Patna High Court - Orders
Smt. Rishi Raj & Ors vs The State Of Bihar & Ors on 22 July, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7933 of 2014
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1.Smt. Rishi Raj wife of Sri Surendra Kumar Singh At Gourakshni, District
Sasaram
2.Vijay Kumar Singh son of Late Bindeshwari Prasad Singh Village AND
P.O. Neora, P.S. Bihta, District Patna
3.Nirvan Deo Yadav son of Sri Bibhuti Bhushan Rai Village Neoraganj,
P.O. Neora, P.S. Bihta, District Patna
4.Bhola Prasad Son of Ram Parayan Ray Village Neora Dera Par, P.O.
Neora, P.S. Bihta, District Patna
5.Harendra Prasad son of Late Netram Bhagat Village AND P.O. Neora,
P.S. Bihta, District Patna
.... .... Petitioner/s
Versus
1.The State of Bihar through Secretary, Revenue and Land Reforms
Department, Land Acquisition Directorate, Government of Bihar
2.Secretary, Revenue and Land Reforms Department, Land Acquisition
Directorate, Government of Bihar
3.Principle Secretary, Education Department, Government of Bihar, Patna
4.Under Secretary, Revenue and Land Reforms Department, Land
Acquisition Directorate, Government of Bihar
5.Commissioner, Patna Division, Patna
6.District Magistrate, Patna
7.District Land Acquisition Officer, Patna
8.Circle Officer, Bihta, Patna
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Siddhartha Prasad, Adv.
For the Respondent/s : Mr. Roy Shivaji Nath
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV.
4 22-07-2014Heard learned counsel for the petitioner and the State.
In this case, petitioners are challenging the notifications dated 20th June 2012 (Annexure-15) and 22nd June 2012 (Annexure-16) issued under Sections 4 and 6 respectively of Land Acquisition Act 1894 (hereinafter, referred to as the 'Act') to the extent that the lands belong to the petitioners.
Patna High Court CWJC No.7933 of 2014 2/9 Maulana Mazrul Haque Arabic and Persian University, Patna recognised by the University Act 1976, has been established in the year 1992 running in a building at the Bailey Road, Patna.
As the land was required for the said University, the State Government in the year 2005 decided to make available appropriate land for the University in the surroundings of Patna which is apparent from the letter dated 14th June 2005 issued by the Joint Secretary, Human Resources Development Department, Government of Bihar to the Collector, Patna. Similar letter was also written to the Collector, Patna requesting him to make available 20 - 25 acres of land either at Phulwarisharif or at Neora.
Again Registrar of the University vide letter date dated 10th June 2006 requested the Collector, Patna to make available the required land at Ashiana Road or at Phulwarisharif whereupon the Collector, Patna vide letter dated 5th July 2006 sought clarification whether the University is in requirement of Government land or Raiyati land so much so 20 acres of Government land was not available in Phulwarisharif. It took the University two years to reply. Accordingly, the Registrar of the University vide letter dated 8th May 2008 wrote that either the Patna High Court CWJC No.7933 of 2014 3/9 Raiyati land or the Government land be made available at one place or at different places that would also serve the purpose. The Vice Chancellor of the University addressed a letter dated 12th July 2008 to the Principal Secretary, Human Resources Development Department, Government of Bihar requesting the Government to provide 20-25 acres of land either at Phulwarisharif or at Neora. The Joint Secretary, Human Resources Development Department, Government of Bihar vide letter dated 14th July 2008 while giving reference to the earlier letter dated 14th June 2005 requested the Collector to make available sufficient land for the building of the University.
Again the Joint Secretary, Human Resources Development Department, Government of Bihar sent reminder vide letter dated 21st October 2008 and letter dated 11th June 2009 requesting the Collector to make available the requisite land for the University and the Registrar of the University vide letter dated 8th October 2009 requested the Joint Secretary, Human Resources Development Department, Government of Bihar for allotment of 10 - 15 acres of land available behind Raj Bhawan at Hardinge Road, Patna.
Again the Human Resources Development Department, Government of Bihar issued letter dated 7th January Patna High Court CWJC No.7933 of 2014 4/9 2010 to the Commissioner, Patna for acquiring the land at Neora.
From the facts mentioned above it appears that there was interaction among the Officers for acquisition of the land for the purpose of constructing the building of the University. Ultimately, the Joint Secretary, Human Resources Development Department, Government of Bihar on 28th January 2010 signed the filled up form and requisition for the acquisition of 25 acres of land. After that the Collector, Patna vide letter dated 10th March 2010 addressed to the Joint Secretary, Human Resources Development Department, Government of Bihar informed that the land which is in proposed acquisition is excess by 59 decimals and sought permission from the Human Resources Development Department, Government of Bihar to acquire 25.59 acres of land in stead of 25 acres.
After obtaining permission, 20.99 acres of land was identified as Raiyati land, 4.54 acres of land as Bakast Malik land, 0.06 acres as Girmazarua Malik land, plot nos. 704, 706 and 779 were Bakast Malik land and those lands were left out from the purview of acquisition. Accordingly, a notification dated 21st July 2010 under Section 4 of Land Acquisition Act has been issued exercising the emergency provision as provided under Section 17 of the Act thereby dispensing with filing objection under Section Patna High Court CWJC No.7933 of 2014 5/9 5A of this Act. Thereafter on the next date, a notification under Section 6 of this Act for declaration was issued on 22nd July 2010 for acquiring 20.99 acres of land.
It appears that the aforesaid notification was challenged in CWJC No.13516 of 2010 on various ground, including wrong application of Section 17 of the Act but that was dismissed vide order dated 5th May 2011.
One Dwipunj Deo Yadav, owner of plot no. 779, measuring 40.50 decimals filed CWJC No. 12198 of 2011 for giving direction to the District Magistrate, Patna for grant of 'No objection certificate' in terms of Petroleum Rules for the establishment of Petrol Pump on the said plot.
The ground of contention was that only 1.51 acres out of 1.91 acres of land of plot no. 779 was sought to be acquired by the Human Resources Department, Government of Bihar whereupon the Court passed the order if there no requisition filed by the Maulana Mazharul Haque Arabic and Persian University for the purpose of acquiring more than 25 acres of land and only on account of that, there may be a requisition in future, the petitioners cannot be deprived of 'NOC' which is required for running the Petrol Pump. If there is a requisition and the land acquisition proceeding is initiated, obviously the consequence will Patna High Court CWJC No.7933 of 2014 6/9 follow.
The lands of the petitioners were also involved which are as follows:
Petitioner no.1, Plot No. 779 Area 31.25 Dec. Petitioner no.2, Plot No. 707 Area 44.00 Dec. Petitioner no.3 Plot No. 779 Area 31.25 Dec. Petitioner no.4 Plot No. 779 Area 31.25 Dec. Petitioner no.5 Plot No. 774 Area 1.26 Acres. In view of the aforesaid observation, the Collector, Patna on 15th May 2012 sent a proposal for notification and declaration of land belonging to the petitioners, including the lands of Dwipujan Deo Yadav to the Commissioner, Patna vide letter dated 15th May 2012 for acquiring further land measuring 3.61 acres, including plot no. 779.
Again a notification u/s 4 of the Act was issued on 20th June 2012 invoking emergency as provided u/s 17 of the Act thereby dispensed with filing objection under the provision of Section 5A of the Act, person interested to the land was deprived to raise objection and the notification for declaration under Section 6 of the Act was issued vide notification dated 22nd June 2012.
The ground of challenge in the present application is Patna High Court CWJC No.7933 of 2014 7/9 that the State of Bihar wrongly exercised the emergency provision as the acquisition for the University will not fall under the emergent situation in view of the fact that the authority has taken a good length of time for the purpose of taking decision for acquisition of the land for the construction of building, petitioners cannot be deprived of the right to file an objection u/s 5A of the Act as there valuable property is acquired without giving any window to raise their objection with regard to acquisition of their land. The right to property may not be a fundamental right but it is still a right as provided under Article 300A of the Constitution of India. The emergency provisions can be invoked dispensing with the right to file objection under section 5A of the Land Acquisition Act, provided the project is so urgent, it cannot wait for weeks and months. As has been submitted that the present matter does not fall under the category of emergency, as University authorities and State authorities consumed lot of time to take concrete decision for acquisition of land for the building of University. Construction of Building does not fall in the category of emergency and authorities could have awaited till the disposal of objection.
Counsel for the petitioner has relied on the judgment in CWJC No. 15594 of 2012 (Sanghmitra Singh v. State of Bihar and others and analogous cases and CWJC No. 12198 of 2011 Patna High Court CWJC No.7933 of 2014 8/9 (Dwipujan Deo Yadav v. The State of Bihar and others).
Counsel for the State has submitted that merely because the notification under Section 6 of the Act goes, that does not mean that notification u/s 4(1) of the Act automatically be held to be illegal as at the initial stage, the notification has been issued u/s 4(1) and Section 6 of the Act in consonance with provision of the Act.
This Court is not required to deal with this issue very deeply, in view of judgment passed in the case of Sanghmitra Singh (supra) where the Court has held that issue of dispensing with for filing an objection under Section 5A of the Act and the notification with regard to acquisition of the land for the University has been settled and the notification issued under Section 6 of the Act has been set aside by the Division Bench of this Court in LPA No. 1082 of 2011 and further the issue of status of notification under Section 4(1) of the Act has been considered as quashing the notification under Section 6 of the Act without compliance of Section 5A would also vitiate notification under Section 4(1) of the Act, as in after compliance of Section 5A for hearing objection fresh notification has to be issued under Section 6 of the Act. There is prohibition of one year in between the notification under Section 4(1) vis-à-vis 6 of the Act as in the Patna High Court CWJC No.7933 of 2014 9/9 present case, notification under Section 4 of the Act has been issued on 20th June 2012 (Annexure-15) and notification under Section 6 has been issued on 22nd June 2012 (Annexure-16). As notification issued under Section 6 as has been held to be illegal on account of dispensing with the provisions of Section 5A of the Act, in that circumstance, natural corollary would be a gap of more than one year if the fresh notification under Section 6 of the Act is issued even then the situation will not improve. This Court in Sanghmitra Singh (supra) held, land acquisition proceeding related to acquisition of land for university was under
consideration, in the event of illegality in the notification under Section 6 of the Act the notification under Section 4 of the Act automatically could not be sustained.
In such view of the matter, the Notification under Section 4(1) of the Act (Annexure-15) and the notification under Section 6 of the Act (Annexure-16) are hereby quashed. The State if so desires can go for fresh acquisition in accordance with law.
Accordingly, this petition is allowed to the extent indicated above.
Jay/- (Shivaji Pandey, J) U