Shiv Dayal and another vs State of Punjab and others

M.M. Punchhi, J.

This petition under Article 226 of the Constitution of India has arisen in the following circumstances :

The petitioners own two small parcels of land within the municipal limits of Talwandi Bhai, tehsil and district Ferozepore, property detailed and described in paragraphs 1 and 3 of the petition. These are said to be fit for residential houses and some effort in that direction was undertaken by the petitioners. One of the petitioners was stopped in such pursuit when the petitioners came to learn that the land in their ownership had been subjected to acquisition vide notification dated December 31, 1971 (Annexure `A'' to the petition) issued under sections 4 and 17 of the Land Acquisition Act, 1894. They thus approached this Court for the issuance of a suitable writ and on 29.9.1972, the Motion Bench granted them stay of dispossession which was later on confirmed on 7.11.1972. It is legitimate to assume that the petitioners are in possession till date.

In the return, the respondents while disputing the claim of the petitioners have also relied on a notification dated 12.1.1972 issued under sections 6 and 17(1) of the Land Acquisition Act whereby the land in dispute stood acquired for purposes of constructing staff quarters at Talwandi Bhai which is named therein as the public purposes as it was so named in the notification, Annexure `A''.

In the petition, the notification was challenged on the ground that though urgency provisions had been invoked in the notification, Annexure `A'', but they seemed to have been invoked absolutely without application of mind and were thus mala fide. It was also claimed that a combined notification under sections 4 and 17 was not permissible under the law. It was bemoaned that opportunity contemplated under Section 5A of the Land Acquisition Act was denied and that was a valuable right. It was also asserted that the land in question did not fall within the definition of waste or arable land.

On the admitted facts, it is plain that the notification under section 4 of the Act read with section 17 thereof was issued on 31.12.1971 and notification under Section 6 read with section 17 of the Act was issued on 12.1.1972. When the petitioners approached this Court on 29.9.1972, possession had not been taken from them; rather their possession was preserved under orders of this Court. The public purpose mentioned in the notification is construction of staff quarters. What is pleaded in the return is that providing for staff quarters was essential but construction for these quarters could not be undertaken due to nonavailability of bricks etc. The public purpose for which the land has been acquired per se is not something which could be accomplished in a day or was of such a nature that it could not brook the delay during which objections under section 5A could not be decided and heard. The view of the Supreme Court lately on the subject has been crystallized to the effect that mechanical employment of the urgency provisions of Section 17 without ex facie disclosing in the notification the reasons for urgency would be fatal to the notification and such practice has been deprecated. To determine the validity of the notification, even the quality of the public service can be sensed into and if it can speak for itself, the Court is entitled to draw proper inferences. In the situation, it seems to me that this was not such an acquisition in which the petitioners could have been deprived the right conferred under Section 5A of the Act by employment of urgency provisions under Section 17 thereof. After all, residential quarters are not built in a day and the petitioners could well have satisfied the authorities that alternate land was more suitable for the purpose.

For the foregoing reasons, this petition is allowed. Not only the notification under section 4 read with section 17 of the Act (Annexure `A'') is quashed but also the consequential notification dated 12.1.1972 under sections 6 and 17 of the Act appended with the return. There is no opposition to the petition and none has appeared for the State. For this reason, there would be no order as to costs.