IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.204 of 2009 In Civil Writ Jurisdiction Case No. 10766 of 2004 ====================================================== 1. Gaity Ara Rozy wife of Shamim Ahmad Khan,& Ors 2. Alam Ara@ Alam Ara Moghira, wife of Shamimuddin Khan. 3. Shoaib Ahmad Khan son of Late Moulvi Anwaruddin Khan All residents of Moazzam Chak, Police Station-Habibpur, District-Bhagalpur. ………….. Petitioners Versus 1. The State Of Bihar . 2. Secretary-cum-Commissioner, Department of Revenue and Land Reforms,Govt. of Bihar. 3. Deputy Secretary, Department of Revenue and Land Reforms,Govt.Of Bihar. 4. Collector, Bhagalpur. 5. Additional Collector, Bhagalpur. 6. Deputy Collector, Land Reforms, Bhagalpur. 7. District Land Acquisition Officer, Bhagalpur. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Md.Ataul Haque Mr. Deepak Kumar Singh Mr. Sanjay Sinha Mr. S.M.Shabbir Alam Mr. Saba Ashfaque For the Respondent/s : . ====================================================== CORAM: HONOURABLE JUSTICE SMT. T. MEENA KUMARI and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER (Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH) Heard Mr. Vinod Kant, learned Sr. Advocate appearing on behalf of the appellants and Mr. Lalit Kishore, learned senior counsel appearing on behalf of the Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 2 State of Bihar. The present LPA has been filed against the order dated 08.2.2008 passed in CWJC No. 10766/2004 (Gaity Ara Rozy and Ors. Vrs. State of Bihar and Ors.). The Writ petition has been filed assailing the entire Land Acquisition proceeding pertaining to acquisition of land for construction of a bye-pass road in the district of Bhagalpur including the notification under Section 4 of the Land Acquisition Act, 1984 (hereinafter referred to as the ‘Act’) dated 05.5.2001 as also declaration dated 11.5.2001 under Section 6 of the Act. The further prayer was to restrain the respondents from dispossessing the petitioners from the land in question. After hearing the parties, the learned Single Judge by order under Appeal has dismissed the writ petition relying mainly on the fact that notification under Section 4 of the Act dated 05.5.2001 and declaration dated 11.5.2001 was published in the District Gazette and the same was challenged only after vesting of the land upon taking possession of the same and also after declaration of the award. Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 3 In the present appeal, the learned counsel for the appellants states that the fact is somewhat different to what has been noted by the learned single Judge in the order under Appeal. The notification Under Section 4(A) (2) of the Act was dated 05.5.2001 and the same was published in the District Gazette on 28.6.2001. The said notification mentions that the State Government was invoking the powers under Section 17(4) of the Act by which the opportunity of filing an objection under Section 5-A of the Act was not given and the acquisition was being made under the emergency provisions. This was purportedly followed by notification Under Section 6 of the Act dated 11.5.2001 and the same was published in the District Gazette only on 20.2.2002. As per the case of the respondents the possession of the land in the question was taken over by the Collector on 11.3.2004 and the award had been prepared on 30.4. 2004 by the Collector. Learned counsel for the appellant submits that there was absolutely no compliance of the mandatory provisions of the Act in as much as the notice under Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 4 Section 9 of the Act prior to taking over possession was neither issued nor served upon the petitioners. In the counter affidavit also this aspect has not been addressed and the same is silent with regard to either issuance or service of notice under Section 9 of the Act. The petitioners in the rejoinder have specifically denied that notice was ever issued under Section 9 of the Act or they had received copy of the same. It was further categorically stated that they were still in possession of the lands in question. In support of the same, they have drawn the attention of the Court that even in the writ petition one of the reliefs sought for was that a direction be given to the respondents not to dispossess them from the Land in question. The learned senior counsel appearing for appellants has drawn our attention to various judgments on which he has relied while placing his case and the same are referred hereinbelow:- (i) (2011) 5 SCC 553 [ Radhey Shyam (Dead) through LRS. and others vs. State of Uttar Pradesh and others]. Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 5 (ii) (2009)2 SCC 377 [ Essco Fabs Private Limited and another vs. State of Haryana and another] The first Judgment is that of the Hon’ble Apex Court in the case of Radhey Shyam (Dead) through LRS and others Vrs. State of U.P. and others reported in (2011)5 SCC 553. He has specifically relied upon para- 77, of which Sub Paragraph (v) reads as quoted herein below:- “77(v) - Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting enquiry under Section 5-A will, in all probability, frustrate the public purpose for Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 6 which land is proposed to be acquired.” He then draws this Court’s attention to the Judgment of the Hon’ble Apex Court in the case of Essco Fabs Private Limited and another vs. State of Haryana and another as reported in (2009)2 SCC 377, the relevant paragraphs being 34, 35, 37, 38, 39, 41, 42, 53 and 54. The gist coming out from this paragraph is that Section 9 requires issuance of notice to persons interested followed by Section 11 of the Act which requires enquiry to be made and award to be passed by the Collector which according to the learned senior counsel appearing for the appellants has not been followed in the present case. Further, the judgment also deals with the issue with regard to urgency in the Land Acquisition Proceeding under which the appropriate Government has power under the Act to take immediate possession of the land in question. In this context also it is contended that the acquisition being said to be made by the State Government under emergency provisions does not stand the test of the statute. Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 7 The third Judgment cited by the appellants was in the case decided by the Hon’ble Apex Court in the case of Union of India & Ors. Vs. Shakuntala Gupta (Dead) by LRS. reported in 2002(7) SCC 98. The learned counsel has drawn our attention to paragraph- 15 with regard to applicability of Section 17 of the Act. Lastly the decision cited is also of the Hon’ble Apex Court in the case of Kunwar Pal Singh (Dead) by LRS. Vs. State of U. P. & Ors. reported in (2007)5 SCC 85, the relevant paragraphs being 28,29 and 31 which holds that if the award is not made within two years of notification, the same cannot be sustained and the proceeding itself lapses. The learned counsel appearing for the State has raised three points in opposition to the case set up by the appellants. Firstly, he submits that the writ petition came to be filed more than two years after publication of the notification under Section 6 of the Act, which was made in the year 2002 and on this ground alone due to delay and laches , this Court should not interfere. Secondly, he submits that the purpose for which the land is said to be Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 8 acquired relates to constructing Bhagalpur bye-pass road and if this Court interferes, then it would result in the authority having to make fresh alignment of the road, leading to both loss of public money as well as time which would be wasted on such exercise. Thirdly, he submits that the notice under Section 12(2) of the Act which has been brought on record by him in the counter affidavit, which is dated 07.8.2004, clearly indicates that after the award having been made the petitioners were called upon to collect their compensation amount but they have chosen not to get their money. He places reliance on two judgments, the first reported in AIR 1993 SC 2517 [ Surendra Prasad Jain Vs. State pf U.P.] of the Hon’ble Apex Court, and the other reported in A.I.R. 1985 Patna 70[Keshav Pal & State of Bihar]which is of a Division Bench of this Court. In both the cases, it has been held that if the challenge to the acquisition is after delay of time, the same should not be interfered with. This defeated the cause of action is available to the aggrieved persons. Learned counsel further submits that as per the said Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 9 judgment, the limitation of two years was not applicable since the possession was taken on 11.3.2004 and the award has been passed on 30.4.2004. In the judgment relied upon by the learned counsel of the respondents reported in AIR 1985 Patna 17, the Hon’ble Court has held that the delay in approaching the Court challenging the acquisition will defeat the cause and the writ petition was liable to be dismissed on the ground of delay and laches. He submits that in the present case, the petitioner having moved this Court much after the issuance of notice under Section 4 of the Act, the writ petition was not fit to be entertained on this ground alone. The learned Single Judge was of the opinion that the proceeding did not suffer from any legal lacuna and the application was also fit to be dismissed on the ground of gross laches and delay on the part of the petitioners. Upon hearing the rival contentions of the parties and having perused the materials on record, we are of the opinion that the Land Acquisition proceedings have not been proceeded with in accordance with the mandatory Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 10 requirements of the statute. The notice Under Section 4 of the Act was dated 05.5.2001 which was published in the District Gazette on 28.6.2001.The same, indicated that Under Section 17(4) the Act the opportunity of hearing as available Under Section 5-A of the Act was being waived. The second notification Under Section 6 of the Act, though dated 11.5.2001, has been published in the District Gazette on 20.2.2002. This itself indicates that even the respondents were not in a position to justify, by their conduct, that restoring to the Special provisions of Section 17 of the Act was required in the present case. The notification Under Section 6 of Act ought to have been published within a reasonable time from that Under Section 4 of the Act so as to justify the conduct and act of the respondents in taking a conscious decision at the appropriate level that the acquisition had to be made under the emergency provisions. Time being of essence, urgency has definitely to be reflected by the follow up action taken by the respondents. In the present case this Court finds that from the Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 11 subsequent action of the respondents, their claim and stand that the land was required immediately justifying invoking of Special Powers under Section 17 of the Act stands belied. The other point, which is of equal importance, is the fact that the writ petition came to be filed in September, 2004 and the prayer was, inter alia, to quash the entire land acquisition proceedings as well as to restrain the respondents from dispossessing the petitioners from the said land. In the counter affidavit it is stated that the possession was already taken on 11.3.2004 followed by award dated 04.4.2004 and subsequently the notices were also issued under section 12(2) of the Act dated 07.8.2004 ,i.e. ,all the events having taken place before filing the writ petition and still the petitioner praying to the Court for restraining the respondents from dispossessing them clearly goes to show that on the ground there was absolutely no attempt by the respondents to disposes the petitioners and take possession of the land which they claim to have done on 11.3.2004. However, in the counter affidavit there is no Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 12 supporting evidence and even though there is a categorical statement that notice was sent to the petitioners, but all the notices, Under Section 12(2) of the Act, copies of which are annexed to the counter affidavit, do not show any endorsement by any of the petitioners. At para-20 of the counter affidavit filed by the State, it is stated that the notice was served upon the petitioners to receive the award but they did not turn up as yet. The obvious import of this statement is that the notices were not refused by the petitioners rather they took the same but did not turn up to collect the award amount. This is not reflected from the copies of the notice which have been annexed to the counter affidavit since it neither has any receipt showing science nor any noting that the same was refused and there is also no such statement in the counter affidavit .The other major infirmity which this Court finds in the entire proceeding is that the counter affidavit is totally silent with regard to any notice having been issued , much less served under Section 9 of the Act, which is a mandatory provision before possession being Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 13 taken over by the Collector. In fact, in the re-joinder the appellants (writ petitioners) have categorically denied that there was any such notice received by the appellants as required under Section 9(1) of the Act or ever served upon them. This contention unrebutted by the respondent State authority. Even today, learned counsel for the State fairly submitted that he had nothing more to add than what has been stated in the counter affidavit since whatever was on the record has been stated in the counter affidavit. In these circumstances, this Court is left with no option but to hold that Under Section 9 of the Act, notice was never issued nor served upon the appellants (writ petitioners). The respondents have also not explained or given any reasons as to why possession was taken on 11.3.2004 when the award itself came to be passed on 30.4.2004. There is also no explanation as to what further steps were taken by the respondents after taking possession since the appellants have categorically stated that even till the date the said land has purchased over it and has not been taken Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 14 possession by the respondents. There being no stay order of the Court during the intervening period, the respondents have not been able to show that actually invoking the provisions of Section 17 of the Act was justified in the present case since the land remains in the original shape and no road has been built upon the same. With regard to the contention of the learned counsel for the State that the petitioners did not move this Court for two years, the same cannot be seriously taken cognizance of for the reason that in the writ petition itself copies of various representations to the Commissioner, Bhagalpur Division, Department of Revenue and Land Reforms, Government of Bihar as well as Hon’ble Cabinet Minister of Surface Transport and Highways, Govt. of India have been annexed, which are of the year 2001 to 2003 under Section 48 of the Act, which give power to the State Government to withdraw from the acquisition of any land of which possession has not been taken. Further, till such time when actually an award was not prepared or Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 15 the appellant got any notice under Section 9 of the Act they had no cause of action to move this Court and there could have been an occasion that the Government itself let the proceedings come to an end by efflux of time as amended by Section 11-A of the statute itself. The Court does not find that there has been any delay or laches on the part of the appellants (writ petitioners) in approaching this Court. Further, since there was no entitlement of taking possession ,the appellants after having waited for over two years have rightly moved before this Court for declaration to the effect that the land acquisition proceedings are not valid. On this ground also we hold that there was no laches on the part of the appellants- writ petitioners in invoking the writ jurisdiction of this Court for getting the land acquisition proceedings quashed and preventing the respondents from dispossessing them from the land in question. It would be in the fitness of things to notice the judgment of the Hon’ble Supreme Court reported in 2011 Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 16 (5) SCC 553 (supra) which in clear term has held that Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired. In the present case, the notification under section 4 of the Act is dated 5.5.2001 and till date the proposed road has not been built making the case of the respondents not sustainable from the point of view of invoking section 17 of the Act since no urgency has been shown by the conduct/action of the respondents justifying that the provisions of Section 5-A of the Act shall not be applicable. The procedure adopted for reaching to such stands opinion being found by the Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 17 appropriate government vitiated both in law as well as on facts in the present case for non-compliance of the statutory requirements under the Act. Even coming to the issue of the notice under section 12(2) of the Act it is evident from the Act itself that before the award of Collector becomes final, the Collecter shall give immediate notice of such award. Further, it would be relevant to indicate here that there is absolutely no material or statement in the counter affidavit of the respondents that the procedure and notice as required under sections 9, 10, 11 and 11-A of the Act was duly complied with before the notice under section 12(2) of the Act with regard to the award was issued. In this connection, it would be useful to notice that the learned Single Judge has referred to the decision of the Hon’ble Apex Court reported in AIR 1993 SC 2517(Supra) with regard to non-applicability of the two years period of limitation with regard to the notification for acquisition and passing of the award. We respectfully point out that the facts of the said case are materially different to the Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 18 facts of the present case in as much as in the case before the Hon’ble Apex Court the procedure under section 9 of the Act had been followed. In the instant case, that is not the position and thus the ratio of that case shall not be applicable to the facts and circumstances of the present case. This Court would like to indicate that land acquisition being a serious matter for the persons whose land is acquired and there being clear-cut mandatory provisions under the Land Acquisition Act itself which have not been followed, in the present case, it has to be held that there has been absolutely no material even to indicate that the provision of sections 9, 10, 11 and 11-A of the Act were followed, and accordingly taking of possession becomes illegal and void. Moreover, taking recourse to the emergency/urgency provision and plea of taking possession without complying with section 9 of the Act cannot be sustained or condoned. In view of the discussion made hereinabove and reasons mentioned therein, we have no hesitation in holding that the entire land acquisition proceeding Patna High Court LPA No.204 of 2009 (9) dt.15-07-2011 19 initiated with regard to the land in question of the appellants-writ petitioner stands lapsed and cannot be enforced. Accordingly, it is clear that the respondents have absolutely no right to interfere with the right, title or possession of the appellants’- writ petitioners’ land in question and no proceeding for acquisition exists in the eye of law. Accordingly, the order of the learned Single Judge is set aside and the appeal stands allowed. However in the facts and circumstances of the case there shall be no order as to costs. ( T. Meena Kumari, J.) (Ahsanuddin Amanullah, J) Patna High Court Dated 15th July, 2011 Sudha/sudip