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Subedar Samandar Singh Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2260 of 1963
Judge
Reported inAIR1968P& H72
ActsLand Acquisition Act, 1894 - Sections 4, 5A, 6, 6(2), 17 and 17(4); Constitution of India - Article 226; Evidence Act, 1872 - Sections 114
AppellantSubedar Samandar Singh
RespondentState of Punjab and ors.
Appellant Advocate Ram Sarup and; Surinder Sarup, Advs.
Respondent Advocate C.D. Dewan, Deputy Adv. General,; C.B. Kaushik, Adv. for;
DispositionPetition allowed
Cases ReferredNandeshwar Prasad v. U. P. Govt.
Excerpt:
.....doubt that although it would be ideal to adopt such a course which would clearly particularise the land in the notification itself, wherever it is possible to do so, a notification under section 6 of the act cannot in my opinion be struck down on the solitary ground that it has omitted to mention the plot numbers or names of the owners of the land sought to be acquired. moreover the main notification under section 4 (annexure 'a') clearly states that action under section 17 should be taken in this case on the grounds of urgency and that 'provisions of section 5a will not apply in regard to this acquisition'.a declaration under section 17(4) of the act is therefore very much implied in the impugned notification and in my opinion it is not necessary to mention sub-section (4) of section 17..........trees. on december 30, 1961, the punjab government issued a notification under section 4 of the land acquisition act, 1894, hereinafter called the act, notifying the requirement of the government for acquiring 136.94 acres of land comprised in various villages including 15.71 acres in the petitioner's village gopikhera at public expense for constructing rampur distributary from r. d. 43500 to tail rule d. 129560 taking off at mile 9 fur. 4 and 40 yards left of agra canal. in the specification of the land notified, the khasra numbers or the names of owners of the particular land were not specified. the following description was, however, added to the entire specification:--'a strip of land 86,060 feet in length varying in width measuring 163.84 acres in area generally lying in the.....
Judgment:
ORDER

R.S. Narula, J.

1. The petitioner owns some land including the pieces comprised in Khasra No. 279 in village Gopipur Khera, Tehsil Palwal, District Gurgaon. In the said Khasra number he has planted some fruit trees. On December 30, 1961, the Punjab Government issued a notification under Section 4 of the Land Acquisition Act, 1894, hereinafter called the Act, notifying the requirement of the Government for acquiring 136.94 acres of land comprised in various villages including 15.71 acres in the petitioner's village Gopikhera at public expense for constructing Rampur Distributary from R. D. 43500 to tail Rule D. 129560 taking off at mile 9 fur. 4 and 40 yards left of Agra canal. In the specification of the land notified, the Khasra numbers or the names of owners of the particular land were not specified. The following description was, however, added to the entire specification:--

'A strip of land 86,060 feet in length varying in width measuring 163.84 acres in area generally lying in the direction of north-west to south-east as demarcated at site.'

A further direction was given in the notification to the effect that action under Section 17 of the Act shall be taken on the grounds of urgency and that provisions of Section 5A will not apply in regard to this acquisition. A copy of the said notification is Annexure 'A' to me writ petition.

2. This was followed by Punjab Government notification dated 12th January 1962 (Annexure 'B') under Section 6 of the Act, wherein the same description of the property was given and the same note was added to the effect that the land which was acquired had been demarcated at site. It was also mentioned in the notification that plans of the land may be inspected in the offices of the Land Acquisition Officer, Rohtak District, and of the Executive Engineer, Gurgaon Canal Division, Faridabad.

3. The petitioner's case is that subsequent to the notification under Section 6 of the Act, the course of the Rampur Distributary was changed by the Canal authorities and that though the original alignment marked 'A', 'B', 'C' in the plan (Annexure 'D') did not at all affect the land of the petitioner, a part of his land comprised in Khasra No. 279 wherein fruit trees have been grown was earmarked for acquisition in revised alignment denoted by the dotted line B to D in the plan (Annexure 'D'). Admittedly no fresh notification under Section 8 of the Act was issued by the State. The petitioner's son B. S. Lamba, who was serving in the Army, made a written representation against the revised alignment on 14th November 1963 on getting information about the said fact from the petitioner - The petitioner himself also submitted a representation. By letter dated 28th November 1963 (Annexure C') the petitioner's son was informed through the Secretary, Soldiers, Sailors and Airmen Board, Gurgaon (through whom Mr. Lamba had represented) that the alignment laid at site was as per latest orders of the higher authority and that the Executive Engineer, Gaunchi Drainage Division, Faridabad, was unable to change the alignment at that stage. It was added in the letter that notifications under Sections 4 and 8 of the Act had already been issued and even the award had been announced by the Land Acquisition Officer.

At that stage the petitioner Piled this writ petition on 9th December, 1963 under Articles 226/227 of the Constitution claiming an appropriate order or direction for quashing the last notification under Section 6 of the Act and the orders of the Government, dated 28th November, 1963 rejecting the representation of the petitioner's son. While admitting the petition on the next day, the Motion Bench (Mehar Singh J., as my Lord the Chief Justice then was, and Khanna J.) directed stay of digging operations and also dispossession of the petitioner ex parte. After hearing the respondents, however, Jindra Lal J. modified the ex parte stay order on 21st August 1964 so as to stay dispossession of the petitioner and the digging operations in his land only and permitted digging operations to be proceeded on the rest of the land.

4. Respondent No. 1 (State of Punjab) has filed a written statement dated nil supported, by an affidavit of the Executive Engineer, Faridabad Division Gurgaon Canal, Faridabad, dated 20th May 1964. According to the averments made in the State's return some of the petitioner's land was involved even in the original alignment and no change at all was made in the alignment of the proposed distributary after the issue of the notification under Section 6 of the Act. The State wants the Court to believe this the original alignment was never changed at any stage. Regarding the representation of the petitioner's son it has been stated in the return that it was duly considered and rejected on technical grounds'. Jagat Singh, respondent No. 4, has filed an affidavit dated 13th January, 1965, wherein it has been admitted that the alignment of the distributary was subsequently changed. Respondent No. 4 has averred that the distributary in question bifurcated his land also even under the latest demarcation. He has denied the allegation of the change in the alignment having been made due to the influence of Shri Rup Lal Mehta M.L.A., against whom such an allegation has been made in the petition. He has generally supported the impugned action of the State except that he has admitted the subsequent change in the alignment and has added that 'the petitioner was given opportunity to be heard and the new alignment was decided upon after giving him full opportunity.'

5. At the hearing of the petition Shri Surinder Sarup, learned counsel for the petitioner, has firstly contended that the notification under Section 6 of the Act (Annexure 'B') is liable to be quashed on the ground that it is impossible to identify the property acquired by the said notification from the particulars contained therein. According to the petitioner it was necessary either to mention the Khasra numbers of the plots of land involved in the acquisition or to mention the names of the owners or to give any other specification which would enable the persons concerned to identify the specified pieces of land which were sought to be taken over. He has relied on the judgment of Division Bench of Madhya Pradesh High Court in Iftikar Ahmed v. State of Madhya Pradesh, AIR 1961 Madh Pra 140, wherein it was held that although at the stage when a notification under Section 4 of the Act is issued, the Government is not in a position to say definitely which particular piece of land is proposed to be taken, it is the particular land which should be specified in the notification under Section 6 of the Act. The notification which was struck down by the Madhya Pradesh High Court in that case merely stated that an area of 6.93 acres of land in Bhopal city was proposed to be acquired. It was held that the notification was vague as it did not show the particular land to be acquired and, therefore, the acquisition proceedings were rendered invalid by omission of specification of the particular land.

6. The counsel has then referred to the Division Bench judgment of Gujarat High Court in Motibhai Vithalbhai v. State of Gujarat, AIR 1961 Guj 93, wherein it was held that even in cases of urgency substantial compliance with the provisions of Sections 4 and 6 was necessary. Reliance was lastly placed in this connection by the learned counsel for the petitioner on the judgment of the Allahabad High Court in Ram Sewak v. State of U.P., AIR 1963 All 24. The Allahabad High Court held in that case that though in a notification under Section 4 it is not necessary that in every case the numbers of the plots or the names of the persons, whose land is sought to be acquired, should be given, it is certainly necessary that such particulars are given in the notification under Section 6 which would indicate to the public and to the persons concerned as to which property is being acquired. Jagdish Sahai, J., who gave the judgment of the Court, held in Ram Sewak's case, AIR 1963 All 24 that where a notification under Section 6 suffers from the defect of want of particularity, inasmuch as no particulars indicating the lands sought to be acquired are given in it, such a notification is not in accordance with law.

7. Sub-section (2) of Section 6 of the Act, provides that a declaration issued under Subsection (1) of that section must state (1) the district or other territorial division in which the land is situate; (2) the purpose for which it is needed; (3) the approximate area of the land; and (4) where a plan has been made of the land, a notice to the effect that such a plan may be inspected, It is, therefore, clear that there is no statutory requirement for the Khasra or plot numbers of the land or of the names of the owners being specified in Sub-section (2) of Section 6 of the Act. In the circumstances there is no doubt that although it would be ideal to adopt such a course which would clearly particularise the land in the notification itself, wherever it is possible to do so, a notification under Section 6 of the Act cannot in my opinion be struck down on the solitary ground that it has omitted to mention the plot numbers or names of the owners of the land sought to be acquired. At the same time, there does not appear to be any doubt about the fact that the very object of particularisation of the land envisaged by Sub-section (2) of Section 6 of the Act would be completely negatived if it is humanly impossible to locate the precise land, which is covered by the notification, on reading the notification itself and, if necessary, or inspection of the plan if the same has been prepared and if the notification mentions the public place where it can be inspected. Mr. C. D. Dewan, learned Dy. Advocate General for the State, says that sufficient particularisation of the land is available in the notification in so far as it mentions that the land has been demarcated at the site. He has referred me to the judgment of learned Single Judge (Gurdev Singh J.) dated 28th September 1964, in Kartar Singh v. State of Punjab Civil Writ No. 79 of 1964 (Punj), wherein the same attack was repelled by the Court on almost the same ground as now urged by Mr. Dewan in the following words :--

'It is true that under Section 6 the particulars of the land sought to be acquired nave to be given but on reference to the impugned notification itself we find that though it does not mention the various Khasra numbers nor the exact area which is to be acquired from each of the fields owned by the petitioners and others, yet it states that the area sought to be acquired is demarcated at the site and shown on the annexed plan. There is nothing whatsoever in the petition or in the affidavit filed in support of it to indicate that the petitioners did not know what part of the fields owned by them was intended to be acquired. It is not alleged that no demarcation of the land was made at the site nor is there any complaint that the plan attached to the notification was vague or unhelpful in determining the exact land which was the subject-matter of acquisition proceedings'.

8. The situation in the present case is substantially similar. Not only has the petitioner not stated in the affidavit that he could not locate the land covered by the impugned notification but his case is that he definitely knew of the land covered by the original notification which did not include his land comprised in Khasra No. 279 and that the subsequent change has brought his land into the portion sought to be covered by the distributary. I am bound by the judgment of the learned Single Judge in Kartar Singh's case, Civil Writ No. 79 of 1964, D/-28-9-1964 (Punj), and would have referred this case to a larger Bench if it had become necessary to obtain a more authoritative pronouncement in this connection. I am, therefore, bound to hold against the petitioner on the first point urged by him in view of the law laid down in Kartar Singh's case, Civil Writ No. 79 of 1964, D/-28-9-1964 (Punj). Nor is it necessary to refer the case to a larger Bench in the view I am taking of another point urged by the petitioner and in view of the further fact that an appeal under Clause 10 of the Letters Patent lies against a single Bench Judgment in a writ case as a matter of right.

9. There is no force even in the second contention of the learned counsel for the petitioner to the effect that by invoking Section 17 of the Act the petitioner has been deprived of a valuable right under Section 5A without strict compliance with Sub-section (4) of Section 17. The precise objection of the learned counsel is that the main notification does not specify whether it was Sub-section (1) of Section 17 which was invoked by Government or it was Sub-section (4) of Section 17 which was sought to be pressed into service. Reliance is placed on the judgment of the Supreme Court in Nandeshwar Prasad v. U. P. Govt. AIR 1964 SC 1217 wherein it was held that it is not necessary even where the Government makes a direction under Section 17(1) that it should also make a direction under Section 17(4) and if the Government gives a direction only under Section 17(1), the procedure under Section 5A would still have to be followed before a notification under Section 6 is issued. This point has not been taken in the writ petition. Respondent No. 1 had therefore no opportunity to reply to it. Moreover the main notification under Section 4 (Annexure 'A') clearly states that action under Section 17 should be taken in this case on the grounds of urgency and that 'provisions of Section 5A will not apply in regard to this acquisition'. A declaration under Section 17(4) of the Act is therefore very much implied in the impugned notification and in my opinion it is not necessary to mention Sub-section (4) of Section 17 when the declaration in terms thereof has been clearly made in the notification.

10. The allegations of mala fides of Shri Rup Lal Mehta cannot possibly be enquired into as he is not a party to the case. Moreover both the respondents have denied the allegation of fact regarding any interference by Shri Rup Lal Mehta and there is no material on the record to substantiate those allegations. Respondent No. 4, in whose favour Shri Rup Lal Mehta is alleged to have interfered, is substantially supporting the petitioner on the main point on which the petitioner is likely to succeed. It does appear that the change in the alignment was effected by Government but such a course must be presumed to have been adopted on technical grounds, as suggested on the record before me and not on account of the mala fide interference of any outsider.

11. I, however, find great force in the last contention of Mr. Surrinder Sarup. It is stated by Mr. C. D. Dewan Deputy Advocate General, that if it could be admitted or proved that after the notification under Section 6 of the Act the alignment of the proposed distributary has been changed so as to include in the acquired property, the land of the petitioner which was not originally included in the notification the petition must succeed as the land which was not covered by the notification under Section 6 (Annexure 'B') cannot possibly be acquired without issuing a fresh notification under that provision.

12. The only question that remains to be decided is whether there has in fact been a change in the alignment of the distributary as indicated in the plan (Annexure 'D'), or in any other manner so as to necessitate acquisition of petitioner's land which was not included in the original notification. After a careful consideration of the matter I am inclined to think that the petitioner is correct in his allegation in this behalf and that there is no proper material to support the denial of the petitioner's allegation made in the written statement. Respondent No. 1, who has the relevant record of the case with him, has withheld the plan which is alleged to have been prepared before the publication of the notification under Section 6 of the Act and the final plan, according to which digging was commenced in December 1963. If those plans had been produced, it could have been conclusively found whether the allegation of the petitioner in this respect is correct or not. Respondent No. 1 i.e., State has deliberately withheld this evidence from the Court. Every possible presumption will therefore have to be raised against the State in this respect.

It is significant that in reply to the representation of the petitioner's son no such stand was taken and he was not told that there was no realignment. On the contrary, he was merely told that the alignment laid at the site was according to the 'latest orders of the higher authority'. If there had been no change in the alignment a much simpler reply would have been sent to the petitioner's son on the lines the State's written statement has now been filed. No value can be attached to the averments made in the written statement because the notification under Section 6 of the Act was issued by the Deputy Secretary to Government Punjab but the affidavit in reply has been sworn by the Executive Engineer, Irrigation Department. The Executive Engineer has not even stated that he had anything to do with the acquisition proceedings or was posted to the relevant office when the notification under Section 6 was issued. The return itself is not on affidavit. The affidavit supporting the return has not been sworn before any authority. There is no verification in the affidavit to show whether the allegations made In Para 3 of the affidavit about no change having been made in the alignment are true to the knowledge of the deponent or on information received by him or believed to be true. The certificate of the Magistrate is only to the effect that the contents of the deposition were declared before the Magistrate. It does not state that the Executive Engineer declared the contents of the statement on solemn affirmation or on oath or otherwise. In this state of affairs, and particularly in view of the withholding of the original plans by the State, no value can be attached to the repeated denials made by the State.

It is still more significant that respondent No. 4, against whom serious allegations have been made in the writ petition and for whose benefit the alleged change in the alignment is said to have been effected, has specifically admitted that the alignment was certainly changed but it is asserted that this was done after giving full opportunity to the petitioner. I am not oblivious of the fact that this Court has consistently tried to follow self-imposed restriction on the exercise of its extraordinary jurisdiction under Article 226 of the Constitution to the effect that the Court is normally loath to embark upon an enquiry into disputed questions of fact. This self-imposed restraint by the Court should not however encourage the State to try to obtain dismissal of a writ petition by merely denying a patent fact and trying to persuade the Court to believe that it is not true, without even a properly sworn affidavit of the relevant authority and by deliberately withholding admitted documentary evidence in its possession. To lay down an absolute rule to that effect in favour of the State would not only nullify the salutary safeguard provided in Article 226 of the Constitution but would really amount to amending the article. I would therefore hold that in a fit case this Court may appropriately be called upon to decide which of the parties is correct on a disputed question of fact, on which the very jurisdiction of the authority depends and when so called upon, the Court will not hesitate to perform the sacred duty enjoined on it by the Constitution to keep all authorities, tribunals and Courts under its jurisdiction within their respective bounds fixed by law. I have thought this to be a fit case for adopting such a course.

13. For the foregoing reasons I hold it tobe proved that the original alignment of theproposed distributary was changed after theissue of the notification under Section 6 of theAct and that therefore the land of the petitionercomprised in Khasra No. 279 situated in villageGopi Khera (which was not included in thenotification under Section 6) cannot be acquired under the notification dated 12th January1962, (Annexure 'B'). This writ petition is,therefore, allowed with costs against respondent No. 1 only and it is directed that the Stateshall not dispossess the petitioner of any portionof his land comprised in Khasra No. 279 invillage Gopi Khera, Tehsil Palwal, DistrictGurgaon, on the force of the impugned notification dated 12th January 1962 under Section 6of the Act. Counsel's fee Rs. 200.


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