1 Letters Patent Appeal No.392 OF 2010 ------------- Against the order dated 12.10.2009, passed in C.W.J.C. No. 9130 of 1995 by a learned Single Judge of this Court. --------------- 1. Shri Prajapati Jha, son of late Dashrath Jha. 2. Most. Sunaina Devi, wife of late Dr. Narsingh Mohan Maharaj. 3. Maharaj Abinash Kumar, son of late Ramchandra Mohan Maharaj and Most. Asha Devi alias Asha Rani Devi (deceased). 4. Shri Kant Pandey, son of late Raj Kumar Pandey. 5. Sooma Devi, wife of Dineshwar Pandey. 6. Brahmadeo Pandey, son of Dineshwar Pandey (deceased), all resident of Village_Jakarpura, P.O. & P.S. Surajgarha, District- Lakhisarai (Munger) ---- (Petitioners) ---- Appellants. Versus 1. The State of Bihar. 2. The Commissioner and Secretary, Revenue and Land Reforms Department, Government of Bihar, Patna. 3. The Commissioner and Secretary, Rural Development Department, Government of Bihar, Old Secretariat, Patna- 1. 4. The Director, Land Acquisition Directorate, Revenue and Land Reforms Department, Government of Bihar, Old Secretariat, Patna. 5. The Commissioner, Munger Division, Munger. 6. The Collector, Lakhisarai, District- Lakhisarai. 7. The Additional Collector, Land Acquisition, Munger. 8. The District Land Acquisition Officer, Munger. 9. The Sub-Divisional Officer, Lakhisarai. 10. The Block Development Officer, Surajgarha Block, Lakhisarai. 11. The Circle Officer, Surajgarha Anchal Office, Surajgarha, Lakhisarai. ---(Respondents) --- Respondents. ------- For the Appellants: Mr. Ganpati Trivedi, Mr. Manoj Kumar Jha & Mr. Madan Mohan. For the Respondents: Mr. Jashbir Singh Arora. ----------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH 2 S. K. Katriar, J. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna raises a grievance with respect to the order dated 12.10.2009, passed by a learned Single Judge of this Court in C.W. J.C. No. 9130 of 1995, whereby acquisition of the land of the petitioners has been upheld. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. Way back in the year 1972, the State Government decided to acquire 7.79 acres of land for construction of the block office and circle office at Surajgarha, in the then combined district of Munger on emergency basis under the provisions of Section 17 (4) of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) . The petitioners challenged the same by preferring C.W.J.C. No. 310 of 1972 and C.W.J.C. No. 312 of 1972, which were allowed by a Division Bench of this Court by a common judgment dated 22.8.1975, and it was held that it was not open to the State Government in the facts and circumstances of that case to acquire the lands under Section 17 (4) of the Act. Thereafter the State Government took steps to acquire the land in the usual course, and reduced the area of acquisition to 2.70 acres. The erstwhile combined district of Munger was divided into four districts, and the lands in question are now situate in the district of Lakhisarai. In the year 1994, during course of land acquisition proceeding, the Block Development Officer, 3 Surajgarha, commenced construction of the boundary wall on the land in question. On the protest of the petitioners, the Sub- divisional Officer, Lakhisarai, stayed further construction on the land in question. However, the boundary wall was completed and the petitioners were allowed passage for ingress and egress. The petitioners challenged the land acquisition proceeding by preferring the present C.W.J.C. No. 9130 of 1995, inter alia, on the ground that the authorities have forcibly taken possession of the lands without publication of the award in terms of Section 16 of the Act, and also on the ground that they themselves are poor, land-less persons and would be left with no land after acquisition of their land. The writ petition was dismissed by the aforesaid order dated 12.10.2009, in the absence of learned counsel for the petitioners. It is further relevant to state that the writ petition was filed on 3.11.1995, and the matter was laid before the learned Single Judge on various occasions. In spite of clear orders of the Bench, the State Government did not file counter affidavit in the writ proceedings. 3. Learned counsel for the appellants has assailed the validity of the land acquisition proceedings, as well as the order of the learned Single Judge, on various grounds. Learned Standing Counsel has opposed the writ petition and the present appeal. 4 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. The writ petitioners had taken a clear stand in the writ petition that the State Government had taken possession of the lands in question without there being an award in terms of Section 16 of the Act. Paragraph 29 of the writ petition is reproduced hereinbelow: “ 29. That, the petitioners state that till today, no award has been made or given by the respondent authority to any of the petitioners as stipulated in section 11(A) of the Act, and that being so, the entire proceeding is vitiated in law and is fit to be quashed.” 5. As stated hereinabove, the respondents did not file counter affidavit in spite of repeated opportunities. Law is well settled that such assertions in the writ petition, if not contradicted in the counter affidavit, would be deemed in law to have been admitted by the respondents on account of non- traverse. The position becomes further clear from the counter affidavit of the respondents in the present appeal, paragraph no.16 of which is reproduced hereinbelow: “16. That with regard to the statement made in Para 28 of the present memo of appeal it is stated that after completion of the acquisition process award will be given to the concerned persons.” 6. It is thus quite evident that the respondents have taken possession of the lands in question without publication of the award in terms of Section 16, read with Section 11 of the Act. 5 Learned counsel for the appellants relies on the observations of a Bench decision of the Assam High Court in the case of Assam Railways and Trading Co. Ltd. v. Union of India and North Eastern Rly., A.I.R. 1965 Assam 12. The relevant portion of the judgment is reproduced hereinbelow: “….Section 16 is clear and lays down that after the Collector has taken possession when award is made under section 11 that the property vests in the Government. Before this not only the property cannot vest in Government but before the award is given the Government is not entitled to take possession. The only contingency provided for taking possession before the award is one specified in section 17 ….” 6.1. A Division Bench of this Court had followed the judgment of the Assam High Court in the case of M/s Rambahadur Thakur & Co. Vrs. The Government of Bihar and another, 1986 P.L.J.R. 958. 7. Law is well settled that the authority must follow the prescribed procedure which is a strong guarantee against arbitrariness. It was held by the Judicial Committee of the Privy Council in the case of Nazir Ahmad Vs. King-Emperor, A.I.R. 1936 Privy Council 253(2), that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This has been followed by the Supreme Court and the High Court in India continuously ever since. 6 8. In the case of Ranjit Thakur Vrs. Union of India and others, (1987) 4 SCC 611, the Supreme Court emphasized that the prescribed procedure must be followed which is a guarantee against arbitrariness. The relevant portion is reproduced hereinbelow: “11. The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the court martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. The oft- quoted words of Frankfurter, J. in Vitarelli V. Seaton are again worth recalling: ….if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed …..This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. 12. “The history of liberty” said the same learned judge “ has largely been the history of observance of procedural safeguards”. 13. We are afraid, the non-compliance of the mandate of Section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. Indeed it has been so held by this Court in Prithi Pal Singh V. Union of India where Desai, J. referring to the purpose of Section 130 observed: [ SCC pp. 167-68, SCC (Cri) p. 667, para 32] Whenever an objection is taken it has to be recorded. In order to ensure that anyone objected to does not participate in 7 disposing of the objection …. This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection…. The provision conferring a right on the accused to object to a member of the court-martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the court-martial. This is pre-eminently a rational provision which goes a long way to ensure a fair trial.” 9. Applying this proposition of law to the facts and circumstances of the present case, it may be stated in the words of the Supreme Court that the procedural safeguards prescribed in the Act have to be considered in the context of and corresponding to the plenitude of the jurisdiction of the Government to deprive an owner of the right, title, or his possession in the strident back-ground of the doctrine of the Eminent Domain. Once the State Government takes possession of the land under its over-powering authority of Eminent Domain to acquire the property, the citizen has no right and title of the property left to himself and passes on to the State Government. Therefore, the prescribed procedure has to be meticulously followed. In such a situation, we record our feeling of displeasure against the functionaries of the State Government for forcibly taking possession of the land without publication of the award in terms of Section 16, read with Section 11, of the Act. Let possession of the land be restored to the appellants forthwith. 8 10. It appears to us from the materials on record that the land in question is the sole source of livelihood of the appellants who are poor and hapless persons, and would be left with no land. The learned Single Judge has clearly found that the State Government has taken possession of the land in question 14 years ago. The respondents in their counter affidavits in this appeal have not controverted this finding. We consider it to be a grossly arbitrary act on the part of the functionaries of the State Government. Therefore, the respondents shall pay compensation of Rs.5,00,000/- (five lacs) to the appellants which shall carry interest at the rate of 6% with effect from January 1995 till the date of payment. The appellants shall be entitled to retain the construction already put up by the respondents without risk of demolition or any payment. 11. In the result, we disagree with the order of the learned Single Judge. The writ petition as well as the present appeal are allowed. The District Magistrate of the district of Lakhisarai shall ensure payment of the amount of compensation expeditiously. ( S. K. Katriar, J.) S. P. Singh, J. I agree. ( S. P. Singh, J.) High Court Patna, Dated 18th March, 2011. Vinay/A.F.R.