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Hakim Singh Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. Nos. 711, 760, 765 and 766 of 1965
Judge
Reported inAIR1970All151
ActsLand Acquisition Act, 1894 - Sections 4, 5A, 6, 9(1), 17(1), 17(2) and 17(4); Land Acquisition (Amendment) Act, 1923 - Sections 3 and 4
AppellantHakim Singh
RespondentState of Uttar Pradesh and ors.
Appellant AdvocateS. Rahman and ;S. Mirza, Advs.
Respondent AdvocateChief Standing Counsel
DispositionPetitions dismissed
Excerpt:
.....under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - patwardhan, air 1965 bom 224. that is a clearly distinguishable case. it shall thus appear that it is not possible to issue a direction under section 17(1) along with a notification under section 4. in fact a direction under section 17(1) can be issued only subsequent to the determination of land needed for public purposes and that can be done only by a declaration under section 6. so, if the direction under section 17(4) cannot issue without the issue of a direction under section 17(1), it would follow that..........(4) of section 17 of the land acquisition act (hereinafter to be referred to as the act) can be issued if a notification under section 17(1) of the act has not already been issued. since that is the only question * raised in these petitions, instead of a question being referred to us, the petitions have been referred to us for decision.2. desai, c. j. and r. n. sharma, j. in sheikh ghulam maula v. state of u. p., 1964 all lj 928 - (air 1964 all 353) took the view that a notification under section 17(4) of the act without there being an earlier notification under section 17(1) of the act would be invalid.3. section 17 so far as it is relevant for our purposes reads:--'17(1) in cases of urgency, whenever the appropriate government so directs, the collector, though no such award has been.....
Judgment:

Jagdish Sahai, J.

1. in all these writ petitions the question involved is the same, i.e., whether a notification under Sub-section (4) of Section 17 of the Land Acquisition Act (hereinafter to be referred to as the Act) can be issued if a notification under Section 17(1) of the Act has not already been issued. Since that is the only question * raised in these petitions, Instead of a question being referred to us, the petitions have been referred to us for decision.

2. Desai, C. J. and R. N. Sharma, J. In Sheikh Ghulam Maula v. State of U. P., 1964 All LJ 928 - (AIR 1964 All 353) took the view that a notification under Section 17(4) of the Act without there being an earlier notification under Section 17(1) of the Act would be invalid.

3. Section 17 so far as it is relevant for our purposes reads:--

'17(1) in cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the 'expiration of fifteen days' from the publication of the notice mentioned in Section 9, Sub-section (1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.

(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, the Collector may, immediately after the publication of the notice mentioned in Sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government, free from all encumbrances:

...............................................

(3)......................................

(4) in the case of any land to which, in the opinion of the appropriate Government, 'the provisions of Sub-section (1) or Sub-section (2) are applicable', (underlined by us (here in ' ') the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4, Sub-section (1).'

4. It may be pointed out that originally Section 5-A and Sub-section (4) of Section 17 did not exist in the Act. These provisions were introduced by Sections 3, and 4 respectively of Act 38 of 1923. That Act was a remedial statute enacted to provide a remedy to the citizen against the acquisition of his land. Section 5-A of the Act gives a citizen the opportunity of objecting to the acquisition of his land. The object of introducing Sub-section (4) of Section 17 in the Act is to extinguish the applicability of Section 5-A in case of urgency.

5. In our opinion Sub-sections (1) and. (4) of the Act are two independent pro-, visions capable of being enforced at two1 different stages of land acquisition proceedings. An analysis of Section 17 of the Act, as it stands today, reveals that under Sub-section (1) the Collector may take possession of any waste or arable land, fifteen days after the publication of the notice mentioned in Section 9(1) of the Act, in other words, action under this subsection can be taken only after notifications under Sections 4 and 6 and the notice under Section 9(1) of the Act have been issued and objections, if any under Section 5-A of the Act, have been disposed oi Under Sub-section (4) of Section 17 of the Act, however, the appropriate Government may, after the notification under Section 4 of the Act has been issued, intervene and direct that the provisions of Section 5-A shall not apply, with the result that the declaration under Section 6 of the Act shall be made forthwith.

The only condition precedent to the exercise of the power under Sub-section (4)1 of Section 17 of the Act is that the appropriate Government should be of the opinion that the provisions of Sub-sections (1) and (2) of Section 17 apply to that case. Sub-section (1) provides for cases of urgency. Sub-section (2) also provides for cases of urgent nature, i.e., a case where there has been a sudden change in the channel of any navigable river or other unforeseen emergency, which makes it necessary for the Railway Administration to acquire the immediate possession of any land. When Sub-section (4) of Section 17 of the Act speaks of 'the provisions of Sub-section (1) or Sub-section (2) are applicable', it only, bodily lifts the words 'in cases of urgency' occurring in Sub-section (1) and words; 'whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or Ghat station' occurring in Sub-section (2) and place them in Sub-section (4) of Section 17 of the Act.This course was adopted for reasons of legislative convenience and to avoid the repetition of the words occurring in subsections (1) and (2) of Section 17 of the Act in Sub-section (4) and thus relieve that provision of cumbersomeness and make it neat and intelligible.

In our opinion, Sub-section (4) is not correlated to Sub-sections (1) and (2) of Section 17 of the Act because it was introduced in the Act later on and by way of a proviso to Section 5-A of the Act. If Section 5-A was not introduced in the Act Sub-section (4) of Section 17 would also not have been inserted therein. It is an exception to the general rule contained in Section 5-A of the Act. There is nothing in any provision of the Act to indicate that the appropriate Government can issue the direction under Section 17(4) only if a notification under Sub-section (1) of Section 17 of the Act has already been issued. No doubt the words used in Section 17(4) are 'the provisions of Sub-section (1) or Sub-section (2) are applicable'. These words only mean 'the provisions of Sub-section (1) or Sub-section (2) are capable of application'. The word 'applicable' cannot mean already applied.

6. For these reasons, we are of the opinion that all that the words underlined (here in ' ') above mean is 'where conditions contemplated for action by subsection (1) or Sub-section (2) of Section 17 of the Act are in existence,' i.e., in cases of urgency or cases of urgent nature mentioned in Sub-sections (1) and (2) of Section 17 of the Act.

7. We find support for our view from Nandeshwar Prasad v. U. P. Government, AIR 1964 SC 1217 and Sarju Prasad Saha v. State of U. P. AIR 1965 SC 1763. In the first case it was observed:--

'We have already pointed out that it is not necessary in law that when an order is passed under Section 17(1) an order under Section 17(4) must also be passed. ............... Sections 17(1) and 17(4) areIndependent of each other in the sense that an order under the former one does not necessarily require an order under the latter.'

In the second case Shah, J. who spoke for the Court observed as follows:--

'But by Section 17 two distinct powers exercisable by the appropriate Government in case of urgency are conferred: the first is the power to take possession before the award of compensation is made by the Collector, and the second is the power to dispense with an enquiry which the Act contemplates has to be made under Section 5-A(2).'

8. We respectfully disagree with the view taken in 1964 All LJ 928 = (AIR 1964 All 353) (Supra). Desai, C. J., who spoke for the Division Bench in that case observed:--

'It is only after the direction has been given that it can be said that the power mentioned in Sub-section (1) can be exercised in regard to the land, Le., that the provisions of Sub-section (1) are applicable to it. They cannot be said to be applicable to land merely because it is waste or arable if they are not of urgency and no direction to take possession of it before an award has been given; they cannot be said to be applicable simply because such a direction may at a later stage be given ........................The Government must bring the land actually within the application of subsection (1) by directing the Collector, on account of urgency, to take possession of it on the expiry of 15 days from the publication of a notice under Section 9(1) even though no award has been made'.

With great respect to Desai, C. J., he has read the word 'applicable' as already applied'. Under Sub-section (1) of Section 17 of the Act the appropriate Government can give a direction to the Collector for taking action only after fifteen days have expired from the date of the publication of the notice mentioned in Sub-section (1) of Section 9 of the Act. If action under subsection (4) of Section 17 is to be taken, the stage for it will be much earlier in time than the stage for action contemplated by Sub-section (1) of Section 17 of the Act. Besides, if the case is of such an extreme urgency that the applicability of Section 5-A has to be superseded then the appropriate Government would straightway issue a direction under Section 17(4) of the Act. It is not comprehensible as to why a direction under Sub-section (4) of Section 17 would at all be necessary if a direction has already been issued by the appropriate Government to the Collector under Section 17(1) of the Act to take possession of the land, because in that case the stage under Section 5-A would have been passed already.

9. There is nothing in the language of any provision in the Act including all the Sub-clauses of Section 17 to indicate that before a notification under Section 17(4) is issued one under Section 17(1) must already have been issued.

10. Mr. Shafiq Mirza has invited our attention of Sadruddin Suleman Jhaveri v. J. H. Patwardhan, AIR 1965 Bom 224. That is a clearly distinguishable case. In that case the learned Judges were called upon to decide whether the question that a land is or is not waste or arable is to be decided on the basis of the subjective satisfaction of the appropriate government or on the basis of objective factors. The Bombay Judges held that the opinion was to be based on objective test.

11. There is yet another reason for the view indicated above. A direction under Section 17(1) is to be given only in respect of land 'needed for public purposes'. It is only by means of a declaration under Section 6 of the Act that it is determined as to what land is needed for public purposes. The difference in the language ofSection 4 and that of Section 6 of the Act has to be kept in view. It shall thus appear that it is not possible to issue a direction under Section 17(1) along with a notification under Section 4. In fact a direction under Section 17(1) can be issued only subsequent to the determination of land needed for public purposes and that can be done only by a declaration under Section 6.

So, if the direction under Section 17(4) cannot issue without the issue of a direction under Section 17(1), it would follow that the very purpose of issuing a direction under Section 17(4) would stand defeated for the simple reason that a direction under Section 17(1) cannot issue till after the declaration under Section 6 and unless a direction under Section 17(4) has been issued a declaration under Section 6 cannot be made without allowing an opportunity to file objection under Section 5-A of the Act. That would positively show that the view expressed by the Division Bench in the case referred to above cannot be sustained.

12. For the reasons mentioned above we are of the opinion that the direction under Section 17(4) of the Act does not suffer from any defect either of fact or law. No other point has been raised in these petitions. We, therefore, dismiss them but direct the parties to bear their own costs.


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