IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12891 of 2005 RAM PREET SINGH @ MAHTO & ORS Versus THE STATE OF BIHAR & ORS ----------- 11 20.08.2008 Heard. The petitioners have challenged proceedings for acquiring their lands under emergent proceedings, for the purposes of establishing boarder out post for the Sashastra Surakcha Bal (SSB), a semi Para Military Force formed for patrolling the boarders of the Country. Their contention is short, their lands are not waste though arable lands, they are valuable property situated next to the High Way. Under the garb of national security, their small portions of agricultural lands are sought to be acquired, when substantial vacant government land in the very vicinity was available, government lands were not acquired, rather private marginal farmers having land adjacent to the High Way are to be displaced. This, it is submitted renders the entire exercise bad and violative of the constitutional protection in terms of being arbitrary and discriminatory. State has countered the stand of the petitioner. First, a counter affidavit duly sworn by the District Land Acquisition Officer is filed, which admits that vacant government lands are available, but, pleaded that they were as reported, not suitable for the requirements of SSB. This raised an important issue. The question, whether, they were suitable or not would only arise once these vacant government lands were shown to the SSB or not, because, SSB could only take a conscious decision to select lands, if various availabilities was made - 2 - known to it before hand. Therefore, this Court directed an affidavit to be sworn and filed by the Collector of district specifically stating whether government lands which were lying vacant were shown to the authorities or not because unless such lands were disclosed to the authorities, they cannot be expected to have taken a conscious decision, in the matter. The need and availability was not such that for the purposes of national security the land in vicinity and nearer to the boarder, which was vacant government land could not be acquired and citizens must part with their lands and be displaced and be satisfied with mere monetary compensation. This balancing of conflicting interest in the opinion of this Court was to brought on record especially when emergent proceeding under Section 17 (4) was resorted to excluding right of objection and its consideration under Section 5 A of the Land Acquisition Act. Now, a second supplementary counter affidavit was filed by the Collector of the district, here, forgetting what was earlier said in the counter affidavit filed by the District Land Acquisition Officer that government vacant land of about 40 acres was available as against requirement of about 2.50 acres; the Collector took a complete U-turn and makes a bald statement that no vacant land available. The pointed query by this Court, pursuant to which this second supplementary counter affidavit was filed, has been very cautiously avoided to be answered. Now, a bogie of suitability of land has been raised by all concerned, but, without referring to exercise of any choice. SSB was made a party and they have also filed a counter affidavit. Not at one - 3 - place have they stated that they were given any choice by the district administration. To the contrary the first counter affidavit of the State, the second supplementary counter affidavit of the State and counter affidavit of the SSB are consistent on certain facts. The facts are that SSB on its own found the lands of the petitioners suitable for their purpose, obviously, because, those lands were all along the High Way. They have admitted that they did not see any other land. Copy of the original acquisition proceedings were produced before this Court by the State. A reference to the very opening order, which is there shows the very proceedings started with noting that SSB has requisitioned 2.5 acres of land pertaining to certain area, as per their letter dated 22.01.2004. The letter dated 22.01.2004, as appended to all the three counter affidavits, is clear that even before SSB approached the State for acquiring land it had already selected the site, without even consulting the district authority. Then, the order sheet discloses, the district authority merely proceeded to process the application and proceed with acquiring the said lands under emergent proceeding doing away with objections etc. It is only to meet formalities, subsequently, that certificates were obtained (which are found to be factually incorrect) that there was no vacant government land. These are wrong because of categorical admission in the first counter affidavit that substantial vacant land (40 acres) was available. One wonders, if that was the situation, how such certificates were issued and for what purpose. Nowhere in the entire proceedings is there anything to show that the district administration sat with SSB and discuss the matter and - 4 - considered the options in any manner and now only a vague bogie is being created on grounds of national security/suitability of land before this Court. Nothing is more important than the national security and suitability for such purpose but at the same time citizens right cannot be trampled. If government land was available for the purpose, which is still available, because, it is admitted that 40 acres of land is available in the vicinity itself, as against the requirement of only 2.5 acres, then, there must be very good justifiable reason for not diverting the government land for the use, in stead of acquiring valuable land of the petitioners along the High Way and displacing the citizens. In the entire records no such deliberation, whatsoever, has been brought on record preceding the request for acquisition of particular lands nor even thereafter. If there was no such deliberation, then was no conscious consideration of relevant facts and conflicting interests and if there was no conscious consideration, then, the decision based without deliberation and conscious consideration is not a valid decision in the eye of law. In the aforesaid facts, I am constrained to hold that the entire process of acquiring petitioners’ land stands vitiated for there being no deliberation conscious consideration of options. The right of citizen to object was taken away by resort to emergent proceedings. Blindly request for acquisition was exceeded to, all of which vitiates the entire action. I have no option, but, to quash the entire land acquisition proceedings. Petitioners assert that they are in possession, however, there are documents, which have been created for the purpose to show - 5 - that paper possessions have been taken over. Whatever may be the position, as the proceeding to acquire the land stand vitiated as a matter of law, the consequence would be restoration of petitioners’ possession forthwith. The writ application stands allowed, accordingly with the aforesaid direction. Trivedi/ (Navaniti Prasad Singh,J.)