by an inquiry under Section 5(A) of the said Act. The Governor is further pleased to direct under Sub-section (4) of Section 17 of the said Act that the provisions of Section 5 (A) of the said Act shall not apply. SCHEDULE District Pargana Village Khasra/Plot No. Appro.Area Boundary 1 2 3 4 5 6 Dehradun Kendriya doon Khera Manshighwala 72, Rajpur Road 1458 Sqr. Mtr. including Building East-Property of Smt. Shanti Devi West-Road North-Property of Smt. Shanti Devi South-Property of Smt.Shanti Devi For that purpose required-For construction of SSP Residence and other Senior Officers’ Residential Quarters in district Dehradun. NOTE- A site-plan of the land may be inspected in the office of the Collector, Dehradun. By Order of S.K. Das, Principal Secretary (Home).” 4 5. Challenging the said notification on the ground of, inter alia, colourable exercise of power and mala fide, the owner of the said premises filed a writ petition, which was originally registered as Writ Petition No. 913 (M/B) of 2003 and, later, was renumbered as Writ Petition No. 1075 (M/S) of 2007. On the said writ petition, an order was passed on 27th September, 2003 directing the parties to maintain status quo. While the said writ petition with the status quo order remained in the cold storage of this Court, the owner of the said premises filed Writ Petition No. 509 (M/S) of 2012 to direct the State Government to comply with its obligation under the decree passed in S.C.C. Suit No. 24 of 2001 by handing over vacant possession of the said premises to the owner of the said premises. A learned Single Judge, who dealt with the writ petition on 29th March, 2012, felt that Writ Petition No. 509 (M/S) of 2012 under Article 226 of the Constitution of India is not maintainable, but the same may be cognizable under Article 227 of the Constitution of India. Aggrieved thereby, Special Appeal No. 64 of 2012 has been preferred by the owner of the said premises. Aggrieved thereby, Special Appeal No. 64 of 2012 has been preferred by the owner of the said premises. While considering the said Special Appeal, we felt that it would be appropriate to decide finally Writ Petition No. 1075 (M/S) of 2007 and, accordingly, we directed the said Writ Petition to be clubbed with Special Appeal No. 64 of 2012. No one raised any objection to the said clubbing. While considering the matters, it transpired that the owner of the said premises wrote a letter dated 12th April, 2004 to the Special Land Acquisition Officer in connection with the subject land acquisition proceedings initiated by issuing the aforementioned notification. In that, it was contended that the owner of the premises is willing to allow acquisition of 1458 Sq. metres of land provided the rest 9400 Sq. metres of land is released. The notification also did not go beyond 1458 Sq. metres and in the counter affidavit filed to the writ petition, it was also accepted that the proposed area of acquisition is 1458 Sq. metres. We, accordingly, felt that there is 5 no dispute actually in the instant case. At that stage, the learned counsel appearing on behalf of the owners of the premises drew our attention to a map prepared by MAP – AGE CONSULTANTS at the instance of the State Governmernt, which was submitted by the State Government before the executing court alongwith Section 47 application. This map is also important and, accordingly, we scanned the same and the result is as below :- 6. The learned counsel for the owner of the premises drew our attention also to a supplementary affidavit filed in connection with the writ petition, where she had indicated that she has no objection if 1458 Sq. metres is acquired from one side of the premises in question and from which side the same may be left 6 to the decision of the State Government. We, accordingly, requested the Advocate General of the State to look into the matter. We requested the State Government through the learned Advocate General of the State either to acquire the entire premises, or to acquire the notified area of 1458 Sq. metres from either side of the premises as may be decided by the State Government. This exercise we started on 17th April, 2012. We requested the State Government through the learned Advocate General of the State either to acquire the entire premises, or to acquire the notified area of 1458 Sq. metres from either side of the premises as may be decided by the State Government. This exercise we started on 17th April, 2012. Ultimately, the learned Advocate General reported that the State Government has not taken any decision on either of the said proposals. The learned Advocate General, in that background, rescued himself from the matter. On 14th August, 2013, we, accordingly, directed the matter to be listed today in order to enable the learned Chief Standing Counsel, appearing on behalf of the State, to get ready in the matter. 7. Heard learned counsel for the parties. 8. Because an eviction suit has been decreed, it cannot be contended that steps taken to acquire a part of the premises, being the subject matter of an eviction decree, are mala fide or can be termed as colourable exercise of power. What is required to be seen is, whether steps have been taken to acquire a property for public purposes or not? The fact remains that the whole of the premises was used since 1954 as a residence-cum-office of the Superintendent of Police, Dehradun, later Senior Superintendent of Police, Dehradun, and the premises is still being used for that purpose. The purpose of acquisition, as indicated, is also, amongst others, to construct residential quarter for the Senior Superintendent of Police, Dehradun. It has not come on record that the State has alternative arrangement to provide for, or has in its pool enough space to accommodate the residence of Senior Superintendent of Police, Dehradun. Therefore, it cannot be said that the subject acquisition was initiated in colourable exercise of power only to thwart execution of the eviction decree. It has been 7 urged that the acquisition proceeding is mala fide. Therefore, it cannot be said that the subject acquisition was initiated in colourable exercise of power only to thwart execution of the eviction decree. It has been 7 urged that the acquisition proceeding is mala fide. It has been contended that though the whole premises was in possession of the Senior Superintendent of Police, but only a fraction thereof has been attempted to be secured for construction of the residence of the Senior Superintendent of Police in addition to residence of other senior officers and that too from the middle of the premises for the purpose of denying right of access to the owner of the premises to that part of the premises which has not been proposed to be acquired as the premises proposed to be acquired has the only entrance to the premises in question and, then again, it has been decided to acquire 1458 Sq. metres only out of a total of 9522 Sq. metres and that too from the middle of the premises in question, so as to deliberately reduce the value of the remaining part of the premises in question, which has not been proposed to be acquired. It has been contended that this aspect of the matter is mala fide on facts. In addition thereto, it has been contended that it is also a malice in law. Our attention was drawn to Section 49 of the Act and insertion of sub-section (1A) thereto by the U.P. Amendment, which applies to the State and which is as follows:- “49. In addition thereto, it has been contended that it is also a malice in law. Our attention was drawn to Section 49 of the Act and insertion of sub-section (1A) thereto by the U.P. Amendment, which applies to the State and which is as follows:- “49. Acquisition of part of house or building.-(1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired: Provided that the owner may, at any time before the Collector has made his award under section 11, by notice in writing, withdraw or modify, his expressed desire that the whole of such house, manufactory or building shall be so acquired: Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of his section, the Collector shall refer the determination of such question to the Court and shall not take possession of such land until after the question has been determined. In deciding on such a reference the Court shall have regard to the question whether the land proposed to be 8 taken is reasonably required for the full and unimpaired use of the house, manufactory or building. (1A) for the purposes of sub-section (1), land which is held with and attached to a house and reasonably required for the enjoyment and use of the house shall be deemed to be part of the house. (2) If, in the case of any claim under section 23, sub-section (1), thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the appropriate Government is of opinion that the claim is unreasonable or excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part. (3) In the case last hereinbefore provided for, no fresh declaration or other proceedings under sections 6 to 10, both inclusive, shall be necessary; but the Collector shall without delay furnish a copy of the order of the appropriate Government to the person interested, and shall thereafter proceed to make his award under section 11.” 9. It has been submitted that right from 1954 the land appurtenant or attached to the main house of the premises was accepted as reasonably required for enjoyment and use of the main house and the office situate at the premises and, accordingly, since 18th May, 1999 rent determined for occupation of the main house and the office as well as for occupation of the land appurtenant and attached to the main house and the office is being paid and, as such, the whole premises is the house. It was contended that a look at the notification will clearly indicate that only the main building and the office has been proposed to be acquired alongwith a few square metres of the land and that is barred by Section 49 of the Act. It was contended that this was a malice in law as the notification is in breach of law governing the field. The learned Chief Standing Counsel has submitted that the said letter dated 12th April, 2004 does not indicate that while writing the said letter any proposal was given to shift the land proposed to be acquired from the place indicated in the map scanned above to either side of the premises in question. It was contended that having had shown that willingness though after 9 filing of the writ petition, but the same having been written without prejudice to the rights and contentions in the writ petition, it is now not possible for the owner of the premises to challenge the said acquisition. A look at the said letter dated 12th April, 2004 would show that the said letter contained a conditional offer. The letter made it absolutely clear that willingness of the landlady to accede to the acquisition of 1458 Sq. metres is dependent upon the State handing over possession of the remaining 9400 Sq. metres. The State Government, as of today, has not acceded to the said offer or proposal. The letter made it absolutely clear that willingness of the landlady to accede to the acquisition of 1458 Sq. metres is dependent upon the State handing over possession of the remaining 9400 Sq. metres. The State Government, as of today, has not acceded to the said offer or proposal. Before acceptance of the said proposal by filing a supplementary affidavit in the writ petition and by serving a copy thereof to the State Government, the proposal was altered by holding out that acquisition of 1458 Sq. metres may be had from one side of the premises in question. The State Government has not accepted even the said altered offer/proposal. However, the said altered proposal remains open because the same has not yet been withdrawn. We have, therefore, to proceed on the basis thereof also. 10. We are of the view that it was unjust on the part of the State Government to take steps to acquire a part of the premises comprising of a house and land attached and appurtenant thereto in violation of the provisions contained in Section 49 of the Act, under which it purported to acquire the premises in question. The said action on the part of the State Government is a malice in law and, accordingly, is interferable. In addition thereto, we hold that there was a colourable exercise of power by the State Government while proposing to acquire part of a larger property and that too from the middle thereof and not from a side of the premises only for the purpose of causing pecuniary loss to the owner of the premises. The public purpose disclosed in the notification was construction of the residential quarter of Senior Superintendent of Police, Dehradun and of other senior officers. Therefore, the object was to acquire the land and then to construct 10 thereon. The land proposed to be acquired had already an existing building/house. The public purpose was not to protect and preserve the said house for the purpose of continuing the residence of Senior Superintendent of Police, Dehradun. In other words, the proposal was to acquire the property with the existing main building and the office and thereupon to construct the residence of Senior Superintendent of Police, Dehradun and of other senior officers, which could only be done after demolition of the existing house and the office. In other words, the proposal was to acquire the property with the existing main building and the office and thereupon to construct the residence of Senior Superintendent of Police, Dehradun and of other senior officers, which could only be done after demolition of the existing house and the office. In such a situation, a person of ordinary prudence will only acquire a property from a side thereof and not from the middle of the same. In the instant case, the proposed acquisition was from the middle of the premises and the object thereof, as is crystal clear, was to cause financial loss to the owner of the premises by inducing reduction in the value of the premises to be left with the owner after the acquisition. Therefore, the subject acquisition, in the instant case, was mala fide also on facts also. 11. We, accordingly, interfere and set aside the notification. We, however, permit the State Government to acquire the property in whole, i.e. the whole of premises No.72, Rajpur Road, Dehradun, as was let out to the State of Uttar Pradesh in 1954, or to acquire 1458 Sq. metres or any other area from premises No. 72, Rajpur Road, Dehradun either from the eastern, or the western side of the said premises abating on Rajpur Road. The above exercise must be done within three months from today by publishing a notification under Section 4(1) of the Act. In the event, no such notification is published, it shall be deemed that the State of Uttarakhand is not at all interested to acquire any part of the said premises. 11 12. With the observations and directions as above, the writ petition is disposed of without any order as to costs. _____________