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Madhya Pradesh High Court · body

2017 DIGILAW 661 (MP)

Ram Behari Mishra v. State of M. P.

2017-05-11

VIVEK AGARWAL

body2017
ORDER 1. Petitioners have filed this writ petition seeking a writ of mandamus or any other suitable writ or direction for quashing the proceedings initiated after publication of notification under section 4 of the Land Acquisition Act, 1894 (in short “the Act of 1894), whereby the land contained in Survey No.456 measuring 2 Bigha 4 Biswa at Mahalgaon Tahsil of District Gwalior is sought to be acquired by the Land Acquisition Officer by applying provisions of sections 17(1) and 17(4) of the Act of 1894 invoking emergency clause and seeking exemption from operation of the provisions of section 5A of the Act of 1894 on the ground that present petitioner's land was earlier declared as surplus under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. Thereafter, petitioner had contested the matter upto the Supreme Court and in Civil Suit No.13-A/2000 vide judgment and decree dated 4.1.2003 it was held that respondents/State has illegally encroached on the land of the plaintiffs measuring 3535.76 sq. mt. and made construction on that plot which is illegal and plaintiffs are entitled to restoration of possession of said plot. Against this judgment, first appeal was filed by the State of M.P. before the High Court where High Court vide judgment dated 17.10.2006 directed the appellant/State to handover vacant possession of the suit property to respondent No.1 to 4/petitioners herein within a period of one year and also to pay mesne profits at the rate of Rs.8,000/- per month. It is petitioners' contention that after failing in civil suit to retain the land which was declared as surplus, now the respondents are malafidely trying to acquire the same by invoking the provisions of the Act of 1894. Therefore, in this petition, petitioners have claimed the relief that land acquisition proceedings be quashed being malafide and without jurisdiction and notifications (Annexure P-1) and (Annexure P-16), namely under section 4 read with sections 17(1) and 17(4) of the Act of 1894 and one under section 6 of the Act of 1894 be quashed and respondents be further directed not to proceed with the provisions of the Act of 1894 to render the decree passed by the competent civil Court as infructuous. 2. 2. On the other hand, respondents have filed a return and has submitted that State Government has already deposited 10% amount of the proposed value of the disputed property which is more than five crores and amount of Rs.12 lacs has already been paid to the petitioners towards part payment of mesne profits. It is also submitted that notifications under sections 4, 6 and 17(1) have been issued looking to the public interest and now it is not open to the petitioners to challenge the acquisition proceedings after accepting the amount of mesne profits. It is also submitted that construction over the land in dispute was done by the Public Works Department from the funds of District Organizer, Adim Jati Kalyan Department. Total expenses incurred in raising the construction were to the tune of Rs. One crore and one Ashram for Girls and three boarding halls were constructed and the accommodation in question is being used for the purpose of education of students belonging to backward caste from class 1 to graduation. Thus, it is submitted that the object of the Land Acquisition Act, 1894 is to see public interest and the requirement of such underprivileged children. The basic object of the Act is to ensure public welfare and economic development and while acquiring the private land appropriate compensation is given to the person whose land is being acquired. Therefore, State Government is entitled to claim land for the purpose of welfare of children belonging to backward and most backward communities. Accordingly, it is prayed that writ petition may be dismissed. 3. Notification under section 4 of the Act of 1894 issued by the Collector, Gwalior, on 23rd February, 2010 to acquire 2 Bigha 4 Biswa i.e. 0.460 hectares of land situated at Patwari Halka No.42, Mahalgaon, Gwalior, for the purpose of providing education to girls of scheduled caste and scheduled tribe category so also to provide hostel facility to them. In this very notification, it is clearly mentioned that provisions of section 5A of the Act of 1894 will not be applicable because in its opinion it has applied provisions of sections 17(1) and 17(4) of the Act of 1894 to the said proceedings. In this very notification, it is clearly mentioned that provisions of section 5A of the Act of 1894 will not be applicable because in its opinion it has applied provisions of sections 17(1) and 17(4) of the Act of 1894 to the said proceedings. Thereafter, notification under section 6 of the Act of 1894 was issued on 8th April, 2010, but suppressing this fact, petitioners had obtained interim relief from this Court vide order dated 21.7.2010 wherein it is mentioned that notification under section 4(1) of the Act of 1894 was published on 23.4.2010, but no notification has been published under section 6 of the Act. Therefore, the respondents were restrained from publishing a notification under section 6 of the Act of 1894. This order is contrary to the documents on record inasmuch as notification under section 4 dated 23rd February, 2010 was filed by the petitioner as (Annexure P-1). Thereafter, notification under section 6 was issued on 8th April, 2010 and this document was not filed by the petitioner till 30.8.2010 when it was filed along with an application for incorporating additional facts based on subsequent events by amendment. 4. Section 17 of the Act of 1894 bestows special power in case of urgency. Section 17(1) provides that in case of urgency, whenever the appropriate Government, so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1) take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. Section 17(4) provides that in case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the date of the publication of the notification under section 4, sub-section (1). M.P. Amendment in section 17 sub-section( 1) has a proviso which reads as under :- “Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as many be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.” In section 17, the following sub-section shall be deemed to be added, namely :- “(4) when proceedings have been taken under this section for the acquisition of any land, and any person sustains damage in consequence of being suddenly dispossessed of such land, compensation shall be paid to such person for such dispossession.” 5. In this backdrop, validity of acquisition proceedings needs to be examined inasmuch as it is petitioners' case that acquisition proceedings have been undertaken to defeat the decree of civil suit and the act of the respondents is malafide to nullify the decree passed in Civil Suit No.20-A/1995. It is also submitted that provisions of sections 17(1) and 17(4) of the Act of 1894 cannot be made applicable and the notification, (Annexure P-1), published by the respondents is null and void. It is also submitted by the learned counsel for the petitioner that provisions of section 5A could not be exempted unless there exists any urgency ascontemplated under section 17(1). 6. In this backdrop, it is important to examine the provisions contained in section 17(1) of the Act of 1894 which provides for invocation of special powers in case of urgency. The words used in section 17(1) are in case of urgency, whenever the appropriate Government, so directs, the Collector, though no such award has been made, may, take possession of any land needed for a public purpose. Thus, the perception of urgency is to be by an appropriate Government and it should be for a public purpose. In absence of there being a public purpose, the special powers could not have been invoked by the authorities. Thus, the perception of urgency is to be by an appropriate Government and it should be for a public purpose. In absence of there being a public purpose, the special powers could not have been invoked by the authorities. In the present case, the respondents have justified the public purpose i.e. for education and hostel facility for the most suppressed section of the society i.e. the girls belonging to the scheduled caste and scheduled tribe category, therefore, it is not the case of the petitioners that public purpose as envisaged under section 17(1) of the Act of 1894 for the purpose of invocation of special powers did not exist. It is also not the case of the petitioner that perception in regard to urgency can be a subject matter of challenge before any Court of law inasmuch as in the opinion of this Court, urgency is a subjective matter. As far as the allegation of the petitioners is concerned that land has been acquired so to defeat the decree of the trial Court which has been affirmed upto the Supreme Court, it will be appropriate to refer the preamble of the Act of 1894 which provides that it is an Act to amend the law for the acquisition of land for public purposes and for Companies. The Statement of Objects and Reasons provides that before passing of that Act, the valuation of the lands, which it was found necessary to take up for the execution of public works, was entirely in the hands of arbitrators, from whose decisions there was no appeal. This system led to a lamentable waste of the public money, both because the arbitrators were incompetent, and sometimes, it is to be feared, corrupt and also because the law, as it then stood, laid down no instructions for their guidance in the performance of their duties. This defect was sought to be rectified and reference has been provided to the District Judge. From such kind of objects and reasons in enacting the Act of 1894 and also the fact that provisions of Urban Land (Ceiling and Regulation) Act, 1976 and Land Acquisition Act will not operate simultaneously as same land cannot be subject matter of acquisition proceedings under both the Acts, there does not appear any bar from acquiring the land which has been freed from the proceedings under Urban Land (Ceiling and Regulation) Act, 1976. In absence of there being any express bar from acquiring a land under the provisions of Act of 1894 which has been freed from the provisions of Urban Land (Ceiling and Regulation) Act, 1976, the contention of the petitioners that Land Acquisition proceedings have been undertaken to defeat the decree of the Court is not maintainable on the face of it. 7. In fact, the civil Court decided the title of the property and once title of the property has been decided, the person in whose favour title has been decided shall be entitled to claim compensation in terms of the Land Acquisition proceedings, therefore, it cannot be said that determination of title by the civil Court will act as a bar in land acquisition proceedings. As far as petitioners' contention that there was no requirement for invoking the provisions of section 17(1) is concerned, as has been observed above it is for the appropriate Government to decide the aspect of urgency and this Court can only see whether the purpose for which provisions of section 17(1) of the Act were invoked was public purpose or not. Since there is no material on record to dispute that the purpose for which provisions of section 17(1) were invoked were public purpose, the argument of learned counsel for the petitioners in regard to invocation of authority under section 17(1) is not maintainable. 8. Next argument of the learned counsel for the petitioners is that by invoking the provisions of section 17(4) of the Act of 1894 hearing of objections under section 5A of the Act of 1894 has been dispensed with. It is seen that provisions of section 5A deals with hearing of objections and it provides that any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. But dispensing of section 5A is made where there is urgency and provisions of section 17(1) have been applied. But dispensing of section 5A is made where there is urgency and provisions of section 17(1) have been applied. In the present case, before grant of interim relief, notification under section 6 was published and after publication of notification under section 6, stage of section 5A could not be questioned by the petitioners as has been sought to be done by the petitioners by way of amendment in the writ petition which was incorporated vide order dated 20.9.2010 inasmuch as after publication of notification under section 6, stage of objections under section 5A was over and now only stage on which petitioner could have raised objection is the stage under section 9 of the Act of 1894 where the Collector is required to notice to persons interested. Since stage of section 5A was over, petitioners after publication of notification under section 6 could not have raised the issue of denial of opportunity under section 5A. Therefore, the pleading of the petitioners incorporated vide amendment that provisions of section 5A could not be exempted is also of no value. As has been held above, the course which is open to the petitioners to avail the remedy is provided under section 9 and thereafter, when the Collector passes an award, shall have a remedy under section 19 seeking reference to the appropriate Government. 9. In view of the judgment of the Supreme Court in the case of New Okhla Industrial Development Authority v. Harkishan (Dead) through L.Rs. and others, as reported in [(2017)3 SCC 388], since emergency clause has been invoked and public purpose is involved, it is not open to the petitioners to challenge the acquisition proceedings saying that objections under section 5A could not have been dispensed with. When the scheme of the Act itself provides for dispensing with of objections under section 5A upon invocation of emergency clause under section 17(1) of the Act of 1894, then it is not open to the petitioners to raise such pleas and the only question which can be raised by them is as to the quantum of compensation to which they are entitled in terms of the scheme of the Act of 1894. 10. 10. In view of such provisions of the Act of 1894, this Court is of the opinion that petitioners have failed to put up any material to dispute the public purpose as has been mentioned by the respondents in the notification under section 4 invoking the provisions of sections 17(1) and 17(4) dispensing with requirement of section 5A. As a result the reliefs claimed by the petitioners cannot be granted. Petition fails and is dismissed. Land acquisition proceedings undertaken with publication of notification dated 23rd February, 2010 can continue.