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Gur Dayal And Others v. State Of Uttar Pradesh And Others Opposite Parties.
Structured Summary of the Opinion
Factual and Procedural Background
This petition under Article 226 of the Constitution of India was filed by Gur Dayal and 41 others seeking writs (mandamus, certiorari or other appropriate writ, order or direction) to restrain respondents—the State of Uttar Pradesh, the Administrator, Municipal Board, Lucknow, and the Land Acquisition Officer, Lucknow Improvement Trust—from continuing acquisition proceedings and to quash orders that purported to be issued under Section 9(3) of the Land Acquisition Act, 1894.
The factual matrix (as admitted by the parties) is that the State issued a Section 4 notification on 26-9-1946 covering 793 acres of village Mahanagar-Rahimnagar, and purported to exclude the application of Section 5-A by use of sub-section (4) of Section 17. A downstream Section 6 notification dated 23-11-1946 covered 335.75 acres of village Mahanagar; another Section 6 notification was later issued on 26-6-1948 in similar terms. The Governor directed action under sub-section (1) of Section 17 in respect of land described as waste or arable land.
Subsequently, notices under Section 9(3) (Annexures D.1 to D.10) were issued to petitioners Nos. 1–11 between 20‑22 May 1958, calling upon them to make claims for the land and properties being acquired. Survey operations in the locality led other petitioners (Nos. 12–42) to apprehend similar action. The petitioners challenged the notices and the validity of the earlier notifications insofar as they dispensed with compliance with Section 5-A.
Legal Issues Presented
- Whether the notifications under Sections 4 and 6 of the Land Acquisition Act are valid insofar as they dispense with an enquiry under Section 5-A where the land in question consists of Abadi sites (occupied or constructed land) rather than waste or arable land.
- Whether a notification under sub-section (4) of Section 17 (purporting to dispense with Section 5-A) can lawfully apply to land that is not waste or arable, including Abadi sites with constructions.
- Whether the subsequent notices issued under Section 9(3) (Annexures D.1–D.10) are liable to be quashed because the earlier Section 6 notification was issued without holding the enquiry required by Section 5-A.
- Objections to maintainability and delay: whether a joint petition by 42 persons is maintainable, and whether the petition is barred by delay in challenging the notifications published many years earlier.
Arguments of the Parties
Petitioners' Position
- The petitioners sought writs restraining further acquisition proceedings and sought quashing of the notices issued under Section 9(3) and the orders under which those notices were issued.
- They asserted (and the respondents admitted) that notices and survey operations had been carried out and that constructions stand on the lands in question (i.e., the lands are Abadi sites, not waste or arable lands).
- They relied on the contention that where land is not waste or arable, the enquiry required by Section 5-A could not be dispensed with and therefore the notifications dispensing with that enquiry were invalid.
Respondents' Arguments
- The respondents challenged maintainability on the ground that a joint petition by 42 persons was not maintainable.
- They also argued that the notifications under Sections 4 and 6 had been published many years earlier and the petitions were therefore barred by delay.
- Learned counsel for respondent No. 2 (Municipal Board) drew attention to practical difficulties the Municipal Board would face if the notifications were quashed directly rather than by implication.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court's reasoning proceeds in focused steps, directed to the narrow legal question necessary for granting relief to the petitioners:
- Characterisation of the land: The court accepted (on the admitted facts) that the land in question is Abadi land with constructions (not waste or arable land), including land on which petitioners Nos. 1–11 have constructions and land of petitioners Nos. 12–42 that is likewise not waste or arable.
- Statutory requirement of Section 5-A: After the incorporation of Section 5-A, an enquiry by the Collector (or Land Acquisition Officer) and submission of a report to the appropriate Government is required before a Section 6 notification can lawfully be issued. Section 5-A may be dispensed with only in cases of urgency where sub-section (1) of Section 17 applies and a direction under sub-section (1) of Section 17 is published in the Official Gazette.
- Scope of Section 17(1) and Section 17(4): Sub-section (1) of Section 17 and, by extension, sub-section (4) (which dispensed with Section 5-A in the earlier drafting), relate expressly to waste or arable land. Action under Section 17(1) can be taken only in respect of waste or arable land and not in respect of Abadi sites with constructions. Therefore the benefit of dispensing with Section 5-A cannot extend to Abadi land under the language of those provisions as they stood when the notifications were issued.
- Effect of the U.P. Amendment (1954): Although Section 17 was amended by the Land Acquisition (U.P. Amendment) Act, 1954 to add sub-section (1-A) allowing the Collector to take possession of land other than waste or arable land, sub-section (4) of Section 17 was not correspondingly amended. The court concluded that because sub-section (4) was not amended, the statutory enquiry required by Section 5-A still had to be held for lands that would be covered by the new sub-section (1-A). Consequently, the 1954 amendment did not validate the earlier notifications that had dispensed with Section 5-A for non-waste lands.
- Invalidity of the offending parts of notifications: The court held that the second clause of the Section 4 notification (which purported to dispense with an enquiry under Section 5-A for non-waste land) was invalid to the extent it dispensed with the enquiry for land that was not waste or arable. Similarly, the Section 6 notification issued in respect of land which was not waste or arable was issued without the Section 5-A enquiry and was therefore invalid to that extent.
- Consequence for Section 9 proceedings and notices: Because there was no valid Section 6 notification in respect of the non-waste/Abadi land, the Collector could not validly proceed under Section 9 nor take possession on the basis of the invalid portion of the notification. Thus the Section 9(3) notices (Annexures D.1–D.10) issued to petitioners Nos. 1–11 were liable to be quashed.
- Maintainability and delay objections: The court acknowledged that strictly speaking a joint petition by 42 persons may not be maintainable, but found that at this stage it would be pointless to require deletion of names because any relief (if allowed) would operate for all petitioners named in respect of the same land. On delay, the court noted that respondents had not taken steps under Section 9 for many years, and the petitioners reasonably waited until steps to dispossess them were actually being taken; the petition was filed within days of the service of notices, and any delay was condonable.
- Relief framing and practical considerations: The court preferred to quash the invalid parts of the notifications (i.e., to limit the effect of the notifications to waste or arable land) so as to avoid practical difficulties for the Municipal Board that might arise if notifications were quashed in a blunt manner. The court clarified that respondents Nos. 2 and 3 should proceed only with respect to waste or arable land, and if they wished to acquire other land they must apply to the appropriate Government and follow the law (including the Section 5-A enquiry).
Holding and Implications
Holding: The petition is allowed. The court quashed the notices under Section 9(3) (Annexures D.1 to D.10 to the affidavit) issued to petitioners Nos. 1–11 and declared that the notifications under Sections 4 and 6 of the Land Acquisition Act are valid only insofar as they apply to waste or arable land and invalid insofar as they purport to apply to other land (including Abadi sites with constructions).
Direct consequences and directions:
- The Section 9(3) notices issued to petitioners Nos. 1–11 (Annexures D.1–D.10) are quashed and the respondents are directed not to take any further proceedings with respect to those notices.
- The earlier notifications under Sections 4 and 6 retain legal force only for waste or arable land; they are invalid to the extent they dispense with the requirement of an enquiry under Section 5-A for non-waste/Abadi land.
- The respondents are advised to proceed only in respect of waste or arable land; if they seek to acquire land which is not waste or arable, they must approach the appropriate Government and comply with statutory procedures (including Section 5-A) in accordance with law.
- The court overruled the maintainability objection for pragmatic reasons and found any delay in challenging the notifications to be excusable in the circumstances.
- Costs were awarded on parties (the opinion records "Costs on parties").
Broader implications: The opinion does not purport to set out any new general precedent beyond the resolution of the statutory questions in this case; the ruling is confined to invalidating portions of the notifications that dispense with Section 5-A for land that is not waste or arable and to quashing the specific Section 9(3) notices issued to petitioners Nos. 1–11.
Disposition: Petition allowed.
1. This is a petition under Article 226 of the Constitution of India, by Gur Dayal and 41 others for the issue of a writ of mandamus, certiorari or any other appropriate writ, order, or direction to restrain the respondents, namely, the State of Uttar Pradesh, the Administrator, Municipal Board, Lucknow, and the Land Acquisition Officer, Lucknow Improvement Trust, Lucknow, from continuing tile proceeding for the acquisition of houses and land mentioned in the notices purporting to he under S. 9(3) of the Land Acquisition Act, 1894, and to quash the orders under which these notices were issued. In view of a few material questions involved in the case which are favourable to the petitioners it is not necessary to refer to all the facts which have been given by the parties in their affidavits, nor is it necessary to make a reference to the various documents annexed by them to their affidavits. For example, it is not necessary to express any opinion as to whether the land being acquired could or could not be transferred to the Municipal Board for carrying out the scheme known as Lucknow Municipal Board Mahanagar Housing Scheme, and whether the purpose of the scheme can be deemed to be a public purpose.
2. In the present case, notices were issued with regard to land which can be treated as Abadi sites on which constructions of petitioners Nos. 1 to 11 stand. The land was not a waste or arable land and for that reason the compliance of provisions of S. 5-A could not be dispensed with. It is on this ground that the notices shall be quashed. When the land in question cannot be acquired without holding a proper enquiry under S. 5-A of the Land Acquisition Act, it will not be necessary to consider the other question, namely, whether the land was being acquired for a public purpose. It is for this reason that I am confining myself to only such facts which can justify the grant of a writ in favour of the petitioners.
3. There is virtually no controversy on the material facts of the case. All the petitioners are residents of village, Mahanagar-Rahimnagar which is a Hadbasti village in the vicinity of the city of Lucknow, situate on the Lucknow-Faizabad road to its north. On 26-9-1946 the State Government issued a notification under Section 4 of the Land Acquisition Act notifying that the land of 17 villages, as detailed therein, was needed for a public purpose, namely, construction of Government buildings by the Public Works Department. 793 acres land of village Mahanagar-Rahimnagar was included in the notification. It was further notified under sub-s. (4) of S. 17 that the provisions of S. 5-A of the Act shall not apply to the acquisition proceeding. No enquiry, as contemplated by S. 5-A, was conducted and it was on 23-11-1946 that a notification under Section 6 of the Land Acquisition Act was published with regard to only 335.75 acres of land of village Mahanagar.
4. The Governor at the same time acted under the provisions of sub-s. (1) of S. 17 of the Act and directed the Deputy Commissioner of Lucknow to take possession of land, being waste or arable land, mentioned in the schedule, on the expiry of the period of notice mentioned in sub-s. (1) of S. 9. This land, or part thereof has already been acquired. Another notification under S. 6 with regard to the remaining land was issued on 26-6-1948 and it was worded in the same manner as the earlier notification of 23-11-1946.
5. It was in pursuance of the letter notification that the Land Acquisition Officer, respondent No. 3, issued notices, Annexures D. 1 to D. 10 to the affidavit, calling upon the petitioners Nos. 1 to 11 to put forward their claim for the land and properties being acquired. These notices were served on the petitioners between May 20, 1958 and May 22, 1958. The respondents conducted survey operations in the locality, which gave an apprehension to petitioners Nos. 12 to 42 that similar action may be taken against them for taking possession of their houses and Abadi sites.
6. The petitioners have given details with regard to the notices and the survey operations in para 15 of the affidavit and this part of the assertion was admitted by the respondents. The Court can, therefore, proceed with the assumption that steps are being taken for taking possession of houses and Abadi sites of the petitioners, and notices had already been issued to petitioners Nos. 1 to 11 and after survey operations notices would have been issued to the other petitioners also, had they not approached this Court.
7. Since after the incorporation of Section 5-A of the Land Acquisition Act it is necessary for the Collector or the Land Acquisition Officer to hold an enquiry and to submit a report to the appropriate Government before a notification under S. 6 can be issued. The enquiry under S. 5-A can be dispensed with in cases of urgency where the appropriate Government is of opinion that the provisions of sub-s. (1) of S. 17 are applicable, and a notification to that effect is published in the Official Gazette. Sub-section (1) provides that in cases of urgency, whenever the appropriate Government so directs, the Collector may, even though no award has been made, on the expiry of 15 days from the publication of the notice mentioned in S. 9(1), take possession of any waste or arable land needed for public purposes or for a Company. Action under sub-section (1) of S. 17 can thus be taken only with regard to waste or arable land and not Abadi sites on which constructions stand.
8. The provisions of sub-s. (4) of S. 17 can be applied only to such land to which the provisions of sub-s. (1) are applicable. I am not making a reference to the scope and the enforcement of the provisions of sub-s. (2) of S. 17 and similar powers which can be exercised with regard to the land covered by the sub-section, as they relate to land required by the Railway Administration for certain specified purposes. In the present case, the land was being acquired by the State Government for construction of residential, quarters and not for any of the purposes contemplated by sub-s. (2) of S. 17. In other words, the enquiry under S. 5-A can be dispensed with in cases of urgency when only waste or arable land is needed for a public purpose. Such an epquiry cannot be dispensed with where the land needed for a public purpose is not waste or arable land but is Abadi land on which constructions stand.
9. Section 17 was amended under the Land Acquisition (U.P Amendment) Act, 1954, when sub-s. (1-A) was added to S. 17 after sub-s. (1). Under sub-s. (1-A) the Colletcor can take possession of land other than waste or arable land. But as sub-s. (4) was not correspondingly amended, the enquiry contemplated by S. 5-A has to be held with regard to land which could be covered by new sub-s. (1-A) of S. 17. The amendments made under the Land Acquisition (U.P Amendment) Act, 1954, cannot, therefore, in any way affect the invalidity of the notifications under Ss. 4 and 6 in question.
10. As already mentioned above, it is the admitted case of the parties that notices under S. 9(3) in question were issued with regard to land which was not waste or arable. In fact constructions are standing on the land. The land belonging to the petitioners Nos. 12 to 42 is also not waste or arable land. Such land was not covered by the provisions of sub-s. (4) of S. 17 and consequently, at the stage of notification under S. 4, or shortly thereafter, the compliance of the provisions of S. 5-A of the Act could not be dispensed with. In other words, the second clause of the aforementioned notification under S. 4 is invalid to the extent it dispensed with the holding of an enquiry with regard to land which was not waste or arable.
11. The afore-mentioned notification under section 6 with regard to land which was not waste or arable was admittedly issued without holding an enquiry under S. 5-A of the Act. This was in clear disregard of the provisions of the Act, and on this ground this notification made under S. 6 shall also be invalid to this extent. When no valid notification was issued under S. 6 with regard to the above land, the Collector could not proceed under S. 9 of the Act, nor can he take possession on the basis of the invalid portion of the notification.
12. The respondents challenged the maintainability of the petition on two grounds: firstly, that a joint petition by 42 persons is not maintainable and secondly, the notifications under Ss. 4 and 6 were challenged after an inordinate delay. Strictly speaking, a joint petition by all the petitioners was not maintainable, but the present is not the stage to call upon the petitioners to delete the names of those who could not join in the present petition.
13. Whether the petition of one or all is allowed shall have the same effect as the respondents shall not be in a position to take further acquisition proceedings against any of the petitioners, of course with regard to the above land. In other words, no useful purpose would be served by passing any order with regard to the first objection with regard to-the filing of a joint petition by 42 petitioners. This part of the objection is, in these circumstances, being over-ruled.
14. The notifications under Ss. 4 and 6 were published many years back, but the respondents themselves did not take any steps under Section 9 of the Land Acquisition Act nor did they make any attempt to dispossess the petitioners. In the circumstances, the petitioners were properly advised not to challenge the notifications soon after their publication but to approach this Court, when attempts were being made to enforce the scheme by dispossessing them (petitioners). The present petition was moved within a few days of the service of the notices. In other words, there was no delay in the presentation of the petition. In any case, the delay is such which can be condoned.
15. The next point for consideration is whether this Court should quash those parts of the notifications under Ss. 4 and 6 of the Act which are invalid, that is, relating to land which is neither waste nor arable, or to grant a relief on the lines sought for in the petition. I am of opinion that a writ be issued merely to quash the invalid parts of the notifications; but the learned counsel for respondent No. 2 brought to my notice the difficulties in which the Municipal Board shall be placed if the notifications are quashed directly and not by implication.
16. The effect of the Writ to be issued in the case will be the same, that is, the notifications under Ss. 4 and 6 shall for all practical purposes be invalid in so far as the land, which is not waste or arable, is concerned. But in view of the contention raised on behalf of the respondent No. 2 I would grant the relief on the lines sought for in the petition itself. I would however, like to make it clear that respondents Nos. 2 and 3 shall be advised to proceed only in respect of waste or arable land and if they desire to acquire land, which is not waste or arable land, they should move the appropriate Government to take action in accordance with the law.
17. To sum up, the notifications under Ss. 4 and 6 are valid only to the extent that they apply to waste or arable land, and are invalid to the extent of other land. As the Land Acquisition Officer has at present issued notices under Section 9(3) of the Land Acquisition Act against petitioners Nos. 1 to 11 only, these notices alone are being quashed. No further action ‘has yet been taken against the petitioners Nos. 12 to 42 and for this reason and also because no specific relief was sought for, no order is being issued with regard to these petitioners. It is expected that the respondents shall not take any further steps with regard to the land of petitioners Nos. 12 to 42 which is not waste or arable land. The petition is hereby allowed and the notices under S. 9(3), Annexures D. 1 to D. 10 to the affidavit, are quashed. The respondents are further directed not to take any further proceeding with respect to these notices. Costs on parties.
DD/V.B.B
18. Petition allowed.
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