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Adarsh Nagar Co-operative Housing Society Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Petn. No. 2705 of 1973
Judge
Reported inAIR1981All130
ActsLand Acquisition Act, 1894 - Sections 4, 9, 17 and 17(1); Constitution of India - Article 226
AppellantAdarsh Nagar Co-operative Housing Society
RespondentThe State of U.P. and ors.
Appellant AdvocateG.P. Dixit, Adv.
Respondent AdvocateS.M. Tripathi, Adv.
DispositionPetition dismissed
Excerpt:
.....waste nor arable - held, section 17 not applicable. - - sudden change of course for which the land was sought to be acquired was for the development of an area for industrial and residential purposes it could not, barring exceptional circumstances, be taken to be a case where summary inquiry under sec 5-a of the act could be abrogated. suppose in a case like the present one, in the interest of proper defence of the country and in the prevailing circumstances, the government is of the view that the air force personnel have to be kept free from anxiety in regard to the residential problem of their family and that if residential quarters for the use of their family by a particular date are not constructed it is likely to affect the moral of such personnel and as such it is expedient to..........present writ petition. 2. three submissions were made by counsel for the petitioner-- (1) that the land sought to be acquired was neither waste nor arable and consequently section 17(1) of the act could not be applied nor could the requirements of section 5-a thereof be abrogated; (2) that no notice under section 9 of the act was issued to the petitioner; and (3) that it was not a case of urgency and on this ground also neither section 17(1) of the act could be applied nor could the requirements of section 5-a thereof be abrogated. 3. coining to the first submission it would be seen that the land sought to be acquired according to the counter-affidavit, is bhumidhari land. there is no averment that there is any construction on the said land. in this view of the matter it is apparent that.....
Judgment:

N.D. Ojha, J.

1. Adarsha Nagar Coop. Housing Society Ltd., Kanpur, the petitioner, is a society registered under the U.P. Co-operative Societies Act, 1965. Certain plots purchased by this society and owned by it were sought to be acquired by the respondents. A notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act) was accordingly issued on 8th Jan., 1973, a copy where of has been filed as Annexure D to the writ petition. This notification indicates that the public purpose for which the land was sought to be acquired was 'construction of residential quarters for the Married Air Force Personnel'. This notification also stated that since the matter was one of urgency the provisions of Section 5-A of the Act will not be applicable. On the other hand the provisions of Section 17(1) of the Act were applied. Subsequently on 23rd Jan., 1973 a notification under Section 6 of the Act was issued. It is these two notifications which are sought to be quashed in the present writ petition.

2. Three submissions were made by Counsel for the petitioner-- (1) that the land sought to be acquired was neither waste nor arable and consequently Section 17(1) of the Act could not be applied nor could the requirements of Section 5-A thereof be abrogated; (2) that no notice under Section 9 of the Act was issued to the petitioner; and (3) that it was not a case of urgency and on this ground also neither Section 17(1) of the Act could be applied nor could the requirements of Section 5-A thereof be abrogated.

3. Coining to the first submission it would be seen that the land sought to be acquired according to the counter-affidavit, is bhumidhari land. There is no averment that there is any construction on the said land. In this view of the matter it is apparent that the land comes within the category of arable land. At this place we may point out that in paragraph 13 of the writ petition it has been stated that there are construction over plots Nos. 1086 and 1087. These two plots are, however, not sought to be acquired and as such the averments made in regard to these two plots are not to be considered. We accordingly find no substance in the submission that Section 17(1) of the Act could not be applied because the land was neither waste nor arable.

4. Coming to the second submission it would be seen that in the counter-affidavit it has been stated in paragraph 12 thereof that notices under Section 9 of the Land Acquisition Act were issued and served on Shri Ramesh Chandra in whose name the land sought to be acquired stood recorded in village papers. Paragraph 4 of the rejoinder affidavit indicates that Ramesh Chandra is the Secretary of the petitioner society and his name was ordered to be entered in village papers in that 'capacity. In this view of the matter the assertion that no notice under Section 9 was served on the petitioner cannot be accepted.

5. We now come to the last submission made by counsel for the petitioner, viz. that this being not a case of urgency S 17(1) of the Act could not be applied and the provisions of Section 5-A thereof were erroneously abrogated. In support of this submission considerable emphasis was laid by counsel for the petitioner on the decision of the Supreme Court in Narayan v. State of Maharashtra : [1977]1SCR763 . It was urged that the purpose for which the acquisition was sought to be made in Narayan's case (supra) was 'development and utilisation of said land as a residential and industrial area'. On its basis it was urged that since the purpose for which the petitioner's land was sought to be acquired was also construction of residential quarters for married Air Force personnel, the purpose was almost analogous to that of Narayan's case and since in that case it was held that Section 17(1) of the Act had wrongly been applied the same view deserved to be taken in the instant case also. Having heard counsel for the parties, we however, find it difficult to accept this submission on the facts of the instant case. In Narayan's case (supra) the main question which came up for consideration was as to on whom did lie burden to prove whether it was a case of urgency or not. In paragraph 28 of the report it was held that the original or stable onus laid down by Section 101 and Section 102 of the Evidence Act cannot be shifted by the use of Section 106 bf the Evidence Act, although the particular onus of proving facts and circumstances laying especially within the knowledge of the official who formed the opinion which resulted in the notification under Section 17(4) of the Act rests upon that official. It would further be seen that in that case as it apparent from paragraph 12 of the report which contains a quotation from the judgment of the High Court the petitioner had 'stated in the petition more than once that the urgency clause had been applied without any valid reason'. The reply to the averment in this behalf stands quoted in paragraph 8 of the report. That was a case in which notwithstanding the fact that there was specific assertion made more than once that the urgency clause had been applied without any valid reason the authority acquiring the land did not come forward with the material on the basis of which it could be said that it was a case of urgency. Reliance was then placed by counsel for the petitioner on certain observations made in paragraphs 39 and 40 of the report where an illustration was given of urgency, viz. sudden change of course for which the land was sought to be acquired was for the development of an area for industrial and residential purposes it could not, barring exceptional circumstances, be taken to be a case where summary inquiry under Sec 5-A of the Act could be abrogated. In this connection it will be useful to notice that what was observed in the aforesaid two paras, was observations made on the facts of that particular case. The words 'on the apparent facts of the case' occurring towards the end of para. 40 of the report are of importance.

6. In Punjab Co-operative Bank Ltd. v. Commr. of Income-tax it was held that every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be expressions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found. In S.V. Kondaskar v. V.M. Deshpande : [1972]83ITR685(SC) it was held that in order to understand and appreciate the binding force of decision it is always necessary to see what were the facts of the case in which the decision was given and what was the point which had to be decided. It is in the light of these principles in regard to precedents that the observations relied on by counsel for the petitioner in Narayan's case (supra) have to be considered. The circumstances in which the observations aforesaid were made have already been noted above.

7. In Kailashwati v. State 0043/1978 : AIR1978All181 reliance was placed on Narayan's case : [1977]1SCR763 (supra) in support of the submission that the observations made in para. 39 of the report in that case were of general application. Division Bench of this Court did not accept this submission and held: --

'It is true that in para. 39 of the judgment the Supreme Court made observation to that effect but it would not be correct, in our opinion to say that the Supreme Court laid down exhaustively the list of cases where alone such a power could be exercised. The example taken was only illustrative. In Narayan's case before the Supreme Court, neither in the counter-affidavit filed on behalf of the acquiring body nor in the notification issued, there was any material showing that the State Government had applied its mind to the question that there existed urgency which warranted the elimination of the enquiry contemplated by Section 5-A of the Act ...................'

On a conspectus of the various authorities on the subject it was also held in Kailashwati's case (supra) that the court's power of interference in regard to the question of the existence and the extent of urgency which is a matter of subjective satisfaction of the Government is confined to the grounds of non-existence of material or non-application of mind or the ground of mala fide. We are in respectful agreement with the view taken in Kailashwati's case (supra) in regard to the interpretation of the decision of the Supreme Court in Narayan's case (supra) holding that it is not correct to say that the Supreme Court in the aforesaid case laid down exhaustively the list of cases where alone a power under Section 17(1) of the Act could be exercised and the example given in that case was only illustrative. Even otherwise it is not possible to lay down an inflexible rule that in no case where a land is sought to be acquired for residential quarters Section 17 can be applied. Suppose in a case like the present one, in the interest of proper defence of the country and in the prevailing circumstances, the Government is of the view that the Air Force personnel have to be kept free from anxiety in regard to the residential problem of their family and that if residential quarters for the use of their family by a particular date are not constructed it is likely to affect the moral of such personnel and as such it is expedient to construct residential quarters for the use of their family forthwith it cannot be said that even in that case, simply because the public purpose is for constructing residential quarters for the use of the families of the Air Force personnel, it would not be a case of urgency and Section 17 cannot be applied. The question as to what would constitute an urgency so as to attract the provisions of Section 17 of the Act is one which will have to be determined on the facts of each case.

8. Coming to the facts of the instant caseit would be seen that in the writ petitionthere is no averment that the satisfaction ofthe acquiring authority in regard to theurgency of the matter was based on no evidence or was mala fide or that there was noapplication of mind by the said authority. Itis true that a general ground being groundNo. 4 that 'it was not a case of urgency'has been taken but the ground cannot be asubstitute for a statement of fact in the writpetition. In the affidavit which has beenfiled in support of the writ petition paragraph 19 of the writ petition which containsthe grounds has been sworn on the basis oflegal advice. Even the ground as it is doesnot make out a case that the attack of thepetitioner is on any of the three groundsmentioned above viz. that the satisfaction inregard to the urgency was based on no evidence or was mala fide or was vitiated onaccount of non-application of mind. Asalready seen above even in Narayan's case : [1977]1SCR763 (supra) it has been heldthat the primary onus under Sections 101 and 102 of the Evidence Act lay on the petitioner who challenged a notification underthe Act applying Section 17(1) thereof onthe ground, that no case of urgency hadbeen made out. In this view of the matterthe respondents cannot be castigated for notsupplying the necessary material in thecounter-affidavit to indicate that a case forurgency had been made out so as to attractthe provisions of Section 17(1) of the Actand dispense with the preliminary enquirycontemplated by Section 5-A thereof. In thisconnection it would be useful to mentionthat in Narayan's case (supra) it was furtherheld:--

'... ... ... in such cases, the formation of an opinion is a subjective matter, as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take. They are excepted to know better the difference between a right or wrong opinion than Courts could ordinarily on such matters.'

Indeed the stand taken by the petitioner in the writ petition and the averments made therein make it clear that the main ground of attack on the question of urgency was that the land in dispute was neither waste not arable Paragraph 13 of the writ petition seems to be the only paragraph which contains some averment in regard to Section 17(1) of the Act. It has been stated therein 'that under Section 17(1) the State Government can acquire land, which is waste and arable. The petitioner asserts that the land in question is neither waste nor arable ....'

No other point has been pressed.

9. In the result we find no merit in this writ petition. It is accordingly dismissed with costs, and the interim order dated 25th April 1973, is vacated.


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