IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14676 of 2007 BISHNU DEO NARAYAN & ANR Versus THE STATE OF BIHAR & ORS ----------- For the petitioners: Mr. Sanjay Kumar Verma, Advocate. For the Respondents: Mr. P.K.Shahi, Advocate General. Mr. Lalit Kishore, A.A.G.III. Mr. Nadim Seraj, Advocate. ------------- P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha, J. Heard the parties. In this writ application the two petitioners, resident of Mohalla- Jamal Road, Patna Town, have made prayer for quashing the notifications dated 23.8.2007 and 24.8.2007 issued under sections 4 and 6 of the Land Acquisition Act ( hereinafter referred to as the Act ) as also for quashing the entire land acquisition proceeding in P.L.A. Case No. 20 of 2006/2007 pertaining to acquisition of land for constructing of an approach road connecting Chiraiya-tanrh over bridge in the city of Patna. Mr. Sanjay Kumar Verma, learned counsel appearing on behalf of the petitioners has basically assailed the entire land acquisition proceeding including the notification under sections 4 and 6 of the Act on the ground that the exercise of emergent power under section 17 of the Act was both illegal as also malafide. It was firstly contended by the learned counsel for the petitioner that impugned notification were bad in because the mandatory requirement of law under sections 4 and 6 of the Act of publication of notification and declaration as per amended provisions of 1984 Act were not - 2 - complied both by the State Government and the Collector of Patna district. In this respect it was submitted that the notification and declaration under sections 4 and 6 of the Act respectively were not published in the daily newspaper. This part of the allegation had also been categorically denied by the respondents in paragraph no. 8 of the counter affidavit with the help of copies of such notification published in the newspaper vide Annexure-A, A/II and A/III respectively. In the reply to the counter affidavit the petitioners did not deny with regard to publication of the declaration under sections 6 in the newspaper, but a plea was taken that the said notification was not published in Urdu daily Pindarr dated 23.8.2007 and to substantiate this aspect a copy of the said Urdu Daily was also enclosed. From perusal of the counter affidavit and Annexure-A, A/I, A/II and A/III it would appear that the notification under section 4 dated 7.8.2007 and the declaration dated 10.8.2007 were published in local daily Hindustand on 23.8.2007, Urdu daily Pindarr dated 23.8.2007 and the declaration under section 4 of the Act also were published in the local daily Hindustan dated 24.8.2007 as well as in the Urdu daily “Quami Tanjim” dated 24.8.2007. This Court, therefore, on the basis of the materials on record would hold that the requirement of publishing the copies of the notification under section 4 of the Act and declaration under section 6 of the Act in the daily newspaper were duly complied and therefore the land acquisition proceeding cannot be said to be vitiated on that ground. - 3 - Counsel for the petitioner has also addressed this Court on the question of invoking power under section 17 of the Act to be in teeth of the Bihar amendment (Act 11 of 1961) in section 17 of the land acquisition Act. It was sought to be canvassed by him that the land of then petitioner being situated in the heart of city of Patna, thus a homestead land could not have been worked as it was neither waste nor arable land which alone could be acquired by invoking the provisions of Section 17 of the Act. Explaining further he had submitted him that there being no mention in the impugned notification and/or declaration issued by the State Government under sections 4 and 6 of the Act as with regard to the nature of the land whether waste or arable, the exercise of power by invoking emergent provisions under section 17 of the Act was vitiated. He further went to extent of submitting that such Bihar Amendment by Act 11 of 1961 having received the assent of the President of India would still prevail over the amendment made by the Parliament by the Act 68 of 1964 and as such even when the concept of waste or arable land in Section 17 of the Act was amended by the Parliament in 1984, the same would not be applicable in the State of Bihar. In that context he had placed reliance on paragraph no. 187 and 188 of the Constitution bench judgment of the Supreme Court in the case of I.T.C. Ltd. Vs. Agriculture Produce Market Committee, Bihar reported in 2002(3)PLJR 110 (S.C) This aspect of the matter can be better appreciated if the provisions of Section-17 in the Act in the year 1960 as is stood prior to the Bihar Amendment in the Act in 1960 (by Act 11 of - 4 - 1961) and the subsequent amendment by the Parliament in the Act in the year 1984 is compared in a tabular form. Act as stood in 1960 Bihar Amendment 1960 (Act 11 of 1961) Act after amendment in 1984 (by Act 68 of 1984) 17. Special powers in cases of urgency – (1) In cases 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 Sec. 9 sub- section (1) take possession of any vest or arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. “17 Special powers in cases of urgency – (1) in cases of urgency whenever the appropriate Government so directs, the Collector, though no such award has been made, on the expiration of fifteen days from the publication of the declaration mentioned in Section 6, or with the consent in wiring of the persons interested at any time after the publication of the notification under Sec. 4 in the village in which the land is situated, take the possession of any waste or arable land needed for public purpose or for a company. Such land shall thereupon vest absolutely in the Government free from all encumbrances. 17. Special powers in cases of urgency – (1) In cases 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 Sec. 9, sub- section (1) take possession of any land needed for a public purpose or for a company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. From the above it would become clear that when in the Act as it stood in the year 1960 the State amendment was made by Act 11 of 1961 the concept of invoking the emergent power for acquisition of land was confined to waste or arable land which - 5 - was also retained in the State amendment with some modification with regard to the manner of taking possession but the whole concept of waste or arable land was done away by the Parliament by Act 68 of 1984. In this context one must to have a look at Article 254 of Constitution of India which reads as follows : - “(1) If any provision of law made by the Legislature of a State is repugnant to any provisions of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void. (2) Where a law made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provisions repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matters, then, the law so made by the Legislature of such State, shall, if it has been reserved for the - 6 - consideration of the President and has received his present, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State” 7. It is also well established that under the proviso to Article 254(2) of the Constitution, the Parliament is competent to amend vary or repeal any law made by the legislature of a State on a subject enumerated in the Concurrent List. In the case of T. Barai Vs. Henry Ah Hoe and another (A.I.R. 1983 S.C. 150 at page 155), it has been held by the Supreme Court that : “the proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State Law even though it has become valid by virtue of the President‟s assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the „same matter‟. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field, and the two can - 7 - not possibly stand together, e.g. where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1). That being so, when Parliament stopped in and enacted the Central Amendment Act, it being a later law made by Parliament “with respect to the same matter” the West Bengal Amendment Act stood impliedly repealed.” There is no dispute that a Land Acquisition Act 1 of 1894 is an existing law in the Concurrent List. As the State amendment Act 11 of 1961 had received the assent of President of India, the provisions of Section 17(1) as amendment by it became applicable in the State of Bihar. However, Parliament did not lose its competence to legislate in respect of this subject in Concurrent List, which is clear from the proviso to sub-Article (2) of Article 254. It is also not in dispute that only after the State amendment 11 of 1961, the Parliament had enacted the Amendment Act 68 of 1984 and admittedly no subsequent State legislation has been made which has received assent of the President. Therefore, according to Article 254 (1) if there is any repugnancy between the amendments made to Section 17 of the Act as previously amended by the State law and now made by the Central law, the law made by the Parliament shall prevail and the law made by the legislature of the State shall, to the extent of repugnancy, be void. - 8 - Dealing with somewhat a similar situation with regard to the Kerala Act, the Supreme Court in the case of Kanthimathy Plantation Pvt. Ltd. Vs. State of Kerala and others (AIR 1990 S.C. 761 at para 3) has held that : “In view of the fact that the Land Acquisition Act, 1894, was extended to the whole of India excepting one State, the Land Acquisition Act of 1894 became applicable to the State of Kerala and in view of the repugnant provision, in terms of Article 254 of the Constitution the Kerala Act stood repealed. There is no provision made in the amending Act to indicate repeal of the State law but application of Article 254 is automatic to situation where it is applicable and by the operation of the Article the State Act stood repealed and the Central Act became applicable.” This aspect of the matter in reference to the provisions of the Act vis-à-vis Andhara Pradesh State Amendment Act 1983 was gone into by the full bench of the Andhara Pradesh High Court in the case of Shaik Kannam Saheb and others Vs. The Dist. Collector, Khammam and others reported in AIR 1991 Andhara Pradesh 43 wherein it was held that the time limit of 40 days for publication of substance in the locality from the date of publication of notification under Section 4(1) in the Gazette as provided in the State amendment by AP State Amendment Act 1983 was no longer valid and had become repugnant to the provisions of Section 4 of the Act after its amendment by the Central Act 68 of 1984. - 9 - Yet again even a division bench of this court had analyzed the whole position with regard to the status of Bihar Amendment Act 11 of 1961 vis-à-vis the amendment made in the Central Act by the Parliament, Act 68 of 1984 in the case of Arunoday Sahkari Grih Nirman Samiti Ltd. Vs. The State of Bihar and others reported in 1991(1) PLJR, 380 and had held that- “………the State Amendment Act 11 of 1961 stands impliedly repealed by the Central Amending Act 68 of 1984. The amendments and insertions made by the Parliament by the Amendment Act 68 of 1984 are substantial even in respect of the provisions which are covered by the State Amending Act and a comparison of the two clearly demonstrates the repugnancy as understood in the Constitutional sense. This being the situation, I hold that the State Amendment Act 11 of 1961 stood impliedly repealed on 24th September, 1984, and since the date the Land Acquisition Act 1894, as amended by the Central Act 68 of 1984 is the law for acquisition of lands in the State of Bihar …………………….” The reliance placed by the counsel for the petitioner on I.T.C. case (supra) is wholly misplaced in as much as that was the case with regard to the validity of the two competing legislation namely Bihar Agriculture Produce Markets Act 1960 and Tobacco Board Act 1975 wherein in the light of the provisions of Article 245 and 246 it was held that the Parliament was not competent to legislate on the subject of goods enumerated for sale of agriculture produce of - 10 - tobacco in market area and for levy and collection of market fee as such authority was only vested in the State legislature. Paragraph 187 and 188 of the judgment in I.T.C. Case (supra) thus cannot be read in isolation in as much as the ratio of that case is that State legislature is competent to enact legislation providing for the levy and collection of the market fee of the sale of tobacco in market area and consequently market Act enacted by the States are valid. As a matter of fact the Apex Court having held the competence of the State legislature, had found that the Central Act, i.e. the Tobacco Board Act, 1975 to the extent they relate to the sale of tobacco in the market areas cannot co-exist and therefore State Act shall prevail over the Central Act. This court would fail to appreciate as to how the ratio of the ITC case (supra) could be made applicable to the facts of the present case in as much as there is no dispute that both Parliament and State legislature are competent to legislate on the subject of Land Acquisition as it is under Concurrent List and the moment there is a Central legislation contrary to the provisions of State legislation on the same subject, the former has to prevail in view of Article 254 of the Constitution of India. Thus this court having given anxious consideration to the aforesaid submissions of the counsel for the petitioner is of the view that in the light of provisions in Article 254 of the Constitution, the Bihar amendment in the Land Acquisition (Bihar amendment Act 1960, Act 11 of 1961 ) has stood impliedly repealed, the day - 11 - Parliament had enacted Act 68 of 1984 making massive and radical changes in the Act including in its Section 17. As a matter of fact the Bihar Amendment in the Act made by Act 11 of 1961 brought at a point of time when there was no repugnancy in the Central Act and the State Act, in as much as, the Central Act as it stood prior to the Bihar amendment 11 of 1961 did provide for exercise of emergent power in respect of any waste or arable land needed for public purpose. Such provision, however, had undergone a radical change by Act 1968 of 1984, wherein, it was provided that in case of urgency the Collector on being directed by the appropriate Government on expiration of 15 days from the publication of notice mentioned in section 9(1) of the Act, could take possession of any „land‟ needed for public purpose. Thus as soon as the Parliament had amended Section 17 of the Act with a contrary intention vide Act 68 of 1984, the Bihar Amendment by Act 11 of 1961 had automatically became repugnant and thus stood impliedly repealed. Another submission on the part of the petitioner that in this very impugned notification the Government had exercised its power under Section 17 of the Act in terms of the Act 1 of 1894 as amended by Bihar Act 1961 would go to show that the Bihar amendment was still in force and therefore the concept of waste or arable land for invoking power was still in vogue in the State of Bihar must be rejected as it is well settled that if there be a source of power available under the statute, a mere wrong use or labeling a wrong section would not vitiate the action. Reference in - 12 - this connection may be made the judgment of Apex Court in the case of Indian Alluminium Company Vs. Kerala State Electricity Board reported in AIR 1975 S.C. 1967 and also in the case of Pearless General Finance and Investment Company Ltd. Vs. Reserve Bank of India reported in AIR 1992 S.C. 1033. In the present case it is not in doubt that Act 1 of 1894 as amended by Bihar Act 11 of 1961 had been radically overhauled and drastically changed by Act 68 of 1984 by the parliament and as such if there was source of power available to the State Government in view of 1984 amendment for acquiring any land under the emergent power under Section 17 of the Act mere use of wrong labeling of power in the impugned notification or declaration as contained in Annexures 3 and 4 would not vitiate the entire land acquisition proceeding. At this stage, it must be noticed that real objection of the petitioners with regard to the impugned notification under section 4 and declaration under section 6 of the Act, as sought to be explained by the counsel for the petitioner is that the proposed land sought to be acquired as a matter of fact had covered certain buildings which was neither waste land nor arable land, and as such exercise of emergent power under section 17 of the Act could not have been exercised for such land. The question therefore would be, if for the construction of approach road connecting over bridge at Chiraiya-tanrh which is out and out for public purpose, is the State government altogether precluded for exercise its emergent power only - 13 - because in the case of the petitioner the land in question is neither waste nor arable ? The answer to this question must be against the petitioner and in favour of the respondents, in as much as, after the order 1984 when the concept waste land or arable land under section 17 of the Act were altogether changed by the parliament by substituting them by „any land‟, it has to be necessarily held that the State Government and the Collector of the Patna district had full powers to acquire any land for the construction of approach road by invoking emergent powers under section 17 of the Act. Counsel for the petitioner then submits that there was no such urgency in existence so as to exercise emergent powers under section 17 of the Act because Chiraiya-tanrh over bridge had been already constructed and the construction of approach road for connecting the over bridge by itself could not have been held to be so urgent in nature so as to exercise power under section 17 of the Act. In the opinion of this Court when this very issue had already been answered by the Division Bench in the order dated 25.8.2004 in C.W.J.C. No. 2401 of 2003 which has also received approval from the Apex Court, it would not permit the petitioner now to contend that though construction of over bridge was of urgent nature its being connected through approach road was not urgent in nature. The whole purpose of the over bridge would have been frustrated if it was not linked and connected with the approach road for making railway over bridge at Chiraiya-tanrh functional. - 14 - This Court can take judicial notice of the perennial problem being faced by the public at large due traffic jam at Chiraiya-tanrh over bridge which is sought to be at least reduced or lessened by making the over bridge functional through construction of the approach road from different sides. In any view of the matter, this Court while exercising the power under Article 226 of the Constitution would not make a comparative evaluation in exercise its power of limited judicial review as with regard to emergent purpose for which land has been acquired. The learned Advocate General seems to be correct by relying on the expression used in the impugned notification dated 7.8.2007 that such acquisition of land was emergent in nature and this part of satisfaction of the State Government as fully expressed in the notification could not be lightly interfered with by the Court as held in judgment of the Apex Court in the case of R. Chitralekha reported in A.I.R. 1964 S.C. 1823. The onus therefore was on the petitioner to dispel this satisfaction of the State Government, but unfortunately there is nothing on the record brought by the petitioner to show that such Government satisfaction was erroneous or was lacking any of the ingredients of an emergent acquisition. It was lastly contended by Mr. Verma that the entire exercise of acquisition of land of the petitioners was malafide. He had in this regard, with reference to the allegations of malafide in paragraph 24 and 25 of the writ application submitted that such acquisition of land was made at the instance of the Bihar State Bridge Construction Corporation who was allotted the work - 15 - of construction of an approach road to the Chiraiya-tanrh over bridge in the city of Patna. Replying to the allegations of malafide both the learned Advocate General appearing on behalf of the Corporation ass also the A.A.G. 3 have with reference to satisfaction of such urgency for acquisition of land as clearly expressed in the impugned notification itself, have explained that when the Chiraiyan Tanrh over bridge was constructed and completed by the government it had also to be made functional for connecting eastern and northern part of the State of Bihar with the different parts of city of Patna