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Hausila Bux Singh Vs. State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberWrit Petn No. 1029 of 1973
Judge
Reported inAIR1977All474; 1977CriLJ84
ActsLand Acquisition Act, 1894 - Sections 5A and 5A(2)
AppellantHausila Bux Singh
RespondentState of U.P. and anr.
Appellant AdvocateSahir Ahmad, Adv.
Respondent AdvocateU.C. Srivastava, Adv.
DispositionPetition partly allowed
Excerpt:
.....the notification was bad in..........is no doubt true that the recommendation of the land acquisition collector is not binding on the government. the government may choose either to accept the recommendation or to reject it, but the requirement of the section is that when a person's property is proposed to be acquired, he must be given an opportunity to show cause against it. the fact that the collector is not the authority to decide the objection does not exonerate him from his duty to hear the objector on the objection and make the recommendation. further it was observed :-- (at p. 1870 of air) 'the failure of the land acquisition collector to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. as we said, the.....
Judgment:

T.S. Misra, J.

1. By a notification dated 7-12-1972, under Section 4 of the Land Acquisition Act, certain plots of land mentioned therein were sought to be acquired for a public purpose, namely, construction of godown and allied buildings. The petitioner holds plots Nos. 28, 29, 30, 33, 34, 35, 36, 37, 41, 42, 43, 44 and 45 having an area of 3.176 acres. He filed an objection, dated 27th December, 1972, before the Collector under Section 5-A of the Act, a copy of which is Annexure 2 to the writ petition. Thereafter, a declaration dated 17th July, 1973, under Section 6 of the Act, was issued that the plots of land mentioned therein were required for the aforesaid public purpose. This was followed by a notice dated 10th September, 1973, under Section 9 of the Act. The petitioner then filed this petition under Article 226 of the Constitution on 14th September, 1973, for the quashing of the aforesaid notification under Section 4 of the Act, the declaration under Section 6 of the Act and the notice under Section 9 of the Act. He also claimed for a mandamus commanding the opposite parties not to acquire the land of the petitioner or take possession of the same. The petition has been resisted on behalf of the opposite parties.

2. The principal ground of attack is that the petitioner was not given any opportunity whatsoever by the Collector of hearing or tendering evidence in sup-port of his case. In the counter affidavit it is not stated that, the petitioner was given any opportunity of adducing evidence or of hearing. In para. 10 of the counter affidavit it is stated that there was no such point in the objection filed by the petitioner for which the petitioner was required to give evidence. Hence there was no necessity to call the petitioner for the production of any evidence. The reasons for coming to that conclusion are also stated in para. 10 of the counter affidavit. We have to see whether there had been any non-compliance of the provisions of Section 5-A of the Act and if so, what would be its effect.

Sub-section (2) of Section 5-A of the Act reads:--

'Every objection under Sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, (either make a report in respect of the land which has been notified under Section 4, Sub-section (1) or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government). The decision of the appropriate Government on the objections shall 'be final.'

3. It is by now well settled that the proceedings before the Collector under Section 5-A of the Act are quasi-judicial. The Collector is required to send his recommendation to Government on the basis of his finding together with the record of the proceedings for the ultimate decision by the Government. Rules have been framed with regard to the proceedings under Section 5-A of the Act, vide notification No. 7918/1-A-501, dated 19th November, 1923, Rule 1 says that :--

'The right of the objector under Clause (2) of Section 5-A shall extend not only to making a written objection but also to adducing evidence, if he so desires, in support of his objection.'

Rule 3 requires that the Collector shall cause a notice to be served on the objector to appear before him in person or by a duly authorised representative on a specified date and, to produce the evidence, if any, on which he relies. Notice of the hearing and the enquiry shall be given by the Collector to the responsible officer of the department of Government or of the local authority on whose behalf it is proposed to acquire the land, and the latter, if he desires to be heard or to adduce evidence in support of the proposal to acquire the land, shall be permitted to do so either in person or through a duly authorised representative. This rule is obviously mandatory. Rule 7 says that the Collector after hearing all the objections and recording a memorandum of the evidence produced in support thereof and in support of the proposal to acquire the land and after making further enquiry, if he thinks fit, shall submit the case for the decision of the Local Government together with the record of the proceedings held by him and a report containing his recommendation on the objections. This rule envisages a hearing of the objector by the Collector. In fact Section 5-A(2) in its turn requires the Collector to give the objector an opportunity of being heard. The requirement of giving an opportunity to the objector of being heard is, therefore, mandatory. The scope of Section 5-A(2) of the Act came to be considered by the Supreme Court in Shri Mandir Sita Ramji v. Governor of Delhi (AIR 1974 SC 1868). It was laid down therein that the power to hear the objection under Section 5-A is that of the Collector and not of the appropriate Government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it, but the requirement of the section is that when a person's property is proposed to be acquired, he must be given an opportunity to show cause against it. The fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to hear the objector on the objection and make the recommendation. Further it was observed :-- (at p. 1870 of AIR)

'The failure of the Land Acquisition Collector to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. As we said, the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the recommendation ..... The observation of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the Judges cannot afford to be wiser.'

4. Applying these principles to the facts of this case, we find that the petitioner had filed his objection under Section 5-A of the Act alleging inter alia, that the land in question contained graves of his ancestors. The case set up by the opposite parties in the counter affidavit is that keeping in view the grounds of objection, taken under Section 5-A of the Act, it was not necessary to give an opportunity to the petitioner to aduce evidence in support of his objection. The petitioner has stated that he was not given an opportunity of being heard. The opposite parties do not repudiate this allegation in their counter-affidavit. It is also not the case of the opposite parties that they had given any notice to the petitioner after receiving the objections from him that he may adduce evidence, if he so liked, and that he would be heard on a particular date. The petitioner had of course not asked for any opportunity of adducing evidence. Therefore, it was not necessary for the Collector, in the instant case, to give any notice to the petitioner to adduce evidence in support of his objections but it was mandatory that the petitioner should have been given an opportunity of hearing. This is the requirement of not only the rules referred to hereinabove but also of Section 5-A(2) of the Act. This mandatory requirement, in the instant case, was not complied, with. Hence the impugned declaration made under Section 6 of the Act and the notice under Section 9 are vitiated so far as the plots of land belonging to the petitioner are concerned,

5. This takes us to the notification issued, under Section 4 of the Act. It was urged on behalf of the petitioner that the land was not, acquired for a public purpose and, therefore, the notification was bad in law. We are not impressed by this argument. We have gone through the notification under Section 4 of the Act, a copy of which is annexure D to the counter affidavit. It states that the land was sought to be acquired for a public purpose, namely, construction of a godown and allied buildings. This acquisition was not sought to be made for any company. Obviously, it was sought to be made for the purpose of the Government and, therefore, for a public purpose.

The said notification under Section 4 was not attacked on any other ground before us. In our view, the impugned notification under Section 4 of the Act does not suffer from any illegality.

6. In the result, the petition is, allowed in part. We quash the declaration dated 17th July, 1973 published under Section 6 of the Land Acquisition Act (copy of which is Annexure D to the counter affidavit) and the notice under Section 9 of the Act in so far as they relate to the lands in respect of which the petitioner had filed his objection under Section 5-A of the Act and direct the Collector to enquire into the said objection of the petitioner after giving an opportunity to him of being heard and thereafter making necessary recommendation to the Government. The Government will proceed further in the light of its decision on the recommendation. In the circumstances of the case we make no order as to costs.


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