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Zubeda Begum and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Nos. 1659 and 2162 of 1970
Judge
Reported inAIR1971All452
ActsConstitution of India - Articles 73(1), 258(1) and 298; Land Acquisition Act, 1894 - Sections 4(1) and 17
AppellantZubeda Begum and ors.
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateS.C. Khare and ;S. Afsar Ali, Advs.
Respondent AdvocateStanding Counsel
DispositionPetitions partly allowed
Excerpt:
.....- sub-article (1) of article 258 of constitution of india - entrustment of union's function under land acquisition act to state government - delegation of power is valid - publication of notification in gazette of india is necessary when issued by union government - notification issued by state government than publication in state gazette is sufficient - sub-section (1) of section 4 of land acquisition act, 1984. - - it may be mentioned that section 3(39) of the general clauses act, 1897, defines 'official gazette' or 'gazette' as meaning the gazette of india or the official gazette of a state and section 4a of that act provides, inter alia, that the definition of 'official gazette' in section 3 shall apply, unless there is anything repugnant in the subject or context, to all 'indian..........the law of the land. i, for all these reasons, hold that the entrustment of the function under the landacquisition act by the president to the state government is valid.5. it is unnecessary, in view of the supreme court decision, to refer to the decisions of the various high courts on the subject, but nevertheless it may be mentioned that a similar view has been taken by some high courts regarding the entrustment of functions under a variety of statutes, vide, for example, in re kanchamreddi, air 1962 andh pra 322, t. d. corporation v. state of assam, air 1961 assam 133 (fb) and the management of bararee coke plant v. their workmen, air 1968 pat 133. the assam case, it may be mentioned, was regarding the entrustment of functions under the land acquisition act.6. it was next urged on.....
Judgment:
ORDER

B.N. Lokur, J.

1. These two petitions were heard together and are being disposed of by this common judgment as the same questions of law arise in both the petitions.

2. On the 9th March, 1970, the Governor of Uttar Pradesh issued two notifications under Section 4(1) of the Land Acquisition Act 1894. Both the notifications mentioned that the public purpose which was to be subserved by acquisition of the lands described therein was 'provision of married Officers' accommodation. Indian Air Force in District Gorakhpur.' One of the notifications also included the direction for taking possession of the lands under Section 17(1) of the Act and a further declaration dispensing with the provisions of Section 5A under Section 17(4). Since urgency provisions were applied by this notification, it will be hereafter referred to as 'the urgency notification.' The other notification did not apply the urgency provisions and called upon the interested parties to make objections under Section 5A. This notification would be hereafter referred to as 'the ordinary notification'. On the 21st March, 1970, corresponding notifications under Section 6 of the Act were issued. The urgency notification included a large number of plots covering an area of 97.81 acres; the ordinary notification dealt with two plots only, both together admeasuring 1.56 acres. The plots sought to be acquired under the two notifications are in the neighbourhood of the Indian Air Force Airport at Gorakhpur

3. These two petitions have been filed by a number of land-holders whose plots are covered by the said notifications, challenging the validity of the notifications.

4. The public purpose mentioned in the two notifications is evidently the purpose of the Union and the notifications ought to have been normally issued in the name of the President of India. However, the Government of India have entrusted, in exercise of the powers under Article 258(1) of the Constitution, all functions under the Land Acquisition Act to the State Government, A copy of the relevant notification is attached as an annexure to the counter-affidavit filed on behalf of the State Government. Sri S. C. Khare, learned counsel for the petitioners in one of the petitions, contended that Article 258(1) of the Constitution enables the President to entrust to a State Government or to its officials functions in relation to 'any matter to which the executive power of the Union extends' and the functions under the Land Acquisition Act cannot be entrusted under Article 258(1) to the State Government as they do not relate to matters to which the executive power of the Union extends.

He developed the argument by referring to Article 73(1) of the Constitution which implies, in view of the proviso to that clause, that the executive power of the Union does not extend to matters with respect to which the Legislature of States also have power to make laws. It may be recalled that the legislative power for 'Acquisition and requisitioning of property' was, when the Constitution was originally adopted, distributed over all the three Legislative Lists: Entry 33 in the Union List, dealt with 'Acquisition or requisitioning of property for the purpose of the Union', while Entry 36 in the State List referred to 'Acquisition or requisitioning of property except for the purposes of the Union subject to the provisions of Entry 42 of List III', and Entry 42 in the Concurrent List provided for 'Principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other public purpose is to be determined and the form and the manner in which such compensation is to be given'.

By the Constitution (Seventh Amendment) Act, 1956, Entry 33 in the Union List and Entry 36 in the State List were omitted altogether and Entry 42 in the Concurrent List was amended to read 'Acquisition and requisitioning of property'. Thus a single general Entry on the subject of acquisition and requisitioning of property was introduced in the Concurrent List. It has been argued by Sri Khare that, in view of new Entry 42in the Concurrent list, both Parliament and the State Legislature came to possess power to make laws on matters with respect to acquisition and requisitioning of property and, accordingly, in the light of the proviso to Article 73(1) of the Constitution, the executive power of the Union ceased to extend to matters with respect to acquisition and requisitioning of property, with the result that Article 258(1) which restricts the scope of entrustment only to matters to which executive power of the Union extends could not be invoked for entrusting the functions in relation to acquisition and requisitioning of property to the State Government or their officials.

The argument, however, is no more open for discussion in view of the decision of the Supreme Court in Jayanti Lal Amrat Lal v. F. N. Rana, AIR 1964 SC 648 wherein after consideration of a similar argument the majority judgment came to the conclusion that the executive power of the Union did extend to matters relating to acquisition of property; it was pointed out that the opening words in Article 73(1) 'Subject to the provisions of this Constitution' abridged the full force of the proviso to that Article and since Article 298 inter alia, extended the power of the Union to the acquisition of property, the executive power of the Union extended also to functions relating to acquisition of property. However, Sri Khare sought to argue that the reasonings of the Supreme Court based on Article 298 seems to require reconsideration as, according to him. Article 298 does not deal with compulsory acquisition. In support of this argument, he referred to Article 31(2) wherein the expression 'compulsorily acquired' is used and compared it with the expression in Article 298 which speaks of 'acquisition, holding and disposal of property'. It was contended that the scope of the word 'acquisition' the Article 298 should take colour from the words 'holding and disposal' which are used in juxtaposition with the word 'acquisition', and in that event Article 208 ought to be properly construed as referring to acquisition by negotiation only and not also to compulsory acquisition.

In my opinion, the word 'acquisition' in Article 298 has been used in a compendious sense including compulsory acquisition and the fact that the word is followed by 'holding and disposal' is not sufficient reason to narrow down the scope of the word 'acquisition'. Apart from that, the Supreme Court did take aid of Article 298 in holding that the executive power of the Union extends to matters relating to acquisition of property according to the law of the land. I, for all these reasons, hold that the entrustment of the function under the LandAcquisition Act by the President to the State Government is valid.

5. It is unnecessary, in view of the Supreme Court decision, to refer to the decisions of the various High Courts on the subject, but nevertheless it may be mentioned that a similar view has been taken by some High Courts regarding the entrustment of functions under a variety of statutes, vide, for example, in re Kanchamreddi, AIR 1962 Andh Pra 322, T. D. Corporation v. State of Assam, AIR 1961 Assam 133 (FB) and the Management of Bararee Coke Plant v. Their Workmen, AIR 1968 Pat 133. The Assam case, it may be mentioned, was regarding the entrustment of functions under the Land Acquisition Act.

6. It was next urged on behalf of the petitioners that even if the functions under the Land Acquisition Act have been validly entrusted to the State Government, the discharge of those functions by the State Government should be in accordance with the provisions of the Land Acquisition Act and the State Government is not competent to alter the procedure prescribed by that Act. Elaborating this argument it was pointed out that the notifications under Section 4(1) in these petitions were published in the Uttar Pradesh Gazette and it was contended that since the purpose of the acquisition of land under these notifications is the purpose of the Union and since the Government of India is the primary functionary for action under the Act in relation to a Union purpose, the notifications ought to have been published in the Gazette of India and not in the Uttar Pradesh Gazette.

I am not impressed by this argument. Had the notifications been issued by the Government of India, no doubt they ought to have been published in the Gazette of India but since they have been published by the State Government, it is the State Gazette in which they could be published. It may be mentioned that Section 3(39) of the General Clauses Act, 1897, defines 'official Gazette' or 'Gazette' as meaning the Gazette of India or the official Gazette of a State and Section 4A of that Act provides, inter alia, that the definition of 'official Gazette' in Section 3 shall apply, unless there is anything repugnant In the subject or context, to all 'Indian laws', which expression, as defined in Section 3(29) of that Act, would include the Land Acquisition Act as well. In my opinion, Section 4(1) of the Land Acquisition Act requires the notification to be published in the Gazette of India if it is actually published by the Government of India but it will be sufficient compliance with the provisions of that section, where the functions under that section have been entrusted to the State Government, if the State Government publishes the notification in the State Gazette.

7. The next ground of attack was that acquisition of lands under the two notifications was for an identical purpose and formed parts of a single scheme and two separate notifications for different parcels of the land to be acquired cannot be justified, particularly as the urgency notification invoked the urgency provisions, while the ordinary notification pursued the ordinary course of law, thereby making discrimination between the landholders affected by the urgency notification and the landholders coming under the ordinary notification. In reply, the learned Chief Standing Counsel and the learned Standing Counsel for the Union of India pointed out the necessity of issuing two different notifications; while the plots covered by the urgency notification are agricultural plots without any pucca structures thereon, the plots included in the ordinary notification fell within the Abadi and permanent constructions stand thereon; in the circumstances it was not possible to apply the urgency provisions to the plots under the ordinary notification.

To my mind, the explanation is satisfactory and the issue of two different notifications is justified and there is a valid ground for not applying the urgency provisions in the ordinary notification and applying them in the urgency notification. It may be mentioned that the Air Force Station at Gorakhpur is essential for the purposes of border security and the Government have considered it imperative that accommodation for the married officers of the Air Force should be provided speedily, particularly as the question has been hanging fire since long.

8. The next argument was that large tracts of vacant land and forest lands are available in the vicinity and the Government could utilise the requisite area out of these lands and there was no adequate reason for the Government acquiring the specific plots in dispute, thereby uprooting the various petitioners and other land-holders of the plots concerned. It may be mentioned that no plea of mala fides has been spelt out in the petitions and it is not for the Courts to investigate the question as to why the Government selected particular lands to accomplish the public purpose in view. However, the learned counsel for the petitioners argued that since alternative land was available the acquisition of the plots in dispute was a colourable exercise of the power.

My attention was invited to the decision of H. C. P. Tripathi, J. in Raja Ram v. National Co-operative Housing Society, Civil Misc. Writ No. 4305 of 1967, D/-7-8-1970 (All) in which acquisition of land for a Housing Society has been invalidated. In that case, however, the reason forquashing the acquisition proceedings was that there was no genuine need of land for the Society to provide housing accommodation to its members. It has, no doubt, been observed that it was incumbent on the authorities to see that no other land in the vicinity was available for providing a building site to the members of the Society before they could think of acquiring the land of the petitioners; it has also been observed that depriving a person of his small piece of land which is the only source of his livelihood for providing building site to another person can hardly be declared a public purpose. The facts of the present case are distinguishable. As already observed the Air Force Station at Gorakhpur has strategic importance and provision for accommodation for the Air Force personnel achieves a larger purpose than the provision for accommodation for the general public as was the position in the aforesaid case. The counter-affidavits filed on behalf of the opposite parties have satisfactorily explained why they could not make use of the vacant sites and forest lands in the neighbourhood for the purpose in view.

9. The last argument advanced on behalf of the petitioners is that the provisions of Section 4(1) of the Land Acquisition Act are not fully complied with inasmuch as the Collector has not caused the public notice of the substance of the notification to be given at convenient places in the locality. It is fairly conceded on behalf of the opposite parties that such public notice has not been given. In Khub Chand v. State of Rajasthan, AIR 1967 SC 1074, which was a case under the Rajasthan Land Acquisition Act, 1953, Section 4(1) of which is identical with Section 4(1) of the Land Acquisition Act, 1894, the Supreme Court held that the provision as to issue of such public notice was mandatory.

Learned counsel for the opposite parties, however, contended that the Rajasthan Act is different from the provisions of the Land Acquisition Act, 1894, inasmuch as Section 5 (2) of the Rajasthan Act no more exists in the Central Act. This difference, in my opinion, does not affect the proposition laid down by the Supreme Court. Section 4(1) of the Land Acquisition Act, 1894, contains like the Rajasthan Act, mandatory provisions regarding the issue of such public notice. No doubt, reference has been made to Section 5(2) of the Rajasthan Act also in the discussion, but the Supreme Court has even before considering that Section, observed :--

'The provisions of statute conferring power on the Government to compulsorily acquire lands shall be strictly construed. Section 4 in clear terms says that the Collector shall cause public notice of thesubstance of such notification to be given at convenient places in the said locality. The provision is mandatory in terms. (Para 6)'

It was next urged that the Supreme Court was dealing with the case in which the urgency provisions were not applied and where urgency provisions have been applied the requirement of public notice ought to be regarded as directory. I am unable to see any force in this argument. A provision in the statute cannot be construed as mandatory in certain situations but directory in some other situations. Apart from that, what weighed with the Supreme Court was that the public notice was intended to give notice of the power under Section 4(2) to enter upon the land to be acquired and this power is exercisable also when urgency provisions are applied. The proposition laid down by the Supreme Court is all-embracing and not subject to any exceptions. That being so, the public notice contemplated by Section 4(1) ought to have been given as prescribed.

10. However, the failure to give public notice would not vitiate the notification under Section 4(1) itself. It merely vitiates the subsequent proceedings taken in the case, namely, the declaration under Section 6 and the notice under Section 9 and these proceedings ought to be quashed. It may be mentioned that this question has been raised only in Writ Petition No. 2162 of 1970 and that too only in regard to the urgency notification. The subsequent proceedings to be quashed would thus be those taken pursuant to the urgency notification.

11. Although the contention that the requirements of Section 4(1) of the Land Acquisition Act have not been fully complied with has not been urged in Writ Petition No. 1659 of 1970, since that contention is being allowed in Writ Petition No. 2162 of 1970, the petitioners in Writ Petition No. 1659 of 1970 ought also to be given the benefit arising out of failure to comply with the provisions of the public notice prescribed by Section 4(1).

12. Some points of special interest to the petitioners in Writ Petition No. 2162 of 1970 have been urged in Paragraphs 8 and 9 of their Supplementary-Affidavit. It is alleged that in the case of four plots, the area mentioned in the notice under section 9 of the Land Acquisition Act is greater than the area mentioned in the notifications under Sections 4 and 6; it is alleged that plot No. 745/14/1-1/2, measuring 00.03 acres, has not been included in the notifications under Sections 4 and 6 but a notice in respect of this plot also has been issued under Section 9.

13. The position of the first mentioned four plots is as follows:--

(1) Plot No. 750/56/2 Part, has been mentioned in both Section 4 and Section 6 notifications but in the Section 4 notification the area is stated to be 00.28 acres, while in Section 6 notification its area is mentioned as 00.23 acres and section 9 notice seeks to take possession of 00.28 acres. The learned counsel for the Union of India contended that in Section 6 notification the area is misprinted as 00.23 acres instead of 00.28 acres but as Section 6 notification stands no more than 00.23 acres can be acquired from this plot. The importance of this question, however, does not survive since Section 6 notification is being quashed.

(2) Plot No. 745/14/2 is stated to admeasure 00.05 acres in both Section 4 and Section 6 notifications but in Section 9 notice the area of this plot is described as 00.12 acres. This obviously is a clerical mistake as the area of the plot is 00.05 and not 00.12 acres. There is no question of a larger area being taken into possession when possession of this plot is taken. This position also does not survive as Section 9 notification is being quashed.

(3) Plot No. 162/1 Part, is shown to be as 00.24 acres in Section 4 notification as well as in Section 6 notification. The grievance of the petitioners cannot be appreciated, if smaller area out of this plot is to be taken possession of.

(4) Plot No. 148 Part is 00.01 acres in area in both Section 4 and Section 6 notifications but it is said that 06.01 acres out of plot No. 148 are included in Section 9 notice. This cannot obviously be done but the question loses its importance as Section 9 notification is being quashed.

14. As regards plot No. 745/14/1 1/2 it is said that this plot is different from plot No. 745/14/1/1 part, described as measuring 0.10 acres in Section 4 and Section 6 notifications. If so, Section 9 notification regarding this plot would not be valid. The question is of no importance now that the notice is being quashed.

15. The result is that both the petitions are allowed only to the extent that the proceedings taken by the opposite parties in pursuance of the urgency notification under Section 4(1) of the Land Acquisition Act, dated 9th March, 1970, including the corresponding notification under Section 6 of the said Act and the notices under Section 9 are hereby quashed. The writ petitions otherwise are dismissed. No order as to costs.


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