IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8653 of 2009 1. MT.PRABHAWATI WIDOW OF LATE MADAN MISHRA, R/O VILLAGE- PATHAKAULI, P.S. BAGAHA, DISTRICT- WEST CHAMPARAN 2. KALAWATI DEVI, W/O CHHEDI SINGH 3. GEETA DEVI, W/O ANIRUDH SINGH, BOTH R/O VILLAGE- NARAINAPUR, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 4. MANORAMA DEVI, W/O ASHOK KUMAR SINGH, R/O VILLAGE - NARAINAPUR, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 5. GAYATRI DEVI, W/O SURENDRA KUMAR RAI, R/O VILLAGE RAMPUR TUTULIA, P.S. SHIKARPUR, DISTRICT WEST CHAMPARAN 6. DHRUVA PRASAD, S/O LATE BENI MADHAVA SAH, R/O PATHAKAULI, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 7. INDU DEVI, W/O RAM EQUIBAL TIWARY, R/O VILLAGE NARAINAPUR, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 8. NATHUNI YADAVA, S/O HARI CHARAN YADAVA, R/O VILLAGE NARAINAPUR, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 9. SHREE NARAIN PATHAK, S/O LATE RAMJI PATHAK 10. RAVI SHANKER PATHAK, S/O LATE HARI SHANKER PATHAK 11. VIJAY PRAKASH PATHAK, S/O LATE RAJENDRA PATHAK 12. NAG BARAIN PANDEY, S/O LATE RADHA KISHUN PANDEY, ALL R/O VILLAGE PATHAKAULI, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 13. JAGDISH RAO, S/O BISHWANATH RAO, R/O DUMAWALIA, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 14. ABHAY NARAIN PATHAK, S/O LATE RAMAKANT PATHAK 15. SHEO SAGAR PATHAK, S/O KAMAKHYA PATHAK, BOTH R/O VILLAGE PATHAKAULI, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 16. GUNJAN PATHAK, S/O RADHESHYAM PATHAK, R/O VILLAGE PATHAKAULI, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 17. KRISHNA MOHAN PANDEY, S/O SRI NIWAS PANDEY 18. SUNIL PATHAK @ SUNIL KUMAR PATHAK, S/O SADHU SARAN PATHAK, BOTH R/O VILLAGE PATHAKAULI, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 19. DHRUVA PANDIT, S/O LATE BIHARI PANDIT, R/O VILLAGE NARAINAPUR, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 20. USMAKANT PATHAK, S/O LATE KAPILDEO PATHAK, R/O VILLAGE PATHAKAULI, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 21. HARI SHANKER PANDEY, S/O GENA PANDEY, R/O VILLAGE PATHAKAULI, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 22. PARAS NATH TIWARY, S/O DEO SHARAN TIWARY, R/O VILLAGE DUMAWALIA, P.S. BAGAHA, DISTRICT WEST CHAMPARAN…. PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, WEST CHAMPARAN, BETTIAH 3. THE DISTRICT LAND ACQUISITION OFFICER, BETTIAH 4. THE SUB-DIVISIONAL OFFICER, BAGAHA, DISTRICT WEST CHAMPARAN ………………… RESPONDENTS 2 For the Petitioners :M/s Manan Kumar Mishra, Sr. Advocate, Awanish Kumar Pandey, Advocate For the State :M/s Lalit Kishore, Sr. Advocate (AAG-III), Rabindra Kumar Priyadarshi & Girijesh Kumar, Advocatres -------------- 08/ 23.03.2010 Petitioners are the raiyat of the lands situate in village Pokharbhinda, Domwalia, P.S. Bagha in the district of West Champaran detailed in Annexure-2/A of the writ application, which has been acquired for establishing Bagha police line. They question the validity of the land acquisition proceedings on various grounds, that without there being order of the appropriate government directing the authorities to dispense with the inquiry under Section-5A of the Land Acquisition Act (hereinafter referred to as the Act), notification under Section-4 and declaration under Section-6 of the Act was issued acquiring the lands in question without giving opportunity to the petitioners to file their objection under Section 5A of the Act. They further question the acquisition proceeding on the ground that assuming there is order under Sub-Section-(4) of Section-17 of the Act to dispense with the inquiry under Section-5A of the Act, there is no valid ground for invoking such power. It is further submitted that the appropriate government never passed order under Sub-Section-(1) of Section- 17 of the Act directing the authorities to take immediate possession of the lands in question. In support of the submission made with respect to Sub-Section-(4) of Section-17 and Sub- Section-(1) of Section-17 of the Act learned counsel for the 3 petitioner relied on the judgment of the Hon,ble Supreme Court in the case of Union of India and Ors. Versus Mukesh Hans etc., reported in AIR 2004, Supreme Court 4307, paragraphs-31, 32, 33. 2. Learned counsel for the petitioners further submitted that the instant land acquisition proceeding was conducted by the District land Acquisition Officer, West Champaran and not by the Collector, West Champaran and thus the proceeding is vitiated on account of non-application of mind by the Collector of the District. It is also submitted that award has been published by the District Land Acquisition Officer without the approval of the Government/the officer authorized and on that ground also the proceeding including the award is fit to be quashed. It is also submitted that the award was published beyond the period of two years from the date of publication of the declaration and is violative of Section-11-A of the Act. Finally with reference to the interim order dated 25.7.2009 passed in the instant case it is submitted that the authorities were restrained from evicting the petitioners from the lands in question and in the light of the said order possession, which has been taken over by the Land Acquisition Officer on 29.7.2009 and handed over to Dy. S.P., Bagha on the same day is of no consequence. 3. Learned counsel for the State in opposition submitted that bare perusal of the writ petition would indicate that the factual foundations have not been laid by the petitioners 4 to support the submission that appropriate Government did not pass order under Sub-Section-(4) of Section-17 of the Act for dispensing with the inquiry under Section-5A of the Act and for taking immediate possession of the lands in question under Sub- Section-(1) of Section-17 of the Act and to dispel any doubt in this regard learned counsel for the State readily agreed to produce the file, whereunder the appropriate Government processed the requisition for acquisition of the lands in question so as to establish before this Court that the inquiry under Section-5A of the Act was dispensed with and possession of the lands in question was taken by the authorities under the orders of the State Government. The photo copy of the Government file produced by the learned counsel for the State is taken on record. Learned counsel for the State with reference to the notification of the State Government bearing No.19(3) dated 14.1.2009 of the Revenue and Land Reforms Department submitted that the District Land Acquisition Officer, West Champaran was vested with the powers of the Collector of the district other than the powers contained in Sections-4, 5A, 6 and 35 of the Act and the Collector, West Champaran having considered the requisition of the S.P., Bagha for acquiring the lands in question forwarded the proposal and the draft of the notification/declaration under Section 4/6 of the Act for consideration by the State Government and submission that Collector of the district has not applied his mind is wholly misconceived which would also appear from the 5 Government file produced before this Court. The submission that District Land Acquisition Officer published the award without the approval of the Collector of the district is wholly misconceived as from the order sheet maintained in Land Acquisition Case No.09 of 2007-08 it would appear that the award was published with the approval of the Collector of the District as is evident from the order dated 31.3.2009 passed by the Collector, West Champaran. 4. Learned counsel for the State with reference to the judgment of the Hon’ble Supreme Court passed in the case of Awaddh Bihar Yadav and Ors Versus State of Bihar and Ors. And Sita Ram Gope and Ors. Versus State of Bihar and Ors., reported in 1995(6) SCC 31, Paragraph-8 submitted that the possession of the lands in question having been taken in compliance of the orders of the State Government issued under Sub-Section-(1) of Section-17 of the Act, Section-11-A of the Act is not attracted and the land acquisition proceeding would not lapse even if no award is made within the period prescribed by Section-11-A of the Act. 5. In order to verify the rival submissions of the parties, I have myself perused the file during hearing of the writ petition in which the requisition of the S.P., Bagha was considered by the Collector, West Champaran, the Commissioner, Tirhut Division, the Director, Land Acquisition and the officers of the State Government including the Hon’ble Minister, Revenue and Land Reforms Department and therefrom it appears Superintendent of Police, Bagha under requisition dated 6 24.2.2004 requested the Collector, West Champaran to acquire 45.05 acres of land in village Pokharbhinda, Domwalia detailed in Appendix-I of the requisition, with further request made in appendix-II to dispense with the inquiry under Section-5A of the Act and to obtain orders of the State Government under Sub- Section-(1) of Section-17 of the Act for immediate taking over/delivery of possession of the lands in question considering the urgency to establish and raise the police line over the same. Aforesaid requisition was considered by the Land Acquisition Officer, West Champaran on 3.9.2006 and by the Collector, West Champaran on 27.9.2006 when he approved the draft of the notification under Section-4 and declaration under Section-6 and forwarded the same to the Commissioner, Tirhut Division under letter No.105 dated 4.11.2006 so that the Commissioner may consider the requisition/proposal for acquisition and the draft of notification/declaration and endorse the same to the Government for appropriate orders. The Commissioner, Tirhut Division having received the requisition/proposal for acquisition and the draft of notification/declaration forwarded the same to the Director, Land Acquisition under letter No.4999 dated 13.11.2006 stating that he is in agreement with the proposal for acquisition of the lands in question as also with the contents of the draft of notification/declaration submitted by the Collector, West Champaran and requested the Director to obtain appropriate Government orders and to communicate/notify the same. The 7 Director, Land Acquisition having received the requisition/proposal for acquisition along with the draft of notification under secton-4 and declaration under Section-6 examined the same and placed for orders before the Government and the Hon’ble Minister under orders dated 2.2.2007 approved the proposal to acquire the lands in question along with the draft of notification/declaration. Perusal of the draft of notification clearly indicate that Government is satisfied that the acquisition of 45.05 acres of land situate in village Pokharbhinda, Domwalia is urgently needed and in appreciation of the urgency Hon,ble Minister by approving the draft notification under Section-4 of the Act directed that inquiry under Section-5A of the Act be dispensed with in terms of the provisions contained in Sub-Section-(4) of Section-17 of the Act. In the light of the orders of the State Government(Hon’ble Minister) the notification under Section-4 dated 9.2.2007 and declaration under Section-6 dated 13.2.2007 acquiring 45.05 acres of land was issued whereafter declaration under Section-6 was published in two news paper, namely, Aaj and Faruki Tanjim, photo copy whereof is available in the file at page-73C. In the district gazette dated 15.3.2007 also the notification under Section-4 and declaration under Section-6 was published, copy whereof is also available in the file. Having published the notification dated 9.2.2007 and declaration dated 13.2.2007 in the two newspapers, the district gazette as also served notice at local level the Collector informed the 8 Commissioner, Tirhut Division about the publication made and requested him to obtain government order for taking possession of the lands in question with reference to Sub-Section-(1) of Section- 17 of the Act. Such request of the Collector, West Champaran is contained in letter No.48 dated 25.4.2007 and is available at page 51C of the file. The Commissioner having received the request of the Collector requested the Director, Land Acquisition under letter No.2710 dated 20.6.2007 to obtain government order for taking immediate possession of the lands in question. The Director placed the request of the Collector and the Commissioner to obtain immediate possession of the lands in question before the Government on 3.7.2007 and the Government(Hon’ble Minister) approved such proposal and the draft of the order under orders dated 4.7.2007 which is found at page-10C of the file. In compliance of the government order Collector, West Champaran was instructed to take immediate possession of the lands in question under letter No.1605 dated 11.7.2007, kept at page-88C of the file, whereafter the Collector published the award, as is evident from the order sheet dated 31.3.2009 maintained in connection with Land Acquisition Case No.09 of 2007-08 and notice under Section-12(2) dated 16.6.2009, Annexure-5 series was issued calling upon the petitioners and others to receive the compensation amount. Having issued notice dated 16.6.2009 under Section-12(2) of the Act calling upon the petitioners and others to receive compensation the District Land Acquisition 9 Officer, West Champaran took possession of the lands in question on 29.7.2009 and handed over the same to the Dy. S.P., Headquarters, Bagha for establishing the police line over the lands in question. 6. I have considered the manner in which the requisition of the S.P., Bagha dated 24.2.2004 for acquisition of the lands in question was considered by the Collector, West Champaran as also discussed the contents of proposal and draft notification, declaration dated 27.9.2006. The draft of the notification clearly provided that it was an appropriate case in which Government should dispense with the inquiry under section 5A with reference to the provisions contained in Sub- Section-(4) of Section-17 of the Act, which was approved by the State Government(Hon’ble Minister) on 2.2.2007 on the basis of which notification dated 9.2.2007 under Section-4 and declaration dated 13.2.2007 under Section-6 was issued. It is thus evident that the Government having considered the urgency to raise the police line while approving the proposal and draft notification/declaration under order dated 2.2.2007 specifically directed to dispense with the inquiry under Section-5A of the Act and the submission to the contrary that there is no Government order under Sub-Section-(4) of Section-17 of the Act to dispense with the inquiry under Section-5A of the act is misconceived and rejected. The Collector having considered the importance and urgency of the project for which the land acquisition was being 10 made and having published the notification/declaration in two newspapers and the district gazette as also having taken steps for local publication under letter dated 25.4.2007 requested the Commissioner, Tirhut Division to request the Director, Land Acquisition, Bihar to obtain government order for taking immediate possession of the lands in question. Such request was forwarded by the Commissioner to the Director, who placed the request before the Hon’ble Minister on 3.7.2007 and the State Government(Hon’ble Minister) under order dated 4.7.2007, which is at page-10 of the file approved the proposal to take immediate possession of the lands in question under Sub-Section-(1) of Section-17 of the Act. In compliance whereto order contained in letter no.1605 dated 11.7.2007, kept at page-88C of the file was issued instructing the Collector, West Champaran to take immediate possession of the lands in question, whereafter award dated 31.3.2009 was published, as is evident from the order sheet maintained in connection with Land Acquisition Case No.09 of 2007-08 and notice under Section-12(2) dated 16.6.2009, Anne;xure-5 series was issued calling upon the petitioners and others to receive the compensation amount and possession of the lands in question was taken on 29.7.2009. It is thus evident that possession of the lands in question has been taken over by the authorities in compliance of the order of the State Government dated 4.7.2007 which was communicated to the Collector under letter No.1605 dated 11.7.2007 and thus the submission of the 11 learned counsel for the petitioners that there is no government order to take possession under Sub-Section-(1) of Section-17 of the Act is wholly misconceived and rejected. 7. From the discussions made above in paragraphs-5 and 6 it would appear that the requisition of the S.P., Bagha was considered by the Collector, West Champaran who forwarded the proposal with the draft of notification/declaration dated 27.9.2006 under letter dated 4.11.2006. He also considered and forwarded the request for obtaining possession of the lands in question under Sub-Section-(1) of Section-17 of the Act under his letter dated 25.4.2007 and it is incorrect to submit on behalf of the petitioners that Collector of the district has not applied his mind to the proposal of the S.P., Bagha for acquisition of the lands in question. Submission of the learned counsel for the petitioners that the award was not published within two years from the date of declaration i.e. 13.2.2007 also appears to be misconceived in view of the fact that Government having passed orders dated 4.7.2007 under Sub-Section-(1) of Section-17 of the Act which was communicated to the Collector, West Champaran under letter No.1605 dated 11.7.2007 instructing him to take immediate possession of the lands in question, in the circumstances, Section-11-A has no application to the facts of the instant case in view of the law laid down by the Hon’ble Supreme Court in the case of Awaddh Bihar Yadav and Ors Versus State of Bihar and Ors. And Sita Ram Gope and Ors. Versus State of Bihar 12 and Ors., reported in 1995(6) SCC 31, Paragraph-8. The submission of the learned counsel for the petitioners that taking over possession of the lands in question on 29.7.2009 is of no consequence as the authorities were restrained under the interim orders of this Court dated 25.7.2009 from evicting the petitioners from the lands in question also appears to be misconceived as symbolical possession of the lands in question was taken by the authorities in compliance of the orders of the State Government(Hon’ble Minister) dated 4.7.2007 in terms of the powers vested in the Government under Sub-Section-(1) of Section-17 of the Act which was communicated to the Collector of the district under letter No.1605 dated 11.7.2007, in compliance whereto notice under Section-12(2) of the Act dated 16.6.2009, Annexure-5 series was issued calling upon the petitioners and others to collect the compensation amount by appearing before the Land Acquisition Officer on 20.6.2009. The authorities having taken symbolical possession in the light of the order of the State Government dated 4/11.7.2007 which was never stayed by this Court, the submission that possession could not have been taken appears to be wholly misconceived. 8. In view of my discussion above there does not appear to be any merit in the writ application, which is dismissed. AFR Rajesh/ ( V. N. Sinha, J.)