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Battan Singh Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 4252 of 1981
Judge
Reported inAIR1983P& H297
ActsLand Acquisition Act - Sections 4, 4(1), 4(2), 5-A and 17(4)
AppellantBattan Singh
RespondentState of Punjab and ors.
Cases ReferredNarinderjit Singh v. State of U. P.
Excerpt:
.....article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - if such publication in the locality is not made, the notification in terms of section 4(1) of the act will be legally bad irrespective of the fact that the applicability of the provisions of section 5a has been dispensed with under section 17(4) of the act at the time the notification under section 4(1) was issued. i am not impressed by this contention as well. she has also averred that the site..........thereof in the locality.6. the learned counsel for the petitioner has argued that the defence camp ground land measuring 6.65 acres, adjacent to s. d. o. (civil's) office can conveniently be utilized after getting it transferred from the central government for the construction of tehsil and judicial complex etc. the argument proceeds that if this area is found short, then the land adjacent thereto should be acquired. the government is not justified in acquiring the land covered by notification (annexure p-1) for this purpose, which is comparatively away from the main road. the notification (annexure p-1) should be set aside on this ground. i am not impressed by this contention as well. the s. d. o. (civil), nawanshahr, in her written statement has averred that the defence camping ground.....
Judgment:
ORDER

1. The Government published notification dated 28th May, 1981 in Government Gazette on 5th June, 1981(Annexure P-1) under Section 4 of the Land Acquisition Act relating to the acquisition of 16 Acres 6 Kanals 4 Marlas of land in Nawanshahr, District Jullundur, for the construction of Tehsil and Judicial Complex including Telephone Exchange, Post Office Building and residential quarters for the staff.

The land of the petitioner admeasuring 14 Kanals 6 Marlas bearing Khasra No. 1814 Min. and 1822/1 is included in the notification (Annexure P-1). The petitioner has assailed the said notification in the present writ.

2. The learned counsel for the petitioner has argued that the substance of the notification (Annexure P-1) published in the Gazette on 5th June, 1981, was published by beat of drum in the locality on 23rd June, 1981. The local publication was highly belated and the notification is liable to be quashed on this ground.

3. The contention of the learned counsel for the State is that the petitioner filed objections under Section 5A of the Land Acquisition Act within the statutory period, which were disposed of. The petitioner, therefore, cannot justifiably assail the notification (Annexure P-1) on the ground that the local publication of the notification was belated.

4. The Sub-Divisional Officer (Civil), Nawanshahr, has averred in the return filed by her on behalf of the respondents that the petitioner was duly informed about the notification (Annexure P-1) and he filed objections within a period of 30 days and as such no violation of mandatory provisions of the Land Acquisition Act has occurred. It was held in Mara Naicker v. The Special Tehsildar (Land Acquisition) Harijan Welfare, Pollachi, Coimbatore District, (1970) 1 Mad LJ 347, that so long as a notice under Section 4(1) of the Land Acquisition Act has actually been served on the petitioner, it cannot be said that the petitioner was prejudiced on hurt by non-publication of the substance of the notification at convenient places in the locality as contemplated by Section 4(1). In Gopal Singh v. State of Rajasthan, AIR 1964 Raj 270, it was held that the language of Section 4(1) shows that it casts a duly on the Collector to cause public notice of substance of the Govt. notification to be given at convenient places in the locality where the land, which is sought to be acquired, is situated. Issue of the public notice is very necessary, so that those persons, who are interested in the land which is sought to be acquired, may be able to file their objections under Section 5A. It is also necessary to enable the employees of the Government to enter upon the land, make necessary survey and find out if it is suitable for the propose for which it is sought to be acquired. It is only after such a public notice is issued that it becomes lawful for the officers to proceed under Section 4(2). In the absence of such a notice, they are likely to find themselves in difficult situation if their entry on the land is resisted by persons who are owners or occupiers of the land. In a case where persons interested in the land come to know of the notification and they file their objections within time and the objections are decided by the Government under S. 5A, absence of a public notice may not be considered a fatal defect for vitiating further proceedings, but the same view cannot be taken in a case where persons interested in the land are unable to file their objections under Section 5A on account of the absence of a public notice. In State of Mysore v. V. K. Kangan, AIR 1975 SC 2190, it was held (at p, 2193) :

'.... ... .... If public notice as required by Section 4 of the Act was not given and that would per se vitiate the notification under Section 4, the appellant should have challenged its validity within a reasonable time of the publication of the notification. The respondent knew of the notification and filed objection under Section 5A of the Act. In these circumstances we see no reason to accept the admission of counsel ... ...'

In Bishna v. State of Punjab, 1980 Pun LJ 510, a Division Bench of this Court, held that where objections by interested persons under Section 5A of the land Acquisition Act were filed within time in spite of the delay and representations were duly considered by the Authority, the delay in publication of the notification in the locality did not cause any prejudice and as such they were not entitled to challenge the notification under Section 4 of the Act merely on the ground that the same was published in the locality under undue delay. A contrary view taken in Akhara Brahm Duta Amritsar v. State of Punjab, (1978) 80 Pun LR 425, was overruled.

5. The learned counsel for the petitioner has argued that the view taken in Bishna's case (1980 Pun LJ 510)(supra) is not correct as it runs counter to the view taken in Narinderjit Singh v. State of U. P., AIR 1973 SC 552. I am not impressed by this contention. It was held in Narinderjit Singh's case (supra) that the mere fact that the applicability of the provisions of Section 5A has been dispensing with the provisions of Section 4(1). The provisions of Section 4(1) cannot be held to be mandatory in one situation and directory in another. Section 4(1) cannot be contemplate any distinction between those proceedings in which in exercise of the power under Section 17(4) the appropriate Government directs that the provisions of Section 5A shall not apply and where such a direction has not been made dispensing with the applicability of Section 5A. The ratio of this Supreme Court authority is hardly applicable to the facts of the instant case. The publication of the notification under Section 4(1) of the Act is necessary in the locality. If such publication in the locality is not made, the notification in terms of Section 4(1) of the Act will be legally bad irrespective of the fact that the applicability of the provisions of Section 5A has been dispensed with under Section 17(4) of the Act at the time the notification under Section 4(1) was issued. The object of the publication of the notification in the locality is also to enable the employees of the Government to enter upon the land, make necessary survey and find out if it is suitable for the purpose for which it is sought to be acquired. It is only after such local publication is made that it becomes lawful for the officers to proceed under Section 4(2) of the Act. In the instant case local publication of the notification in terms of Section 4(1) was made on 23rd June, 1981. The petitioner has not denied this fact. He wants to take advantage of the delay in local publication of the notification for getting it quashed, irrespective of the fact that he admittedly filed objections under Section 5A of the Act, which were duly disposed of. It is, therefore, clear that the petitioner cannot justifiably press the ratio of Narinderjit Singh's case (AIR 1973 SC 552)(supra) for getting the notification (Annexure P-1) quashed on the ground that it local publication was delayed. This apart, Narinderjit Singh's case (supra) was noticed by the Division Bench of this Court in Bishna's case (1980 Pun LJ 510)(supra) and it was held that the view taken in the latter was not in conflict with the former. In the result, the petitioner cannot assail the notification (Annexure P-1) on the ground of delay in the publication thereof in the locality.

6. The learned counsel for the petitioner has argued that the defence camp ground land measuring 6.65 Acres, adjacent to S. D. O. (Civil's) Office can conveniently be utilized after getting it transferred from the Central Government for the construction of Tehsil and Judicial Complex etc. The argument proceeds that if this area is found short, then the land adjacent thereto should be acquired. The Government is not justified in acquiring the land covered by notification (Annexure P-1) for this purpose, which is comparatively away from the main road. The notification (Annexure P-1) should be set aside on this ground. I am not impressed by this contention as well. The S. D. O. (Civil), Nawanshahr, in her written statement has averred that the Defence Camping Ground land available adjacent to the S. D. O. (Civil's) Office measures only 6.65 Acres, whereas the requirement for the Tehsil and judicial Complex etc. is about 16 Acres. She has further averred that the present side (covered by Annexure P-1) has been selected after considering all the various aspects by a high level site selection committee consisting of Financial Commissioner (Revenue) Punjab; Commissioner, Jullundur Division; Deputy Commissioner and Superintending Engineer/Executive Engineer (PWD), and also keeping the future requirement of the Government in mind. She has also averred that the site covered by Annexure P-1 is better suited for the purpose of building offices and residential quarters of the officials. About the Military Camping Ground, she has specifically averred that it is lying vacant and is available at market value. The negotiations to buy this land earlier had not borne fruit and the Selection Committee approved the land covered by notification (Annexure P-1). In view of these averments, there is hardly any scope to hold that the Government was not justified in acquiring the land in dispute. There is nothing to suggest that the decision of the Selection Committee in selecting the land in dispute for acquisition was in any way mala fide.

7. In the result, the writ fails and is dismissed with no order as to costs.

8. Petition dismissed.


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