Dau Dayal And Others v. State Of Uttar Pradesh And Others

Asthana, J.:— The petitioners are the tenure holders of plots No. 74, .99 acre in area and Nos. 58, 59 and 73, 2.6 acres in area situate in mauza Hamirpur, Pargana Hamirpur, district Hamirpur. It appears that the said plots lie almost in the abadi of Hamirpur Town. A Co-operative society known as the Co-operative Housing Society Limited has been formed by certain persons whose object is to construct residential houses for its members on no profit, no loss basis. The said society applied to the State Government to acquire land for it for the purpose of fulfilling its object of constructing houses. By a notification under sub-Sec. (1) of Sec. 4 of the Land Acquisition Act 1894 dated July 8, 1957 published in the Uttar Pradesh Gazette dated 13th July 1957, the Collector of Hamirpur notified for general information that the above said plot No. 74, .99 acre in area was needed for a public purpose. This notification against the heading ‘for what purpose required mentioned for construction of buildings by Co-operative Housing Society Limited, Hamirpur. A similar notification with regard to the abovesaid plots numbers 58, 59 and 73 dated 19-1-1957 was published in the Uttar Pradesh Gazette dated 19-1-1957. The Co-operative Society being a company within the meaning of Land Acquisition Act, proceedings were taken by the State Government under Part VII of that Act. On enquiries made by the Collector certain recommendations were made, a draft agreement as required by the provisions of Part VII was prepared and executed. Then in the Uttar Pradesh Gazette date 18-3-1961 the said agreements were published. In the gazette of the same date two notifications under Sec. 6 of the Land Acquisition Act were published, one in respect of plot No. 74, .99 acres in area, and the other in respect of plots numbers 58, 59 and 73, 2.6 acres in area. In these notifications it was declared that the land was needed for public purpose. There was no mention in either of the notification that the land was needed for a company. Again in both the notifications against the heading ‘for what purpose required’ it was mentioned “for the construction of building by Co-operative Housing Society Limited.” There is nothing on the record before me as to what further proceedings were carried on in regard to the acquisition. The petitioner filed the present writ petition on 15-2-1964 before this Court challenging the acquisition proceedings in regard to plot No. 74 and the other three plots numbers 58, 59 and 73. In paragraph 9 of the petition it was stated that the petitioners have received no notice under Sec. 9 of the Land Acquisition Act so far but the respondents, that is, the State of Uttar Pradesh and the Collector of Hamirpur, the Land Acquisition Officer and the Co-operative Housing Society Limited threatened to take the land of the petitioners in pursuance of the aforesaid acquisition proceedings. From these allegations in the petition it appears that the petitioners came to this Court when they found that the authorities were taking steps to disposes them. The acquisition has been challenged by the petitioners on the ground that the acquisition proceedings were wholly ultra vires of the Land Acquisition Act; that the acquisition was bad as the provisions of sub-Sec. (5) of Sec. 41 were not complied with; that the acquisition was neither for public purpose nor was it useful to the public, and it merely amounted to the compulsory transfer of the ownership of the land of the petitioners to some other private persons. Latter on an application was filed raising further grounds of law which has been granted. The further grounds which has been raised are that the notifications under Sec. 6 of the Land Acquisition Act show the acquisition of the land for public purpose and since no part of the compensation has come from the State the notifications were bad in law; that the acquisition in effect being for the company the provisions of Part VII of the Act not having been complied with, the acquisition was bad, and that the Collector had no power to issue a notification under Sec. 4 of the Land Acquisition Act, it was for the State Government to issue that notification, thus all the proceedings in regard to the acquisition are bad in law.

2. In the counter-affidavit which has been filed on behalf of the State it has been asserted that the land acquired was needed for the company, that is, for the Co-operative Housing Society Limited, Hamirpur, which is engaged in a work which would prove beneficial and useful to the general public. It is accepted by the State Government that whole of the amount of compensation would be paid by the said Society together with all the other expenses and costs incurred in connection with the acquisition proceedings. The suggestion that the notifications under Secs. 4 and 6 of the Act were ultra vires or invalid has been refuted. It is also asserted that all the necessary requirements of Part VII of the Land Acquisition Act have been complied with. On behalf of the Society in the counter affidavit it is asserted that in the housing scheme there is provision of a children park and a library and other amenities which would be useful to the public. A plea has also been raised in the counter-affidavit on behalf of the Society that the petition has been filed in this Court after undue delay and the petitioner is guilty of latches. A technical plea has also been raised that the petition is incompetent as it is not open to the petitioner to challenge two separate acquisitions by one writ petition. Some other assertions have also been made in the counter affidavit on behalf of the Society on the same line as those contained in the counter affidavit filed on behalf of the State.

3. I have heard Sri Daya Shankar Srivastava holding the brief of Sri S.C Khre on behalf of the petitioner, Sri V.K.S Chaudhry on behalf of the Co-operative Housing Society Limited, Hamirpur, opposite party No. 4 and Sri Gopi Nath, Junior Standing Counsel on behalf of the State, Collector of Hamirpur and the Land Acquisition Officer, Hamirpur, opposite parties 1, 2 and 3 respectively. Before I consider the material grounds of attack raised on behalf of the petitioner impugning the validity of the acquisition proceedings I think it proper to dispose of certain objections raised on behalf of the Co-operative Society, opposite party No. 4 which are of a preliminary nature.

4. It was contended that one petition was incompetent as the State had taken two separate proceedings for the acquisition of the lands of the petitioner which is borne out by two separate notifications issued under Sec. 4 of the Land Acquisition Act and corresponding separate notifications under Sec. 6 of that Act. The learned counsel for the petitioner conceded that two separate petitions ought to have been filed but submitted that in accordance with the practice followed in this Court at the time when this petition was filed the petitioners were advised to file one petition challenging both the acquisition proceedings inasmuch as the parties, the facts and the grounds on which the challenge was based the same in both the cases. The learned counsel to meet the technicality of the law as now laid down by this Court has further deposited court-fee stamp worth Rs. 50/- which has been accepted by me. Thus, the court-fee which has been paid now amounts to Rs. 100/- which is sufficient for two separate writ petitions. Since the case of the petitioner for challenging the acquisition proceedings separately taken by the Government is a common case I have dispensed with the formality of filing a separate petition. This objection on behalf of the opposite parties, therefore, is no longer effective.

5. As to the objection that the petition has been filed almost a year after the publication of the notifications under Sec. 6 of the Act and no sufficient cause has been made out explaining the delay, I am of the view that this objection has no substance. In such matters it should always be borne in mind that there is no rule of law laying down any period of limitation for filing of petitions under Art. 226 of the Constitution. The question of delay or latches is only one of the circumstances which this Court while exercising its discretion under Art. 226 of the Constitution takes into consideration. Again it may be observed that whether in a particular case the petitioner forfeits the exercise of discretion in its favour on account of latches or undue delay would depend on the peculiar circumstances of that case, nature of the executive action prejudicing its rights and the nature of the relief which this Court can give under Art. 226 of the Constitution. I am not aware of any hard and fast rule laid down in this respect by this Court or by the Supreme Court which is applicable universally in all circumstances. The learned counsel for the Society takes the starting point from the date of the publication of the notification under Sec. 6 of the Land Acquisition Act. The effect of a notification under Sec. 6 is that a declaration is made that the land is needed either for public purpose or for a company and nothing more. Though such a notification would cast a cloud on the future right of the person whose land is needed and to a limited extent effect his right of transfer or otherwise to deal with that land but it offers no impediment with his rights of property for keeping that land in his possession and enjoying its benefits. I do not think I can blame a citizen if he does not rush to the Court immediately or soon-after the publication of a notification under Sec. 6 of the Land Acquisition Act for it may even be withdrawn. After the publication of a notification under Sec. 6 of the Act many other proceedings as provided under the Act have to be gone into and completed before the title of the person affected is extinguished. The person whose land is the subject matter of such a notification can wait till his title is extinguished or till any overt action takes place on the part of the State or its officers amounting to interference with his rights of possession. As already pointed out above the petitioners have averred that though no notice under Sec. 9 of the Act has been served upon them the opposite parties threatened to disturb their possession on the disputed plots of land. It is clear from this averment that the petitioners came to the Court when they found that the opposite parties were ready to take overt action amounting to interference with his rights of property. It is not disputed by the learned Junior Standing Counsel that no proceedings under Sec. 9 of the Act had yet been completed in connection with the impugned acquisition. It is not a case in which recourse was taken to the provisions of Sec. 17 of the Land Acquisition Act requiring the Collector to take possession before announcing the award. Viewed from this point it can be said that when the petitioner came to this Court in February 1962 there was no actual interference with any of his rights of possession over the disputed plots and he could afford even to wait further till he was asked to deliver possession and that could not have been done till proceedings under Sec. 9 had been completed after service of notice to the petitioner which admittedly had not been done till February 1962 when this petition was filed. Moreover, it would be seen that under the provisions of the Land Acquisition Act the land acquired does not vest in the State or in the company till the stage is reached when the Collector under Sec. 16 of the Act gets the power to take possession of the land acquired which thereupon vests absolutely in the Government. The Collector is empowered to take possession only when he has made an award under Sec. 11 of the Act. No award was made admittedly under Sec. 11 of the Act in connection with the impugned acquisition even till February 1962 when this petition was presented before the Court. The title in the disputed plots still vested in the petitioner. He came to this Court in order to protect his rights, when he found that threat to his right of possession and quiet enjoyment was imminent and real. There is no material before me showing that earlier than few months before February 1962 any overt action was taken by the opposite parties which would have amounted to interference with any of the rights of possession of the petitioner in the disputed plots and he kept silent without doing any thing.

6. The learned counsel for the opposite party then put his argument on the footing that the petitioner seeks to have the impugned notifications under Sec. 6 of the Act quashed and therefore the petitioner ought to have approached this Court within a reasonable time of the publication of those notifications. The petition before me is actually not a petition bringing up the record of any case for being quashed by a writ of certiorari. The petitioner, in my opinion, can obtain effective relief without this Court actually quashing the impugned notifications. As far as I can see the use of the word ‘quash’ in respect of such notifications is not quite appropriate if the meaning to be given to that word in this connection is what it bears in the sphere of law of certiorari. It is sufficient for the petitioner to demonstrate before this Court that the notifications were illegal or bad in law and his rights in the disputed plots could not be extinguished or interfered with in pursuance of those notifications. The effective relief which he would get would be in the nature of mandamus or direction that the opposite parties shall not take any further action in pursuance of those notifications which have been found to be bad in law so as to effect the right and title of the petitioner in the disputed plots. Right of the petitioner would be effectively safeguarded if this Court issues a direction commanding the opposite parties not to take any further proceedings based on the impugned notifications under the Act and not to disturb the possession of the petitioner in respect of the disputed plots. The petitioner is entitled to protect himself from any threatened or future injury to his rights at the hands of the opposite parties on the basis of the impugned notifications which he contends are illegal and bad in law. Nothing therefore turns on the question that the petitioners seek to have the impugned notifications quashed and they have come to this Court for seeking that relief after undue delay. I, therefore, disagree with the contention of the learned counsel for the opposite party No. 4 that the petitioners are guilty of latches and should not be heard by this Court and this petition should be thrown out on that score alone.

7. The first contention which I would consider and which has been raised in support of the petition is that the notifications issued under Sec. 4(1) of the Land Acquisition Act are bad as they have been issued under the signatures of the Collector and not on behalf of the Governor under the signatures of a duly authorised Secretary of the Government. The answer to this is furnished by the amendment which has been made in sub-Sec. 1 of Sec. 4 of the Land Acquisition Act by the States of Uttar Pradesh by U.P Act No. 22 of 1954. The learned counsel for the petitioners does not dispute this. As far as acquisitions in this State are concerned it is permissible for the Collector to issue a notification under sub-Sec. (1) of Sec. 4 under his own signatures. But the learned counsel for the petitioners tried to contend that since the acquisition in this case was avowedly for a company Sec. 38 of the Land Acquisition Act applied and the State Government could not authorise the Collector to issue such a notification. This contention of the learned counsel for the petitioners is based on a misconception. Sec. 38 of the Act refers to sub-Sec. 2 of Sec. 4 and not to sub-Sec. 1 of Sec. 4. It only provides that in case the land is to be acquired for a company the appropriate Government can authorise an officer of the company to exercise those powers which an officer of the Government is empowered to exercise under sub-Sec. (2) of Sec. 4 of the Act. Sec. 38 does not affect the provisions of Sub-Sec. (1) of Sec. 4. Thus there is no substance in the first contention of the learned counsel for the petitioners.

8. The second contention in support of the petition was that the impugned notifications issued under Sec. 6 of the Act expressly show that the land was needed for a public purpose and therefore it was incumbent for the Government to meet the whole or a part of the compensation from Government funds, since it is admitted that whole of the amount for compensation would be payable by the Co-operative Society the notification is rendered bad in law and ought not to be given effect to. Reliance has been placed in this connection on the cases of Shyam Behari v. State of Madhya Pradesh A.I.R 1965 S.C 427. and Jhandulal v. State of Punjab A.I.R 1961 S.C 343.. There can be no doubt that the law declared by the Supreme Court in the two cases referred to and in some other cases which it is not necessary to mention, makes it a necessary condition for the validity of an acquisition for public purpose that the compensation amount either wholly or in part has to come out from the Government funds. In case the compensation either whole of it or any part is not made payable from the Government funds then the declaration that the land is needed for public purpose under Sec. 6 of the Land Acquisition Act would be bad in law.

9. But the real question for determination is whether the impugned notifications are notifications which contained a declaration that the land is needed for a public purpose or that they contained declaration that the land is needed for a company. By far the greater part of the time which has been spent in the hearing of this case was occupied at the bar on the interpretation to be put on the impugned notifications. It was strenuously contended by the Junior Standing Counsel and by the learned counsel for the opposite party No. 4 that the impugned notifications on a proper and reasonable reading of the same clearly showed that they declared that the land was needed for a company. In this connection the emphasis was laid on what was contained at the bottom of the notifications which showed the purpose for which the land was required as for the construction of building by the Co-operative Housing Society Limited. It was submitted that the purpose as mentioned in the latter part of this notification was sufficiently indicative of the intention of the Government that the land was needed for the Co-operative Housing Society Limited, no matter that in the main body that is in the earlier part of it public purpose was only mentioned and no reference was made to company. My attention has been drawn in this connection to a case decided by the Supreme Court, State of West Bengal v. P.N Taluqdar A.I.R 1965 S.C 646. and on the strength of that decision it was urged that in finding out the real object or the intention of the notification the court is entitled to bring to its aid other surrounding circumstances and particularly the agreement which was executed between the Government and the Company and the fact that it was published in the Gazette along with the impugned notification. It was said that if the agreement entered into between the State Government and the Co-operative Society which has been published for public notice in the Gazette along with the impugned notification under Sec. 6, are perused by any person there would be no scope for any doubt, whatsoever, that the land in question was needed for the company, that is, the Co-operative Society, opposite party No. 4.

10. In order to appreciate the various points involved in the arguments raised at the bar bye the learned counsel for the respective parties on this part of the case it is necessary to reproduce one of the impugned notifications as both the notifications which are under challenge are couched in similar language.

“Uttar Pradesh Gazette, March 18, 1961 (Phalguna 27, 1882 Saka Era) Part (I)

SAHAKARITA VIBHAG

March 8, 1961.

No. 922-C/XII-CA-25-57—With reference to notification no. 2782.VIII-8(56-58) dated July 8, 1957, issued by the Collector Hamirpur, under Sec. 4 sub-Sec. (1) of the Land Acquisition Act 1894 (Act I of 1894) the Governor (after considering the report made under Sec. 5-A sub-Sec. (2) of the said Act), is pleased to declare under Sec. 6 of the Act, that he is satisfied that the land mentioned in the schedule is needed for a public purpose and, under Sec. 7 of the Act, to direct the Collector of Hamirpur to take order for the acquisition of the said land.

SCHEDULE

District Hamirpur Pargana Hamirpur Approximate Acre 0.99 Mauza Hamirpur Area (Plot No. 74).

For what purpose required—For the construction of building by Co-operative Housing Society Ltd., Hamirpur.

Note:—A plan of the land may be inspected in the office of the Collector, Hamirpur.”

11. A cursory perusal of the above notification reveals two important characteristics, (1) it clearly declares that the land is needed for a public purpose and (2) there is absolutely no mention of the word ‘company’. ‘For what purpose required’ is a heading in the form as prescribed. Against that heading is mentioned, “For the construction of building by Co-operative Housing Society Limited”. A plain reading would show that the purpose which is mentioned, that is, for the construction of building by Co-operative Housing Society Limited, is the public purpose and it is with that object that the land is needed. On no cannons of interpretation without taking aid to extrinsic circumstances can it be said that for the words ‘for a public purpose’ occurring in the first part of the impugned notification one can read for the purpose of Co-operative Housing Society Limited. There is no warrant for transposing a part of the language used in the second part of the notification which has been mentioned above and read it into the first part of the notification. If in order to find out the meaning the transposition of the words is permissible than the whole clause which is mentioned in second part of the notification should be read in the earlier part. The notification will then read as that the land mentioned in the schedule is needed for the construction of building by Co-operative Housing Society Limited. The learned counsel for the opposite parties would like that no importance be attached to the words “for the construction of the building by” and only ‘the Co-operative Housing Society Limited’, should be taken due notice of. In the case of The State of West Bengal v. P.N Taluqdar decided by the Supreme Court the words used and the language of the notification which was the subject matter of consideration were entirely different. It was stated therein that the land was needed for a public purpose, namely, for the construction of staff quarters, hospital building and playground of Ramkrishna Mission at Narendrapur and further that it was needed for the aforesaid public purpose at the public expenses of the Ramkrishna Mission. Their Lordships of the Supreme Court characterised that notification as very clumsily worded and held that reasonably construed it clearly showed that the land was needed for the Ramkrishna Mission at Narendrapur which was a company within the meaning of the Land Acquisition Act. It would be noticed that the word ‘public purpose’ in the main body of the notification which contained the declaration was qualified and explained, that is, for the construction of staff quarters, hospital building and playground of Ramkrishna Mission and it was in that context that it was held that though the word ‘public purpose’ was used but it having been explained in the sense of construction of staff quarters, hospital building and playground of Ramkrishna Mission it would show that the land was needed for the Ramkrishna Mission for construction of the hospital and staff quarters etc. It was only to meet the argument which was raised before the Supreme Court on the words ‘public expenses’ occurring in the notification that their Lordships of the Supreme Court took recourse to an agreement executed between the State of West Bengal and Ram Krishna Mission in connection with the acquisition and having found that agreement showed that all the expenses for acquisition and payment of compensation were to be met by Ram Krishna Mission that the learned judges concluded that what the notification really meant was at the expenses of the Ramkrishna Mission and the use of the word ‘public’ was irredundant. I do not think that the case of State of West Bengal v. P.N Taluqdar relied upon by the learned counsel for the opposite parties is in any way helpful for interpreting the impugned notifications in the instant case. To my mind the case of Shyam Behari v. State of Madhya Pradesh decided by the Supreme Court is the proper guide for arriving at a correct decision in the instant case. In that case their Lordships of the Supreme Court did not take recourse to external aid, that is, to the agreements or any other circumstance to interpret the notification. The learned Judges emphasised the absence of any reference in the declaratory part of the notification indicating that the land was needed for a company or for the company to do any thing thereon. A comparison of the approach made by the learned Judges of the Supreme Court to the notifications which were the subject matter of the two cases, that is, the State of West Bengal v. P.N Taluqdar and Shyam Behari v. The State of Madhya Pradesh which have been relied upon by the respective parties brings into bold relief the circumstance which led the learned Judges of the Supreme Court in the case of State of West Bengal v. P.N Taluqdar to hold that the notification reasonably read showed that the land was needed for the Ramkrishna Mission which was a company. As I read those cases it appears to me but for the immediate use of the words, namely, “for the construction of staff quarters, hospital building and playground of Ramkrishna Mission at Narendrapur….”, explaining the words ‘public purpose’ which preceded it, the learned Judges of the Supreme Court would not have held that the language of the notifications reasonably construed amounted to a declaration of acquisition for a company. Contrasted to this it would be seen that the learned Judges of the Supreme Court in the case of Shyam Behari v. State of Madhya Pradesh repelled the argument raised in support of the validity of the notification that the purpose for which the land was needed as mentioned in the latter part of the notification clearly showed that it was for the Premier Refractory Factory. All I can say is that in the case of Shyam Behari v. State of Madhya Pradesh it could also be said with equal felicity that if any person read the agreement of the government with the Premier Refractory Factory Ltd. and the notification concerned there could have been no scope for any doubt that the mention of the Premier Refractory Factory in that notification was nothing but a reference to the Premier Refectory Factory Ltd. which had entered into an agreement with the Government and for whose need the land was sought to be acquired.

12. There is yet another consideration which appeals to me in arriving at the conclusion that the impugned notifications declared that the land was needed for a public purpose and they cannot be read as showing that the land was needed for a company, that is, the Co-operative Housing Society Limited, Hamirpur. The notification very well indicates that the Government regarded that the construction of building by the Co-operative Housing Society Limited, Hamirpur, was by itself a public purpose and with that end in view the Government needed the land for being put at the disposal of that Society for its building activities. It is conceded by the learned counsel for the opposite parties that in the first part of the notification there is absolutely no indication that the land sought to be acquired was to be vested in the Co-operative Housing Society. If that be so, I do not find any indication in the language used in the second part of the notification that the land sought to be acquired was to vest in the Co-operative Housing Society. The words used are:

“For the construction of building by Co-operative Housing Society limited”. As I have observed above the Government seemed to regard the construction of building by the Co-operative Housing Society Limited to be a public purpose by itself. The public purpose itself has to my mind made synonymus with the building activity of the Society. The second part of the notification which is relied upon only explains what the public purpose is. The approach, therefore, which has been made by the learned Judges of the Supreme Court in the case of The State of West Bengal v. P.N Taluqdar cannot apply to the language and the contents of the impugned notifications in the instant case. The above discussion constrains me to arrive at a conclusion that the declaration contained in the impugned notifications is that the land is needed for a public purpose and it cannot be read that the declaration in the impugned notifications is that the land is needed for a company. That being the position the ratio of the cases of Jhandulal v. State of Punjab and Shyam Behari v. State of M.P decided by the Supreme Court applies and the impugned notifications are invalid in law as no part of the compensation admittedly in this case is coming out from public funds.

13. The Junior Standing Counsel contended that the validity of the notification on the basis that no part of the compensation is payable by the State Government cannot be challenged as there is nothing in the notification to indicate that no part of the compensation is payable by the Government and it would amount to taking recourse to extraneous circumstances for striking down the notifications on that score. This argument appears to me devoid of all substance. The fact whether the compensation is payable by the State Government wholly or in part is not a matter of interpretation of the notification. It is an assertion of a fact by the petitioners and if it is not a fact it is open to the State Government to deny and assert that whole or a part of the compensation is payable by the State and the acquisition for public purpose is valid and good. In this case it has been asserted by the petitioner that it is the Housing Society who will pay the whole of the compensation and the expenses for requisition. This position has been admitted by the opposite parties. Thus there is factual material on record to establish that no part of the compensation is to come out from the public funds with the Government.

14. Since I have held above that the impugned notifications under Sec. 6 of the Land Acquisition Act are bad in law, the further proceedings under the Act for acquiring the disputed plots of the petitioners have no legal basis to stand upon. Since this is sufficient to dispose of this writ petition in favour of the petitioners, I do not think it necessary to examine other grounds raised in support of this petition.

15. It was also suggested that the petitioners in their petition have pleaded that the acquisition was for the Co-operative Housing Society and they are not entitled to turn back and argue that the notifications did not show that the land was needed for the company. I do not think I can read the allegations of the petitioners in their petition and the averments in the supporting affidavit in the light and in the manner in which they are being put by the learned counsel for the opposite parties. Those allegations or averments show that what the petitioners were saying was that in fact the acquisition was for the Housing Society and that is a fact. Now the question is whether the notification as it stood has fulfilled that object. That is a question of law and I do not see any reason why I should not allow such a contention to be raised is a ground for striking down the impugned notifications for as held above the declaration contained in them is that the land is needed for a public purpose and not for a company.

16. The result is that this petition succeeds. The opposite parties are directed not to take any further proceedings under the Land Acquisition Act, in pursuance of the impugned notifications and they are further directed not to interfere in any manner with the right and title of the petitioners on the disputed plots in pursuance of the proceedings under the impugned notifications. A further direction is also issued that the petitioners would not be dispossessed of the plots which were the subject matter of the two impugned notifications in pursuance of any proceedings on the basis of those notification. The petitioners would be entitled to costs. There would be only one set of costs.

Petition allowed.