Letters Patent Appeal No.746 of 2008 --------- Against the order and judgement dated 27-8-2008 passed by learned Single Judge in CWJC no. 14676 of 2007 --------- 1. BISHNU DEO NARAYAN 2. Ramesh Narayan Both sons of late Raghu Nath Narayan, resident of Mohulla- Jamal Road, Station road corner, PS Kotwali, P.O. GPO, District Patna- -----------(Appellants) Versus 1. The State of Bihar, through the Chief Secretary, Bihar 2. The Commissioner-cum-Secretary, Revenue and Land Reforms Department, Government of Bihar, Old Secretariat, Patna 3. The Director Land Acquisition, Government of Bihar, Patna 4. The Collector, Patna 5. The District Land Acquisition Officer, Patna 6. The Engineer-in-Chief cum additional Commissioner cum Special Secretary, Road Construction Department, Public Work Department, Government of Bihar, Patna. 7. The Managing Director, Bihar State Bridge Construction Corporation Limited, Patna 8. Senior Project Engineer Works Division NO.1, Bihar State Bridge Construction Corporation Limited Patna------------------ (Respondents) ----------- For the appellants: Mr. Sanjay Kumar Verma, Advocate For the Respondent nos. 1 to 6: Mr. Lalit Kishore, AAG 3 Mr. Piyush Lal, JC to AAG 3 For the respondent nos. 7 and 8 Mr. P. K. Shahi, Advocate General, Bihar Md. Nadim Seraj, Advocate Mr. Vikas Kumar, Advocate ---------------- P R E S E N T HON’BLE THE ACTING CHIEF JUSTICE THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA -------------- Shiva Kirti Singh ACJ, The appellants, as two co-owners, preferred CWJC no. 14676/2007 for quashing of notifications dated 23-8-2007 and 24-8-2007 issued under sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter 2 referred to as the Act) and also for quashing the entire land acquisition proceeding in P.L.A. case No. 20/2006/2007 relating to acquisition of land in Mohalla Jamal Road in Patna town for construction of an approach road to connect flow of traffic to a recently constructed over bridge in the city of Patna known as Chiraiya-tanrh over bridge. 2. The contention advanced on behalf of the appellants related mainly to alleged failure of the authorities to publish the notification and declaration under sections 4 and 6 of the Act in accordance with amended provisions of 1984 Act and some other contentions including applicability of provisions for emergency acquisition u/s 17 of the Act, none of which found favour with the writ court which dismissed the writ petition by a detailed judgement and order dated 27-8-2008 which is challenged through the present appeal under clause X of letters patent of this court. 3. So far as the requirements of publication of notification and declaration under sections 4 and 6 of the Act are concerned, the issue was one of facts and the writ 3 court considered the pleadings and the copies of notifications published in the newspapers, which could not be denied by the writ petitioners, and rightly held that the requirement of publishing the copies of the notification u/s 4 of the Act and declaration u/s 6 of the Act in the daily newspapers was duly complied and on that account the land acquisition proceeding was not at all vitiated. This finding of the writ court has not been challenged before us in course of arguments at the stage of hearing. We do not find any ground to doubt the correctness of finding given by the writ court on this issue. 4. The next and main contention advanced on behalf of the appellants is against invoking the provisions u/s 17 of the Act for the purpose of acquiring 0.08403 acres of land including land of the appellants along with some buildings, on the ground that section 17 as appearing in the Land Acquisition (Bihar Amendment) Act, 1960 (Act 11 of 1961) provides for special powers of acquisition in cases of urgency only with regard to “ any waste or arable land needed for 4 public purpose or for a company”. It is undisputed case of the appellants that their land is within the city of Patna and cannot be described as a waste or arable land. 5. On the other hand the case of the respondents including the State of Bihar is that section 17 of the Land Acquisition Act, 1894, after the Bihar amendment Act of 1960, was again amended by the Parliament through amendment act 68 of 1984 and that amendment in respect of subject of land acquisition which is in Concurrent List was within the power of legislation available to the Parliament and has superseding effect under Article 254 (2) of the Constitution of India and to the extent of repugnancy between the Bihar amendment Act of 1960 and Amendment Act 1 of 1894 by the Parliament, the law enacted by the Parliament shall prevail over the State law and to the extent of repugnancy or contradiction the Bihar amendment of 1960 stood impliedly repealed. 6. Under the Central amendment Act 68 of 1984 the scope of special powers in cases of repugnancy was expanded by providing that even where no award has 5 been made, the appropriate State Government in case of urgency may, on expiry of 15 days from the publication of the notice mentioned in Section 9 (1), take possession of “any land” for a public purpose. 7. Learned counsel for the appellants tried to persuade this court by comparing sub section 1 of section 17 in the amendment Act 68 of 1984 with that in Bihar Amendment Act of 1960, that there was no repugnancy between the two provisions and, therefore, the authority concerned within the State of Bihar was required to act only as per provisions of section 17 contained in Bihar amendment Act 11 of 1961.It could not have availed of the expanded powers as provided by section 17 of the amendment Act 68 of 1984. He placed reliance upon judgement of the Supreme Court in the case of I.T.C. Ltd. Vs. A.P.M.C, 2002 (3) PLJR (SC) 110 in support of a proposition which is self evident from Article 254 (2) of the Constitution of India that a if law made by the legislature of a State in respect of a matter enumerated in the Concurrent List contains any provision repugnant to the provisions of earlier law made 6 by the parliament then the law so made by the State legislature, if it has been reserved for the consideration of the President and has received his assent, shall prevail in the State. This proposition of law has not been contested by the respondents and rightly so because here the fact position is just reverse and it is the Parliament which has enacted subsequent amendment Act of 1984 and the issue is whether this amendment act in case of repugnancy with the earlier State amendment would prevail or not. 8. Learned counsel for the appellant has also placed reliance upon a Division Bench judgement of this court in the case of Prem Lata Devi Vs. the State of Bihar, 1998 (3) PLJR 270. In that case a plea was raised that section 5 A (2) on account of amendments by Central Act 13 of 1967 and later amendment Act 68 of 1984 had become repugnant to the provisions of section 5A (2) substituted by the Bihar amendment of 1960. This plea was negated by the Division Bench on the basis of a Full Bench Judgement of this court in the case of T.S. Grih Nirman Samiti Ltd. VS. the State of Bihar, 1992 (1) 7 PLJR 264. The relevant portion of the Full Bench Judgement was extracted and it shows that by comparing the relevant provisions the Full Bench came to a conclusion that there was no repugnancy between the relevant provisions enacted by the Central amendment and that in the Bihar amendment of 1961 and hence, the notification by the Collector in district gazette was held to be not in conflict with the provisions in the central Act notwithstanding the amendment of 1984. The provisions in the present case are different and the writ court has considered the relevant provisions in the light of several relevant judgements such as- (1) AIR 1983 SC 150 ( T. Barai vs Henry Ah Hoe and another), (2) AIR 1990 SC 761 (Kanthimathy Plantation Private Limited Vs. State of Kerala & Ors), (3) AIR 1991 Andhra Pradesh 43 (Full Bench) (Shaik Kannam Sahem and others Vs. the District Collector, Khammam and others) and (4) 1991 (1) PLJR 380 (Arunoday Sahkari Grih Nirman Samiti Ltd. Vs. the State of Bihar and others). 9. As a result of ratio emerging from the aforesaid precedents the writ court has rightly held that in the light 8 of provisions of Article 254 of the Constitution of India, once in a matter under Concurrent List there is a later Central legislation contrary to the provisions of the State legislation on the same subject, the Central legislation shall prevail. 10. So far as issue of repugnancy or contradiction is concerned, from a simple perusal of section 17 (1) as appearing in the Bihar amendment Act, 1960 (11 of 1961) and section 17 (1) as enacted by the parliament through amendment Act 68 of 1984, it is absolutely clear that the central amendment which is later permits taking possession of any land needed for a public purpose, on fulfillment of other conditions, under special powers in cases of urgency whereas under the State amendment Act 11 of 1961 such power could be exercised in accordance with law only in relation to waste or arable land needed for public purpose or a company. The repugnancy or contradiction is apparent and in that view of the matter the learned writ court has rightly held that the authorities concerned had the special powers for cases of urgency as contained in section 17 (1) 9 substituted by Act 68 of 1984 by the Parliament of India. On this issue also the submission advanced on behalf of the appellants are found to be without substance. 11. Learned counsel for appellants has reiterated the submissions advanced before the learned writ court that in the impugned notification the government had labeled its powers u/s 17 of the Act in terms of Act 1 of 1894 as amended by Bihar amendment Act 1960 (11 of 1961) and, therefore, the power of the government must be exercised only in terms of those provisions and the authorities could not have utilized the power flowing from Central amendment Act 68 of 1984. The contention was rightly rejected by the writ court on the settled principle that if source of power is available under the statute, a wrong labeling could not render the action without power or jurisdiction. For this purpose reliance was rightly placed upon judgement of the Supreme court in the case of Indian Aluminum Company vs. Kerala State Electricity Board reported in AIR 1975 SC 1967 and also in the case of Pearless General Finance and 10 Investment Company Ltd. vs. Reserve Bank of India, reported in AIR 1992 SC 1033. 12. The next issue raised by the learned counsel for the appellants was that in fact there was no urgency for exercise of power u/s 17 of the Act because over bridge had already been completed and the construction of approach road could not have been treated as an urgent necessity. The writ court has considered this aspect also in proper perspective and has rightly held that the whole purpose of over bridge would stand frustrated if it could not be linked and connected with approach road so as to make it functional and operational. The necessity of completing and making the over bridge functional with utmost expedition was expressed by a Division Bench of this court in order dated 25-8-2004 passed in CWJC no. 2401/2003 which has received approval of the Apex Court also. It has rightly been held by the writ court that the onus was upon the writ petitioners to dispel the satisfaction of the State Government regarding urgency and there was no material on the record to show such satisfaction of the government to be erroneous. The 11 strenuous arguments advanced on behalf of the appellants that the action of the Bridge Construction Corporation, the agency assigned with the task of constructing the approach road, in pointing out the urgency was without jurisdiction and malafide, deserves to be noticed only for rejection. The writ court has extracted relevant pleadings and has rightly held that such allegation of malafide against the Corporation and its authorities, who have acted in official capacity in fair manner, has been made out in desperation and it appears “to be the last refuge of a losing litigant” an expression used by Justice Krishna Iyer in the judgement of the Apex Court reported in AIR 1977 SC 448 (Gulam Mustafa Vs. State of Gujrat). 13. Before us, for the first time an attempt was made to raise a new issue of fact that power to take possession on account of urgency has been exercised in this case prior to notice u/s 9 of the Act. On such allegation made verbally in course of arguments, it was submitted that action u/s 17 of the Act was bad in law. In reply learned Advocate General appearing in this case on 12 behalf of Bridge Construction Corporation has submitted at the Bar that the records disclose that notice u/s 9 was given on 15-11-07 and thereafter possession was taken on 19-12-07 and handed over to the executing agency, Bridge Construction Corporation, on 20-12-07. In view of such facts, we find no merit in this new issue of fact which was attempted to be raised for the first time during hearing of this appeal. 14. In view of aforesaid discussions and findings, we find no merit in this appeal. It is, accordingly, dismissed but without costs. Shyam Kishore Sharma, J. - I agree. Patna High Court The 6th November, 2009 AFR/BKS (Shiva Kirti Singh, ACJ.) (Shyam Kishore Sharma, J.)