IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9853 of 2008 1. RAM BAHADUR SINGH, SON OF LATE MAHANAND SINGH 2. UMESH SINGH 3. RAMESH SINGH SONS OF HAKIM SINGH 4. VALMIKI PRASAD SINGH, SON OF LATE DEEP NARAIN SINGH RESIDENTS OF VILLAGE HARPUR KALA, P.S. MAJORGANJ, DISTRICT- SITAMARHI ----- PETITONERS Versus 1. THE STATE OF BIHAR 2. COLLECTOR, SITAMARHI 3. ADDITIONAL COLLECTOR, SITAMARHI 4. ANCHAL ADHIKARI, MAJORGANJ, DISTRICT- SITAMARHI 5. SPECIAL LAND ACQUISITION OFFICER, GANDAK PROJECT, MUZAFFARPUR ------ RESPONDENTS With CWJC No.14549 of 2008 MANOJ KUMAR, SON OF SRI BINDESHWARI RAI, RESIDENT OF VILLAGE- PARSA, P.S.- MAJORGANJ, DISTRICT- SITAMARHI ------ PETITIONER Versus 1. THE STATE OF BIHAR 2. COLLECTOR, SITAMARHI 3. ADDITIONAL COLLECTOR, SITAMARHI 4. ANCHAL ADHIKARI, MAJORGANJ, DISTRICT- SITAMARHI 5. SPECIAL LAND ACQUISITION OFFICER, GANDAK PROJECT, MUZAFFARPUR. With CWJC No.14640 of 2008 1. UMAKANT RAI 2. ARJUN KUMAR RAI SONS OF GANNI RAI RESIDENTS OF VILLAGE- PARSA, P.S.- MAJORGANJ, DISTRICT- SITAMARHI Versus 1. THE STATE OF BIHAR 2. COLLECTOR, SITAMARHI 3. ADDITIONAL COLLECTOR, SITAMARHI 4. ANCHAL ADHIKARI, MAJORGANJ, DISTRICT- SITAMARHI 5. SPECIAL LAND ACQUISITION OFFICER, GANDAK PROJECT, MUZAFFARPUR ------ RESPONDENTS ----------- 6 7.8.2009 Petitioners have filed this writ application praying therein that appropriate direction should be given to the Land Acquisition Officer in Case No. 8 of 1988-89 to dispose of the objections filed on behalf of the petitioners that the lands which is sought to be 2 acquired is no longer required for the purpose of rehabilitation of persons displaced by the Bagmati river as the Bagmati river has changed its course. The Land Acquisition Proceeding was initiated sometime in the year 1980. The proceeding was dropped on 6.4.1986 vide annexure-2 on the ground that even after the notification under Section 4(1) of the Land Acquisition Act the State Government had not released the compensation amount and as such the proceeding had lapsed. The Land Acquisition Proceeding thereafter was re-initiated in the year 1988-89. The petitioners filed objection under Section 5A claiming that the lands belonging to him was Dhanhar lands and that the State Government should acquire lands which stood on a higher plinth. The matter was referred to the Land Acquisition Officer for consideration of the objection application. On 4.3.1989 it appears that the application under Section 5A filed on behalf of the petitioners was placed before the Land Acquisition Officer and the date of hearing was fixed on 20.3.1989. On 20.3.1989, 24.4.1989 and 3 15.5.1989 petitioners were not present personally nor were they represented by any counsel before Land Acquisition Officer to press the application. The final order rejecting the application was passed on 14.6.1989 wherein it is stated that the petitioners have not appeared and as such the objection is dismissed. Learned counsel for the petitioners submits that after the application was placed before the Land Acquisition Officer, the petitioners ought to have been noticed so that they could appear before the Land Acquisition Officer to point out the objections raised by them. Learned counsel for the State submits on the other hand that the petitioners have moved this Court for redressal of their grievances after a lapse of 20 years and as such this Court should not entertain their application. The matter however, does not end here. The order sheet of the Land Acquisition Proceedings has been annexed to this writ application indicates that no action could be taken by the Collector with respect to the 4 acquisition of lands because the State Government had not released the money and, therefore, it was ordered that this matter may be placed only when the award amount is received in the office of the Collector. The order dated 17.8.2007 indicates that the Executive Engineer had written a letter numbered as 1401 dated 26.7.2008 that the award amount has been received and order was passed to issue notices to the land holders under Section 12(2) of the Land Acquisition Act. On 11.9.2007 accordingly the land holders and these petitioners appeared before the Land Acquisition Officer and filed their objection under Section 12(2). The petitioners filed their objection stating that their lands should be exempted from the land acquisition proceeding. The application of the petitioners and others like him is still pending before the Land Acquisition Officer and no order has been passed by the Land Acquisition Officer regarding the objections. The first question that has been framed is whether these writ petitions are barred by delay and laches? In the facts of these cases it appears that the proceeding was first initiated 5 in 1980 which was dropped and finally the notification was issued under section 4(1) of the Act in the year 1986. The objection was filed within time which was disposed of by order, dated 4.3.1989. Since the year 2007 the State Government did not take any action in this proceeding and in fact the award amount was received by the Collector in 2007. In the circumstances the objection of the State counsel that these petitioners have come to after a delay of several years cannot be accepted as in fact the objection raised by the petitioners was within time and no steps were taken in the land acquisition proceeding. The file was merely lying in the office of the Collector/Land Acquisition Officer and as such in the facts of this case the objection the writ petitions have been filed after a delay does not find favour with this court as the question of delay and latches depends on the facts of the case. The second issue is whether the petitioners had been given an opportunity to be heard, it is patently clear that after filing the objections before the Collector the matter was sent to the Land Acquisition Officer for 6 disposal. The Land Acquisition Officer ought to have noticed the petitioners on receipt of the objection petition under section 5A. The orders, dated 23.9.1988 and onwards in fact shows that no such notice was issued to the petitioners and as such they were deprived of the valuable right of being heard as provided under section 5A of the Act. Section 5A provides that the Collector should dispose of the objection filed by the land holder after making an enquiry and if he finds fit should pass an order on the objection petition after giving the objector an opportunity of being heard. This section embodies a very just and solemn principle that a person who is being deprived of his property under this Act should be given a reasonable opportunity of persuading the authorities concerned that the acquisition is not required to be made or file any other objection with respect to the acquisition of his land. It has been held time and again that the opportunity of being heard at the stage of section 5A of the Act is a mandatory provision and as such it cannot be treated, in the manner in which it has been treated in the present case by giving a 7 complete go-by to the principles of natural justice. As such this court finds that the entire proceeding as far as it concerns the petitioners would stand vitiated. Reference may be made to the case of Munshi Singh and Ors. Vs. Union of India reported in (1973) 2 S.C.C. 337 and Nandeshwar Prasad & Ors. vs. U.P. Government& Ors. reported in A.I.R. 1964 S.C.1217. On behalf of the petitioners it has been argued before this court that the Bagmati river has changed its course and in fact the lands are not required for the purpose of rehabilitation of persons who were affected by the insurgence of Bagmati river. It is, therefore, stated that the entire purpose for which the proceeding was initiated some twenty years back has no meaning in the present context and, thus, the State Government should consider releasing the lands which were sought to be acquired by Land Acquisition Proceeding Case No. 8/1988-89. All facts apart, the striking feature about this case is that the proceeding started in 1980, it was dropped on 6.4.1986 and 8 subsequently reinitiated in the year 1988-89. Thereafter the proceeding remained pending till 2007 because funds were not available. The question then arises whether the Land Acquisition Proceeding would vitiate in view of the provisions of Section 11A of the Land Acquisition Act? Section 11A of the Land Acquisition Act reads as follows:- [11-A. Period within which an award shall be made.-(I) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. In the present case the lands were notified under Section 4(i) of the Land Acquisition Act on 1.9.1988 and thereafter published in the newspaper as required under the Act. The declaration under Section 6 was published on 27.7.1989 and 30.7.1989 in the newspaper which is mentioned in the order dated 4.8.1989. Gazette notification under Section 9 was issued on 1.8.1989 and notices were issued to persons interested to appear before the 9 Collector. Thereafter the entire proceeding remained pending with no progress since the funds for acquisition were not available. The order dated 17.8.2007 indicates that the funds were made available with the Executive Engineer Bagmati Project vide letter no. 1401 dated 26.7.2007 and steps were taken under Section 12(2) of the Land Acquisition Act. The provision of Section 11A envisages that once all the modes of publication of declaration prescribed under Section 6(2) have been completed, the Collector shall made an award under Section 11 of the Land Acquisition Act within a period of two years from the date of publication of the declaration and if no award is made within that period the entire proceedings lapse. In other words the limitation period of two years for making an award has to be counted as the last of the dates out of three modes of publication specified under Section 6 of the Act as held in Bihar State Housing Board Vs. State of Bihar & Ors. reported in (2003)10 SCC 1, and in the case of Kunwar Pal Singh Vs. State of U.P. & Ors. reported in (2007) 5 SCC 85. The very edifice 10 on which the State basis its case falls apart by virtue of the provisions of Section 11A of the Land Acquisition Act and as such the other issues although decided in favour of the petitioners, would take a back seat in view of the decision in the case of State Housing Board and Kunwar Pal Singh, and as such the entire Land Acquisition Proceeding would lapse. The State Government may re-notify the lands under the Land Acquisition Act if it decides that there is a need to acquire the lands to rehabilitate those persons affected and displaced by the Bagmati River. In case the State Government decides to do that then it would be open to the petitioners to take recourse to provisions provided under Section 5A of the Land Acquisition Act to raise objections as they think fit and proper. The writ applications are allowed. Sanjay (Sheema Ali Khan,J)