Citation Codes

Equivalent Citations

citation codes

Case Number

Misc. Petn. No. 15 of 1959

Advocates

B.V. Shukla
S.B. Sen
Government Advocate for Respondents and 2 and R.S. Dabir and V.S. Dabir
for Respondent No. 3

Judges

T.C Shrivastava
P.K Tare, JJ.

Acts

Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act).
Section 4 produces under Section 23, clause
Act extending the provisions of Section 17
Sub-sections (1) and (4) of Section 17
Sub-section (1) of Section 17
Section 4, Sub-section (1)".
LAND ACQUISITION ACT

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Smart Summary

Judgment Summary — Shrivastava, J.

Factual and Procedural Background

This petition under Article 226 of the Constitution was filed by the petitioner, Iftikhar Ahmed, seeking quashing of notifications issued under Sections 4 and 6 and a declaration under Section 9 of the Land Acquisition Act, 1894, and a writ restraining the State Government from acting on those notifications and the declaration.

The petitioner is the lessee of three survey numbers totalling 6.93 acres in the City of Bhopal, the lease being from respondent No. 3 (Municipal Board, Bhopal). At the instance of respondent No. 2, the State Government (respondent No. 1) issued two notifications (Nos. 768-19130-VII-N and 76-19130-VII-N) under Sections 4 and 6 of the Act. The Section 4 notification is dated 23-12-1958 and was published in the Madhya Pradesh Gazette on 2-1-1959; the Section 6 notification is dated 3-1-1959 and was published in the Gazette on 9-1-1959.

The Section 4 notification stated the land was urgently required and, invoking Section 17(4) of the Act, declared that Section 5A would not apply; a special notice indicated that possession would be taken immediately. The stated purpose of acquisition was construction of a new slaughter house.

Legal Issues Presented

Whether the notifications under Sections 4 and 6 were properly authenticated and sufficiently particularised to identify the land sought to be acquired.
Whether acquisition of the land for construction of a new slaughter house constituted a "public purpose" and whether that question is justiciable.
Whether the State validly invoked urgency and Section 17(4) to dispense with application of Section 5A of the Act, and whether Section 17(1) (as to "waste or arable" land) applied.
What the legal consequences are if notifications under Sections 4 and 6 are vague or fail to identify the land (i.e., whether subsequent acquisition proceedings are void for want of jurisdiction).

Arguments of the Parties

Petitioner's Arguments

The notifications are not properly authenticated; different-dated notifications should have separate signatures and are therefore invalid.
The notifications are vague and do not give a sufficient description of the land to enable identification.
Construction of a new slaughter house is unnecessary and not a public purpose.
The matter is not urgent and the land is not "waste or arable" within the meaning of Section 17(1); consequently the State exceeded its powers in declaring that Section 5A would not apply, thereby depriving the petitioner of the right to show cause under Section 5A.

Respondents' Contentions

The grouping of notifications in the Gazette, with a single signature at the end of the series, is in accordance with usual practice and constitutes proper authentication.
The question whether the acquisition is for a public purpose is not justiciable (respondents contended this), though the court noted case law indicating otherwise.
The respondents asserted that construction of a new slaughter house was necessary because the existing facility was insufficient and insanitary, and the Government and local authority are the best judges of the needs of the population.
The Government relied additionally on Ordinance No. 3 of 1959 (published 1-1-1959) adding Section 17-A to extend Section 17 to building sites, to justify possession even if parts of the land had buildings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hemabai Framjee v. Secy. of State for India, ILR 39 Bom 279 : AIR 1914 PC 20	Principle that the decision of Government on existence of a public purpose is open to judicial review.	Cited to support that the question of public purpose is justiciable; court relied on this line of authority to examine public purpose despite the respondents' contention of non-justiciability.
Province of Bombay v. K. S. Advani, 1950 SCR 621 : AIR 1950 SC 222	Affirming that government decisions on public purpose can be subject to judicial review, especially where Article 31 restricts acquisition to public purpose.	Used with Hemabai Framjee to confirm justiciability and that Article 31 constraints render the issue examinable by courts.
Wali Mohd. v. Gyan Prakash, AIR 1954 Pat 399	Held that if the identity of the land cannot be ascertained, land acquisition proceedings are void.	Applied directly: court held defective (vague) notifications under Sections 4 and 6 rendered all subsequent proceedings void for want of jurisdiction.
Lachhmi Narain v. State of Uttar Pradesh, AIR 1957 All 816	Where land was mainly waste though with some scattered constructions, application of Sections 17(1) and 17(4) was not vitiated if action taken in good faith; built-up areas should be separated and left out when possession is taken.	Applied as authority that where part of the land is built upon, the Collector must demarcate and separate built-up areas before taking possession; court directed similar approach if possession were taken.
Natesa Asari v. State of Madras, AIR 1954 Mad 481	Held that existence of urgency (under Section 17) is a determination solely for Government and not subject to judicial review.	Cited and followed (along with Harihara Prasad) by the court as the correct interpretation: the existence of urgency cannot be challenged by the petitioner.
Harihara Prasad v. Jagannadham, AIR 1955 Andhra 184	Followed Natesa Asari in holding urgency determination is for Government.	Cited to reinforce the point that urgency under Section 17 is not open to challenge.

Court's Reasoning and Analysis

The court proceeded methodically through each challenged aspect and provided the following analysis based exclusively on the opinion:

Authentication:
The court rejected the petitioner's contention that the notifications were improperly authenticated. It accepted that multiple notifications appearing together in the Gazette with a single signature at the end of the series is a usual practice and that the signature applies equally to all notifications above. Therefore, the notifications were properly authenticated.
Public Purpose and Justiciability:
The court held that the existence of a public purpose is justiciable. It referred to Hemabai Framjee and Province of Bombay v. K. S. Advani to show that the Government's decision on public purpose can be reviewed by courts, especially given Article 31's restriction of acquisition to public purpose. On the facts, the court found construction of a new slaughter house to be necessary for maintaining food supplies to residents of Bhopal, and therefore a public purpose. The Government's additional reasoning about needing to spend allocated funds quickly was deemed irrelevant to the question, but other stated reasons (insufficiency and insanitary state of existing slaughter house) were adequate and, absent bad faith, the Government and local authority's judgment is ordinarily accepted.
Particularity of Notifications under Sections 4 and 6:
The court analysed the statutory and practical requirements for specificity in notifications. It noted that while at the Section 4 stage the Government may not be able to name the exact final parcel, the locality and reasonable particulars must be provided so affected persons can identify the lands under consideration. After insertion of Section 5A, interested persons have a right to object to land notified under Section 4(1); without specific details that right is illusory. Under Section 6 the requirement is even stricter because the declaration refers to "particular land" and is conclusive evidence that the land is needed for a public purpose.

The court found the notifications in the instant case deficient: they merely stated six acres in Bhopal City without adequate particulars. Reliance on a map at the Collector's office was insufficient because it placed an unreasonable burden on potentially affected persons to inspect the Collector's map. The court traced the vagueness to mechanical adherence to Forms I and II (which give limited particulars) and the department's failure to follow the Land Acquisition Manual instruction that the Collector add any further particulars necessary for better identification.
Consequences of Vagueness — Jurisdictional Defect:
The court emphasised that notifications under Sections 4 and 6 are essential "jurisdictional facts" which empower subsequent acquisition proceedings. A vague notification, the court reasoned, can have harmful consequences: for example Section 23 fixes market value for compensation as of the Section 4 notification date, so a vague Section 4 notice could improperly "freeze" values for any six acres in a city. Citing Wali Mohd. v. Gyan Prakash (that identity of land must be ascertainable), the court held the defective notifications rendered all subsequent acquisition proceedings void for want of jurisdiction.
Urgency and Section 17:
The court observed that Section 17(4) applies only where Section 17(1) is attracted. Section 17(1) requires that the land be "waste or arable" and that the case be urgent. The petitioner argued the land was not waste since he had levelled it at cost, constructed eight hutments for labourers and stored building materials. The court accepted that hutments are temporary but the occupied portion with hutments cannot be treated as waste land; other portions appear to be waste land. The court held Section 17(1) may apply to parts of the land, and the Collector must demarcate such land before taking possession.

Relying on Lachhmi Narain, the court accepted that where land is mainly waste but has scattered constructions, Sections 17(1) and (4) need not be vitiated if action is in good faith, but built-up areas must be separated and left out when possession is taken. Regarding urgency, the court cited Natesa Asari and Harihara Prasad to conclude that determination of urgency is a matter for the Government and is not open to judicial challenge; the court agreed with that interpretation.
Ordinance No. 3 of 1959 (Section 17-A):
The Government Advocate drew attention to the Ordinance adding Section 17-A to extend Section 17 to building sites. The court noted the Section 4 notification was published on 2-1-1959 but dated 23-12-1958, indicating the Government's opinion excluding Section 5A was reached before the Ordinance (published 1-1-1959) was promulgated; the court did not pursue this aspect further.

Holding and Implications

Core Ruling: The petition is allowed and the notifications under Sections 4 and 6 of the Land Acquisition Act, 1894, are quashed as being vague and insufficiently particularised; all subsequent acquisition proceedings based on those notifications are rendered void for want of jurisdiction.

Implications and immediate consequences:

The State Government is directed not to take any action for acquisition of the lands or taking possession thereof on the basis of the quashed notifications.
No order as to costs was made by the court in the circumstances of the case.
The security amount deposited by the petitioner shall be refunded.
Although the court found the acquisition to be for a public purpose on the facts (construction of a slaughter house), that finding did not cure the jurisdictional defect caused by vagueness of the notifications.
The opinion does not purport to lay down any broader new precedent beyond applying existing authorities (as cited) to hold that adequate particularity in Sections 4 and 6 notifications is jurisdictional; the direct legal effect is the invalidation of the acquisition proceedings in this case.

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Iftikhar Ahmed v. State Of Madhya Pradesh

JUDGMENT Shrivastava, J.

1. This petition under Article 226 of the Constitution has been filed by the petitioner Iftikhar Ahmed for quashing notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). The petitioner also seeks to quash the declaration issued under Section 9 of the Act and prays for a writ restraining the Slate Government from taking any action on those notifications and the declaration.

2. The petitioner is the lessee of three survey numbers totalling to 6.93 acres in the City of. Bhopal. The lease was taken by him from respondent No. 3 (Municipal Board, Bhopal). At the instance of respondent No. 2, the State Government (respondent No. 1) issued Notifications Nos. 768-19130-VII-N and 76-19130-VII-N respectively under Sections 4 and 6 of the Act. The first is dated 23-12-1958 and was published in the Madhya Pradesh Gazette on 2-1-1959.

The second is dated 3-1-1959 and was published in the Gazette on 9-1-1959. In the first notification, it was also stated that the lands were urgently required and so, in exercise of the powers under Section 17(4) of the Act, it was declared that the provisions of section 5a shall not apply. In the special notice served on the petitioner, it was stated that possession of the land would be taken immediately. The purpose for which the acquisition is being made is for constructing a new slaughter house.

3. The petitioner challenges the notifications on several grounds. It is contended that they are not properly authenticated and are vague, as they do not give description of the land sufficient to identify it. He states that the construction of a new slaughter house is not necessary and is not a public purpose. Further, he urges that the matter is not urgent and the land is not "waste or arable" land within the meaning of Section 17(1) of the Act. Therefore, the State Government exceeded its powers in declaring that Section 5A would not apply. The petitioner thus complains that Ee has been deprived of a valuable right to show cause against acquisition under Section 5A of the Act

4. The challenge of the notifications on the ground of improper authentication is without any substance. Several notifications appear together in the Gazette under the signature of the Under Secretary at the end of the series. The petitioner contends that the notifications are of different dates and each one should have separate signature of the authentication officer. We find that the notifications have been grouped together according to the usual practice and there is nothing wrong about it. The signature below applies equally to all the notifications above. We hold that the notifications have been properly authenticated.

5. On the question of the acquisition of land for a public purpose, the respondents contend that the issue is not justiciable. We need only refer tothe decisions in Hemabai Framjee v. Secy. of State for India, ILR 39 Bom 279 : (AIR 1914 PC 20) And Province of Bombay v. K. S. Advani 1950 SCR 621 : (AIR 1950 SC 222), that the decision of the Government on the existence of a public purpose is open to judicial review. Further, as the power of acquisition of lands is restricted under I Article 31 of the Constitution to a public purpose, the matter becomes justiciable irrespective of anything contrary in the Land Acquisition Act.

6. Construction of a new slaughter house is necessary for maintaining the supplies of food to the residents of Bhopal. It is, therefore, a public purpose. It is in the affidavit of the State Government that the existing slaughter house is insufficient and insanitary. The Government and the local I authority are the best judges of the needs of the growing population of Bhopal; and unless their decision is not in good faith, it must ordinarily be accepted as correct.

It is true that the alternative or additional reason given by them that they have to spend the money set apart for the purpose quickly as delay causes loss of interest is not relevant to the issue. However, the fact remains that the respondents consider the construction of a new slaughter house necessary and in public interest for other reasons which are, in our opinion, adequate. We hold that the acquisition is for a public purpose.

7. The next contention is that the notifications issued under Sections 4 and 6 of the Act in this case do not give sufficient particulars of the land proposed to be acquired. All that they state is that an area of six acres of land in Bhopal City, is proposed to be acquired.

8. It is true that 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. A survey to determine the land most suitable for the purpose and to fix its boundaries has to be undertaken. All the same, the locality, in which the land to be acquired is, has to be given. The 'locality' should be reasonably a small one to show the whereabouts of the land. We further consider that definite particulars of the land should be given.

After the insertion of Section 5A every person interested has a right to object to the acquisition of the land "which has been notified under Section 4, Sub-section (1)". Unless specific details are given, this is impossible. It would be difficult for the Collector to decide objections of thousands of persons of Bhopal who may apprehend that their six acres are likely to be acquired. It is no answer to say that at the stage of the notification under Section 4, there is no certainty about the lands finally to be acquired. The difficulty can easily be met by specifying all the lands which are being considered for acquisition and later specifying a smaller area in the notification under Section 6.

9. Under Section 6, definiteness about the specifications of the land is undoubtedly indicated. That section refers to any "particular land". It is this land which should be specified in the notification. The declaration made under this section is conclusive evidence "that the land is needed for a public purpose". In the instant case, the notification under Section 6 does not give the necessary particulars. It is true that the land could be ascertained from the map in the office of the Collector; but this is not enough as the persons really affected would not find anything in the notification to put them on the enquiry. It is preposterous to expect all the residents of Bhopal to visit the office of the Collector to inspect the map to ascertain if their lands are included in it.

10. The origin of the vagueness of these notifications can be traced to Forms I and II annexed to the instructions issued by the Government under the Act. Those forms, unlike Form III for a declaration under Section 9, do not prescribe any more particulars than the District, Tahsil, village and area of the land. In issuing the notifications, in the instant case, the department contented itself by giving these particulars only. It was overlooked that the instructions in para 9 on page 31 of the Land Acquisition Manual provide that the Collector has to add "any further particulars which he may deem necessary for the better identification of the land". The notifications would have conformed more to the requirements of law, if care had been taken to follow the instructions instead of mechanically adhering to the form.

11. Any way, the result is that the notifications under Sections 4 arid 6 in this case are vague and do not show the particular land proposed to be acquired. What then is the effect of this? It is contended on behalf of the State that as the application of Section 5A of the Act has been dispensed with, there is no prejudice to the petitioner as he could not prefer any objections in any case. That is so; but there is another effect which the notification under Section 4 produces under Section 23, clause firstly, the market value of the land as existing on the date of that notification is fixed for purposes of compensation. If a vague notification, like the present one, is allowed to pass muster, it can be used to freeze the value of any six acres of land in the big city of Bhopal. This would surely be far from the intention of the Act.

12. That apart, it appears to us that the notifications under Sections 4 and 6 are an essential part of the acquisition proceedings. They are in the nature of furisdictional facts which give power to the land acquisition authorities to act further and in the absence of which subsequent proceedings would be ultra vires. In Wali Mohd. v. Gyan Prakash, AIR 1954 Pat 399, it has been held that if the identity of the land cannot be ascertained, the land acquisition proceedings are void. Accordingly, in the instant case, it must be held that the defective notifications under Sections 4 and 6 of the Act render all the subsequent land acquisition proceedings void, for want of jurisdiction.

13. In this view, it is not necessary for us to consider the further contentions that the State Government could not treat the case as one of urgency and dispense with the application of section 5a or that section 17 could not apply as the lands are not waste and arable lands. However, as the point has been argued at some length, we may briefly refer to the legal aspect relevant to these contentions.

14. Sub-section (4) of Section 17 of the Act applies only to those cases in which Sub-section (1) thereof is attracted. For the application of Sub-section (1), it is necessary that the land needed for a public purpose must be "waste and arable" land and the case must be one of urgency. The contention of the petitioner, in the instant case, is that the land is not "waste or arable" land, as he has levelled it at a huge cost and has constructed eight hutments for residence of labourers on it and has also stocked some building materials there. The land was waste land when it was leased. The hutments constructed by the petitioner are temporary as appears from the photograph filed by the respondents. Still, the portion which is occupied by these hutments cannot be considered waste land and Section 17(1) does not apply in terms to this part of the land. The rest of the land appears to be waste land.

15. It is incorrect to say that Sub-section (1) of Section 17 applies only in a case where all the land proposed to be acquired is waste land. It is clear from the words "can take possession of any waste or arable land needed for a public purpose" used in the sub-section that it can apply to any part of the land covered by the notifications. However, it is necessary for the Collector to demarcate such land before taking possession.

In Lachhmi Narain v. State of Uttar Pradesh, AIR 1957 All 816, the land was mainly waste land, though there were some scattered constructions. It was held that the application of Sub-sections (1) and (4) of Section 17 could not be vitiated on that account as the action taken was in good faith. The only restriction which could be placed on the power to take possession was that the built-up area should be separated by the Collector and left out when possession is taken. A direction was given accordingly. The same view should apply to the present case.

16. On the question of urgency it has been held in Natesa Asari v. State of Madras, AIR 1954 Mad 481, that the existence of urgency is a matter solely for the determination of the Government and is not a subject of judicial review. This decision was followed in Harihara Prasad v. Jagannadham, (S) AIR 1955 Andhra 184. We respectfully agree that this is the correct interpretation of the provisions in Sub-sections (1) and (4) of Section 17 of the Act. Therefore, the existence of the urgency or the situation requiring a direction that Section 5A shall not apply to the case cannot be challenged by the petitioner.

17. During the course of the arguments, the learned Government Advocate drew our attention to Ordinance No. 3 of 1959 published on 1-1-1959. By this Ordinance a new Section 17-A is added to the Act extending the provisions of Section 17 to building sites also. This Ordinance was relied upon to justify taking possession of the land even if part of it is covered with buildings. The notification under Section 4 was published on 2-1-1959 and takes effect from that date; but it is dated 23-12-1958 which fact makes it clear that the opinion of the Government on the question excluding Section 5A was reached on that date. The matter was not thus considered by the Government in the light of the provisions of the Ordinance which was promulgated later. We need not however, pursue this aspect in detail further.

18. As we have already said, the proceedings for acquisition are rendered invalid by the omission to specify sufficient particulars of the land in the notifications under Sections 4 and 6 of the Act. The petition must, therefore, be allowed. Accordingly, we quash the notifications and direct that the State Government shall not take any action for acquisition of the lands or taking possession thereof on their basis. Under the circumstances of the case, we make no order as to costs. The security amount shall be refunded to the petitioner.

Iftikhar Ahmed v. State Of Madhya Pradesh

Judgment Summary — Shrivastava, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Contentions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Iftikhar Ahmed v. State Of Madhya Pradesh

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