Murari Lal Gupta, v. The State Of Punjab And Others

Judgement

SHAMSHER BAHADUR, J. :- What has been challenged in this petition under Article 226 of the Constitution of India is the right of the respondent State of Punjab to acquire land under the summary procedure of Section 17 of the Land Acquisition Act (hereinafter called the Act) by merely saying that it is required on ground of urgency ?

2. The petitions is Murari Lal Gupta whose land in village Bohar measuring 1.08 acres was notified under Section 4 of the Act on 9th of August, 1962, vide Annexure-A, to be required for the public purpose of construction of "Text Books Sales Depot" at Rohtak. In paragraph 4 of this notification it was stated that action for acquisition would be taken under Section 17 of the Act on ground of urgency and the provisions of section 5-a shall not apply in regard to this acquisition. It was followed by another notification of the same date (Annexure-B) under Section 6 of the Land Acquisition Act wherewith the Land Acquisition Collector was directed to take immediate orders for the acquisition of the said land. In order to appreciate the objections of the petitioner it is necessary to set out very briefly the provisions of the Land Acquisition Act.

Part II of the Act relates to acquisition and preliminary investigation and Section 4 empowers the appropriate Government to notify its intention to acquire property for a public purpose. S. 5-A deals with objections under which any person who is interested in the land which has been notified under Section 4 may within thirty days after its issue object to the acquisition of land and this objection has to be heard by the Collector after an opportunity has been given to him. After considering the report of the Collector under Section 5-A the Government notifies under Section 6 its declaration that a particular land is needed for a public purpose. In this notification the situation of the land, the purpose for which it is needed, its approximate area, and where a plan has been made of the land the place where such plan can be inspected, shall be stated. Such a declaration under Sub-Section (3) of Section 6 is conclusive evidence that the land is needed for a public purpose. It is only after a declaration is made under Section 6 that a Collector can be authorised by the appropriate Government to take an order for the actual acquisition of the land Subsequently, the Collector has to notify the interested persons to submit claims for compensation under Sub-Section (1) of Section 9 and it is only after the Collector has made an award under Section 11 that he may take possession of the land free from all encumbrances under Section 16 of the Act. This is the normal procedure of acquisition.

3. Section 17 deals with special powers in cases of urgency Under Sub-Section (1), the Collector even where no award has been made may, on the expiration of fifteen days from the publication of the notice under Sub-Section (1) of S. 9 take possession of any waste or arable land needed for public purposes or for a company. Sub-S. (2) of the Act which has been replaced by the amendment made by Punjab Act 2 of 1954 is to this effect :

In the following cases, that is to say, -

(a) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a riverside or ghat, station or of providing convenient connection with or access to any such station;

(b) Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land for the purpose of any library or educational institution or for the construction, extension or improvement of any building of other structure in any village for the common use of the inhabitants of such village, or any godown for any society registered under the Co-operative Societies Act 1912 Act II of 1912) or my dwelling house for the poor, or the construction of labour colonies or houses for any other class of people under a Government sponsored Housing Scheme, or any irrigation tank irrigation or drainage channel, for any well or any public road;

(c) Whenever land is required for a public purpose which in the opinion of the appropriate Government is of urgent importance the Collector may immediately after the publication of the notice mentioned in Sub-Section (1) and with the previous sanction of the appropriate Government enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances;"

Sub-Section (3) of Section 17 requires the Collector at the time of taking possession to offer to the persons interested compensation for the standing crops or for any damage sustained by them. In sub Section (4) it is mentioned that wherever the appropriate Government considers that the provisions of Sub-Section (1) or Sub-Section (2) are applicable, it may direct that the provisions of section 5-a shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Sub-Section (1) of S. 4.

4. It would thus be seen that in certain emergent situations the Government is empowered to take possession of land on the ground of its urgent requirement. If the land is waste or arable, it may be acquired under Sub-Section (1). When the land does not fall under any of these categories it can still be acquired under clauses (a) and (b) of Sub-Section (2) for certain specified purposes. It is obvious that in the situations mentioned in Sub-Section (2) the acquisition for the Railway Administration does not brook of any delay and can he made without the usual formalities prescribed in Section 5-A of the Act. Clause (b) of Sub-Section (2) sets out further special purposes for which acquisition under Section 17 may be resorted to. The notifications which have been made in the instant case do not indicate any ground of urgency envisaged in clauses (a) and (b). All that is stated in the notifications is that the land is required for the construction of a text books sales depot at Rohtak. This purpose admittedly does not fail within the ambit of clauses (a) and (b) of Sub-Section (2).

5. In the written statement filed on behalf of the State it is mentioned in paragraph 4 that the land which has been acquired is banjar cadim though it is situated within the municipal limits of Rohtak town. In paragraph 5 it is stated that no building exists on the land which is the subject-matter of the notification. In paragraph 8 it is asserted that the land has been acquired for public purpose. No definite position has been taken by the State Government as to whether the acquisition has been made under Sub-Section (1) or Sub-Section (2) of Section 17, and if it is under Sub-Section (2) whether it falls within clause (a), (b) or (c). From the assertion made that the land is banjar qadim it may perhaps be gathered that the acquisition is of waste land and Sub-Section (1) is applicable Mr. Lachhman Das Kaushal for the State, however, has taken up the position that the acquisition is attracted by clause (c) of Sub-Section (2) of Section 17 under which the Collector may take possession of the land whenever it is "required for a public purpose which in the opinion of the appropriate Government is of urgent importance." The learned Deputy Advocate-General has taken this stand presumably in view of the observations which were made by a Division Bench of S.T. Desai and V.S. Desai, JJ., in Navnitlal Ranchhodlal v. State of Bombay, AIR 1961 Bom 89. It was held by the Bombay High Court that the Government has to form an opinion as a condition precedent to issuing a notification under Sub-Section (4) of Section 17 for dropping the enquiry under Section 5-A both as to urgency as well as to the nature and condition of the land. Both these matters are left to the opinion of the Government and the correctness of the opinion formed cannot raise a justiciable issue. The Government has to form the necessary opinion with regard to this objective fact on consideration of reasons which are relevant to its determination, and where the notification does not indicate that the necessary opinion was formed by the Government, the direction issued in the notification for dropping the enquiry under Section 5-A is not in accordance with law. It was said in this ruling that the expression "waste land" would apply to lands which are desolate, deserted, uninhabitated and uncultivated as a result of natural barrenness or rendered unfit for cultivation by reason of natural ravages, etc. Manifestly, there is no such indication of the opinion of the Government in the notifications which are sought to be impugned, and these can be defended only on the ground that the Government considers the public purpose to be of urgent importance.

6. Does the public purpose become of urgent importance by the Government calling it so ? The object of acquisition in the instant case is the construction of the shop for storing test books - a purpose which cannot be in parity with the objects specified under clauses (a) and (b) of Sub-Section (2) of Section 17 on the principle of ejusdem generis. The matter of acquisition may be of importance, but there is nothing to indicate that it is of "urgent" importance to justify the exclusion of the procedure prescribed under Sec. 5-A of the Land Acquisition Act. The purpose might well be served by requisitioning some property till the acquisition is made under the normal procedure prescribed in the Act. Mr. Anand Swarup for the petitioner further relies on a decision of S. Velu Pillai, J. in Madhavi Amma v. Revenue Divisional Officer, Kozhikode. AIR 1961 Kerala 116, where it was held that it is imperative that Government must hold a definite opinion within the meaning of Section 17(4) as to whether it is the provisions of Sub-Section (1) or of Sub-Section (2) which are applicable to a given case. It is important to remember that the dispensation of the operation of Section 5-A is a serious matter and according to the view taken by S. Vein Pillai, J., the notification on the face of it must show that the Government really has directed its mind whether acquisition has to be made under sub-section (1) or sub-section (2) of section 17. Far from so showing, the Government in its written statement is itself not clear whether the land has been regarded as waste or arable under Sub-Section (1) or it has been acquired for any of the specified purposes mentioned in sub-section (2). clause (c) of sub-section (2) introduced by the Punjab Amending Act no doubt enlarges the scope of acquisition but it has to be read ejusdem generis with clauses (a) and (b) where specific purposes for which acquisition can be made under Section 17 are definitely set out. Clearly, the construction of a depot for sale of text books is not in line with the purposes specified in clauses (a) and (b) of Sub-Section (2) of Section 17 and it cannot be defended on the specious ground that the Government considers purpose to be of urgent importance.

7. Mr. Kaushal for the State has invited our attention to a Bench decision of the Mysore High Court in Kashappa Shivappa v. Chief Secretary to the Govt. of Mysore, AIR 1963 Mys 318, where it was held that when a notification is issued under Section 17 it must be presumed that the Government has formed an opinion about the urgency but it is to be noted that Somnath Iyer, J. stressed at page 322, that a direction dispensing with adherence to the provisions of section 5-a can be issued only in exceptional cases in which the matter is so urgent that the time that is likely to be spent over the hearing directed by Section 5-A would produce such great harm or public mischief that a direction dispensing with that hearing is imperative. The Bench observed that there may be a case in which the High Court might find it possible to say that that opinion was an impossible opinion either by reason of the fact that it rests upon no ground at all or rests on grounds which are demonstrated to be thoroughly irrelevant. We have not had the benefit of looking into any expression of opinion on this matter by the State Government which has contented itself by a mere assertion that the construction of text books sales depot is a matter of such public importance that the provisions of section 5-a should be dispensed with. Plainly, this is a proposition which cannot ex facie be accepted and in order to uphold the validity of the notifications we have to ask ourselves the question whether the purpose can in fact fall under the wide amplitude permissible under clause (c) of Sub-Section (2) of Section 17.

So far as the insistence of public purpose is concerned, the declaration made under Section 6 is conclusive. The same, however, cannot he said about the urgent importance which alone can justify the acquisition of land under Section 17 While it is true that the notification issued under Section 17(4) cannot always contain the materials demonstrating the urgency it has all the same to be established by other materials which can be produced before the Court such as may be contained in the proceedings resulting in the publication of the notification under Section 17(4), as suggested by another Division Bench of Somnath Iyer and Iqbal Husain, JJ. in Thirumalaiah v. State of Mysore. AIR 1963 Mys 255. It must appeal that in the exceptional cases where proceedings under Section 5-A are dispensed with, the matter is of such importance that it does not brook of any delay and unless the construction is made without loss of time public interest will suffer. Such a situation has neither been set up in the notification nor in the pleadings nor even in the arguments addressed by the learned Deputy Advocate-General. The acquisitions under S. 17 have to be made under the stress of an emergency or an urgent situation, of which there is no semblance of a suggestion in the case in point. Such being the position, this petition must succeed and the impugned notifications set aside. The petitioner will get his costs of these proceedings.

8. D. K. MAHAJAN, J. :- I agree.

Petition allowed. AIR 1964 PUNJAB 480 (Vol. 51, C. 156) "State of Punjab v. Sant Singh"

PUNJAB HIGH COURT

Coram : 2 D. FALSHAW, C. J. AND A. N. GROVER, J. ( Division Bench )

The State of Punjab and others, Appellants v. Sant Singh Dewa Singh, Respondent.

Letters Patent Appeal No. 286 of 1962, D/- 20 -8 -1963. against judgment of Harbans Singh, J., in Civil Writ No. 63 of 1961, D/- 17 -5 -1962.

States Reorganisation Act (37 of 1956), S.116(1) - STATE REORGANISATION - APPOINTMENT - TERMINATION OF SERVICE - Sub-inspector in Consolidation Department in Pepsu holding same office after its merger with Punjab - No appointment made for posts of Sub-Inspectors in Punjab - Appointment must be held to have been made by State Government - His dismissal from service by Director of Consolidation of Holdings having no power of appointment to such posts but only power of dismissal is bad.

Constitution of India, Art.311(2).

The respondent was appointed as Sub-Inspector in Consolidation Department in Pepsu by the Settlement Commissioner. After the merger of Pepsu and Punjab he continued to hold the post by integration into the Punjab Consolidation Department. When the merger took place no such officers were being appointed there. The Government by a directive delegated to the Director of Consolidation of Holdings the power of dismissing officials appointed by the Settlement Commissioner of Pepsu. The respondent was removed by the Director.

Held, that the order was bad for contravening the provisions of Art. 311 of the Constitution. (Para 8)

When the merger took place no such officers as Sub-Inspectors were being appointed in the Punjab Consolidation of Holdings Department and so neither the Director nor any other officer had the power to appoint Sub-Inspectors. Therefore the respondent must be deemed to have been appointed by the State Government of Punjab, under Section 116(1). AIR 1954 Raj 207. Rel, on. (Paras 4 and 5)

The directive no doubt gave power of dismissal to Director, but it did not in terms make him the authority for appointments. Hence the only authority which could properly dismiss him from service was the State Government. (Paras 4 and 7)

Cases Referred : Courtwise Chronological Paras

(54) AIR 1954 Raj 207 (V 41) : ILR (1954) 4 Raj 733, Sobhagmal v. State 5

M.S. Pannu, Deputy Advocate General, for Appellants; Ram Rang, for Respondent.

Judgement

D. FALSHAW, C. J. :- This is an appeal filed under clause 10 of the Letters Patent by the State of Punjab and others against the order of Harbans Singh, J. accepting a petition filed under Article 220 of the Constitution by Sant Singh respondent and quashing an order of the Director. Consolidation of Holdings, Punjab removing him from service.

2. The relevant facts are that Sant Singh was appointed as a Sub-Inspector in the Consolidation Department in Pepsu in June 1954 by the then Settlement Commissioner, Pepsu. After the merger of Pepsu and Punjab in 1956 Sant Singh continued to hold the post of Sub-Inspector by integration into the Punjab Consolidation Department, but after an enquiry in which certain charges of misconduct were found to have been established against Sant Singh and he had been called on to show cause why he should not be dismissed from service an order dismissing him from service was passed on 29th July 1960 by the Director, Consolidation of Holdings, Punjab.

3. In his petition under Article 226 of the Constitution Sant Singh challenged the order of his dismissal on various grounds including mala fides, but principally the question was whether the order was bad for contravening the provisions of Article 311(1) of the Constitution to the effect that no civil servant shall be dismissed or removed by an authority subordinate to that by which he was appointed. It is not even now contended that the Director, Consolidation of Holdings, Punjab is in any way subordinate or inferior in status to the Settlement Commissioner. Pepsu, whose post had ceased to exist when the merger took place. Reliance is, however, placed on the provisions of Section 116 of the Central Act, the States Reorganisation Act, XXXVII of 1956.

Section 116 deals with the continuance of officers in the same posts and Sub-Section (1) reads :

"Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new State or a Union Territory shall, except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new State or Union Territory in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post or office by the Government of or other appropriate authority in such State, or by Central Government or other appropriate authority in such Union Territory, as the case may be."

4. It is not disputed that on the 1st of November 1956 when the merger took place no such officers as Sub-Inspectors were being appointed in the Punjab Consolidation of Holdings Department and so neither the Director, Consolidation of Holdings, Punjab nor any other officer had the power to appoint Sub-Inspectors. In the circumstances the learned Single Judge has found that there was no "other appropriate authority" in the State within the meaning of the words used in Section 116(1) who could have appointed the petitioner as a Sub-Inspector and that therefore he must be deemed to have been appointed by the State Government. From this if followed that the only authority which could properly dismiss him from service was the State Government.

5. The principle that, where there has been a merger of States, in deciding whether there has been a contravention of Article 311(1) it is necessary to consider not which was the authority which originally appointed the official concerned to his post in the State which has subsequently been merged, but what authority appointed him to his post on the merger, has been laid down by Wanchoo, C.J. and Ranawat, J. in Sobhagmal v. State. AIR 1954 Raj 207, and with this principle I am in respectful agreement. It is therefore clear that in the present case the authority which appointed Sant Singh as a Sub-Inspector in the Consolidation Department in the new State of Punjab must be the authority which is deemed to have appointed him by the provisions of Section 116(1) of the Act.

6. On behalf of the State reliance is placed on a directive dated the 19th of February 1959 issued by the State Government to the Director, Consolidation of Holdings, Punjab, the relevant portion of which reads :

"You are also empowered to impose punishments on Inspectors and Sub-Inspectors, Consolidation of Holdings, of erstwhile Pepsu State except that the powers to suspend, censure and to stop their increments will also vest in the respective Settlement Officers, Consolidation of Holdings. It may, however, be clarified that the above delegations do not include the power to remove or dismiss these officials as this power will continue to vest in the authorities which appointed them in view of Article 311(1) of the Constitution of India. In other words, you will be competent to remove or dismiss those officials who were appointed by the erstwhile Settlement Commissioner, Pepsu"

7. However, while the latter part of this directive clearly shows that the State Government had in mind the principles of Article 311(1) of the Constitution regarding the dismissal or removal from service of integrated officials from Pepsu, it does not show that they had in mind the full effect of the provisions of Section 116(1) of the Act, since the directive did not in terms made the Director, Consolidation of Holdings, Punjab, the authority for appointing Sub-Inspectors and Inspectors. This power had in fact been taken away from the Director some time earlier when the appointment of Sub-Inspectors and Inspectors ceased altogether in the then Punjab.

8. In the circumstances I am of the opinion that the view taken by the learned Single Judge was correct, and that since there was no "appropriate authority" at the time of the merger or thereafter who could appoint Sub-Inspectors in the Consolidation Department, the petitioner Sant Singh must be deemed in the terms of Section 116(1) to have been appointed to his post by the Government of Punjab, and therefore, within the meaning of Article 311(1), no lesser authority could order his dismissal from service. The result is that the appeal fails and is dismissed, but the parties may be left to bear their own costs.

9. A. N. GROVER, J. :- I agree.

Appeal dismissed.