Nandeshwar Prasad & ANR Vs. The
State of U. P. & Ors [1963] INSC 121 (26 April 1963)
26/04/1963 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1964 AIR 1217 1964 SCR (3) 425
CITATOR INFO:
R 1965 SC1017 (9) F 1965 SC1763 (4,5) F 1973
SC 689 (20) R 1973 SC1150 (7)
ACT:
Land Acquisition-Notification by
Governor-Land required for construction of industrial tenements-Second
notification -Collector directed to take possession-Collector's notification
stating possession would be taken overAcquisition for Kanpur Development
Board-Action if must be taken under s. 114 of the Kanpur Act-Notification under
s. 6 could be issued without first taking action under s. 5ALand acquisition
Act, 1894(1 of 1894), ss. 4,5,5A, 6,9, 17(1), 17(4), Kanpur Urban Area
Development Act, 1945(Act VI of 1945), ss. 71,114.
HEADNOTE:
In these two appeals the same questions of
law arise and the facts in C.A. No. 166 of 1962 are similar to those in C.A. 167
of 1962 which are stated below.
The appellant in C.A. No. 167 of 1962 is the
owner of certain lands situated in the city of Kanpur. The land is occupied by
a Mill and god owns and no part of the land is waste land or arable land. In
1932 the U. P. Government sanctioned by a notification a Scheme (Scheme No. XX)
of the improvement Trust, Kanpur. This Trust has been replaced by the
Development Board, Kanpur, by reason of the Kanpur Urban Area Development Act,
1945.
426 In 1955 the Housing Department of the
Government of U.P, sponsored a scheme -for building industrial tenements.
Part of the scheme concerned the locality in
which the land in dispute is situated. In 1956 a notification was issued under
s. 4 of the Land Acquisition Act, 1894, by the Governor of U.P. to the effect
that the plots in dispute were required for the construction of tenements
tinder the subsidized industrial. Housing scheme of the U.P. Government as well
as for general improvement and street scheme No. XX of the Board. This was
followed by a notification under s.
6 of the Land Acquisition Act stating that
the case being one of urgency the Governor was pleased under sub-ss. (1) and
(I-A) of s. 17 of that Act to direct that the Collector of Kanpur, though no
award under s. II had been given, might on the expiration of the notice mentioned
v. 9(1) take possession of land mentioned in the schedule. Subsequently a
notice under s. 9 was issued which stated that possession of the land will be
taken within 15 days. The appellant thereupon filed a writ petition under Art.
226 of the Constitution in the High Court. Two main points were raised in the
petition. Firstly, it was contended that as the acquisition was for the purpose
of Scheme No. XX of the Board action had to be taken in accordance with s. 114
of the Kanpur Act and the schedule thereto and as no action had been so taken
the proceedings for acquisition were bad. In the second place, it was urged
that it was not open to the Governor to issue the notification under s. 6 of
the Land Acquisition Act without first taking action under s. 5A thereof. The
High Court rejected both these contentions and in the result dismissed the writ
petition. The present appeal was filed with a certificate issued by the High
Court.
In the appeal before this Court the same
questions which were agitated before the High Court were raised.
Held it is only when the Board proceeds to
acquire land by virtue of its powers under s. 71 that s. 114 comes into play
and the proceedings for acquisition have to take place under the Land
Acquisition Act as modified by s. 114 read with the schedule. But where the
acquisition is, as in the present case, by the Government under the Land
Acquisition Act, for public purposes though that purpose may be the purpose of
the Board, the Kanpur Act has no application at all and the Government proceeds
to acquire under the provisions of the Land Acquisition Act alone.
From the scheme of the Act it is clear that
compliance with the provisions of s.5-A is necessary before a notification 427
can be issued under s. 6. Even where the Government makes a direction under s.
17(1) it is not necessary that it should also make a direction under s. 17(4).
If the Government makes a direction only under s. 17(1) the procedure under s. 5-A
would still -have to be followed before a notification under s. 6 is issued. It
is only when the Government also makes a declaration under s. 17(4) that it
becomes necessary to take action under s. 5-A and make a report there under.
Under the Land Acquisition Act an order under
s. 17(1) or S. 17(4) can only be passed with respect to waste or arable land
and it cannot be passed with respect to land which is not waste or arable land
on which buildings stand.
just as s. 17(1) and s. 17(4) are independent
of each other, s. 17(1.A) and s. 17(4) are independent of each other and an
order under s. 17 (I-A) would not necessarily mean that an order under s. 17(4)
must be passed.
The right to file objections under s. 5-A is
a substantial right when a person's property is being threatened with
acquisition and that right cannot be taken away as if by a side-wind because s.
17(1-A) mentions s. 17(1). Section 17(1-A) mentions s. 17(1) merely to indicate
the circumstances and the conditions under which possession can be taken.
It was not open to the State Government to
say in the notification under s. 4 that proceedings under s. 5-A will not take
place. This part of the notification under s. 4 is beyond the powers of the
State Government and in consequence the notification under s. 6 also, as it was
issued without taking action under s. 5-A, must fail.
CLVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 166 and 167 of 1962.
Appeals from the judgment and decrees dated
October 25, 1957 of the Allahabad High Court in Special Appeals Nos. 140 and
139 of 1957.
J.B. Goyal, for the appellants (in C.A.No.
166 of 62).
1 C. B. Agarwala and P. C. Agarwala, for the
appellants (in C.A. No. 167 of 62).
428 K. S. Hajela and C. P. Lal, for
respondent No. I (in both the appeals).
C. P. Lal, for respondent No. 2 (in both the
appeals).
1963. April 26. The judgment of the Court was
delivered by WANCHOO J.-These two appeals on certificates granted by the
Allahabad High Court raise common questions and will be dealt with together. It
will be enough if we mention the facts in appeal No. 167, for the facts in the
other appeal are exactly the same, except that the lands in dispute are
different in the two cases, though lying in the same area in the city of
Kanpur.
Deoki Nandan, appellant in appeal No. 167, is
the lessee of two plots in Anwarganj, Bans Mandi, Kanpur, and his lease is for
a period of 99 years from 1943. On these plots there exists a mill known as Om
Cotton Ginning and Oil Mill. Besides the mill there are pacca godowns also on
the plots and two-thirds of the area is under buildings while onethird is open
land paved with bricks. No part of the land is waste or arable.
It appears that in February 1932 the
Government of U. P. sanctioned by notification a scheme known as Pechbagh
Dalelpurwa Scheme No. XX (hereinafter referred to as scheme No. XX) of the
Improvement Trust Kanpur. It may be mentioned that the Improvement Trust Kanpur
has now been replaced by the Development Board Kanpur (hereinafter referred to
as the Board) by the Kanpur Urban Area Development Act, No. VI of 1945,
(hereinafter referred to as the Kanpur Act), which repealed the U. P. Town
Improvement Act, No. III of 1920, insofar as it applied to Kanpur. It is not
clear what 429 happened to scheme No. XX after 1932; but it does appear that it
was not fully carried out.
It appears that in 1955 a scheme known as
subsidized industrial housing scheme was sponsored by Housing Department of the
U. P. Government. This scheme was to be put in force in four phases. and we are
concerned in the present appeal with the fourth phase. For that phase the
Government of India had sanctioned over rupees two crores and it was decided to
build 6973 tenements of which 1368 were to be in an Ahata on the Hamirpur road.
We are concerned with this part of the scheme, for the lands in dispute are in
this locality. The decision in this connection was taken by the Government of
U. P. in May 1955.
Thereafter on January 6, 1956, a notification
was issued under s. 4 of the Land Acquisition Act, (No. I of 1894) by the
Governor of U. P. to the effect that the two plots in dispute were required for
the construction of tenements in the fourth phase of the subsidized industrial
housing scheme sponsored by the Government of U. P. as well as for general
improvement and street scheme No. XX of the Board. This was followed by a
notification under s. 6 of the Land Acquisition Act on January 31, 1956. That
notification further said that the case being one of urgency the Governor was
pleased under sub-ss. (1) and (I-A) of s. 17 of the Land Acquisition Act to
direct that the collector of Kanpur, though no award under s. 11, has been
made, might on the expiration of the notice mentioned in s. 9 (1) take
possession of lands, buildings and structures forming part of the land
mentioned in the schedule for public purposes.
Then followed a notice under s. 9 by the
Collector on February 10, 1956, which said that possession would be taken over
15 days after the issue of the notice i. e. on February 25, 1956. On receipt of
this notice, Deoki Nandan appellant filed his objections before the Collector
on February 21, 1956, 430 Two days later, on February 23, 1956, he filed the
writ petition in the High Court out of which the present appeal has arisen.
In this writ petition two main points were
urged on behalf of the appellant. It was first urged that as the acquisition
was for the purposes of scheme No. XX of the Board, action had to be taken in
accordance with s. 114 of the Kanpur Act and the schedule thereto and as no
action had been so taken, the proceedings for acquisition were bad. In the
second place, it was urged that it was not open to the Governor to issue the
notification under s. 6 of the Land Acquisition Act without first taking action
under s. 5-A thereof. It is not in dispute that no action was taken under s.
5-A and no report was made as required therein.
The writ petition was dismissed by the
learned Single judge who heard it. On the first question he held that this was
not a case to which the Kanpur Act applied. On the second question, he held
that s. 17 (4) applied and therefore it was not necessary to take proceedings
to comply with s. 5-A before issuing a notification under s. 6. Then followed
an appeal which was heard by a Division Bench of the High Court. The appeal
court upheld the view taken by the learned Single Judge and dismissed the
appeal. However, the appeal court granted a certificate as prayed for, and that
is how the matter has come up before us.
The same two questions which were agitated in
the High Court have been raised before us. In the first place, it is urged that
as the acquisition was for scheme No. XX of the Board, action should have been
taken under the Kanpur Act and as this was Dot done the entire proceedings are
bad including the issue of the notifications under s. 4 and s.
6. In the second place, it is urged that s.
17 (4) could not 431 apply in the present case and no notification under s. 6
could be issued unless s. 5-A had been complied with. As no such compliance was
admittedly made, the notification under s. 6 in any case is bad, even if the
notification under s. 4 is good.
Turning now to the first point, the main
reliance of the appellant is on s. 114 of' the Kanpur Act, which is in these
terms :"Modification of the Land Acquisition Act, 1894-For the purpose of
the acquisition of land for the Board under the land Acquisition Act, 1894(a)
the said Act shall be subject to the modification specified in the Schedule to
this Act;
(b) the award of the Tribunal shall be deemed
to be the award of the court under the Land Acquisition Act, 1894." We may
also refer to s. 108 which provides for constitution of the tribunal and s. 109
which lays down that the tribunal shall perform the functions of the court with
reference to the acquisition of land for the Board under the Land Acquisition
Act, 1894. Further, it is necessary to refer to s. 71 (1) also which provides
that "the Board may, with the previous sanction of the State Government,
acquire land under the provisions of the Land Acquisition Act, 1894, as
modified by the provisions of this Act, for carrying out any of the purposes of
this Act". The argument on behalf of the appellants is that where land is
acquired for the purposes of the Board action has to be taken under ch. VII
which provides for various kinds of development schemes for the Board and the
procedure for making such schemes. After this procedure laid down in ch. VII is
gone through, (and it is not in dispute that no s c procedure was gone through
in the present case insofar as scheme No. XX is concerned), s. 114 comes 432
into play and acquisition has to take place under the modified provisions of
the Land Acquisition Act even where the Government is acquiring the land.
Stress in this connection is laid on the words "acquisition of land for
the Board" in s. 114, and it is said that whenever there is acquisition of
land for the Board, action can only be taken, even though it is the Government
which is acquiring the land, under the modified provisions of the Land
Acquisition Act ,contained in the Kanpur Act.
We are of opinion that this argument is
fallacious. If one looks at the scheme of the Kanpur Act, one finds that ch.
VII provides for various kinds of development schemes and the procedure for
finalising them. After the scheme is finalised under ch. VII power is given to
the Board to purchase the land required for the scheme or take it on lease
under s. 70. Then s. 71 provides in the alternative that the Board may with the
previous sanction of the State Government acquire land under the provisions of
the Land Acquisition Act as modified by the provisions of the Kanpur Act. It is
only when the Board proceeds to acquire land by virtue of its powers under s.
71 that s. 114 comes into play and the proceedings for acquisition have to take
place under the Land Acquisition Act as modified by s. 114 read with the
schedule. It is true that s. 114 speaks of acquisition of land for the Board,
and the argument is that when s. 114 speaks of acquisition of land for the
Board, it applies to acquisition of land for the Board by the Government and not
to acquisition by the Board, which is provided by s. 71 (1).
This interpretation of' s. 114 is in our
opinion incorrect.
Section 71 certainly provides for acquisition
of land by the Board when it says that the Board may acquire land under the
provisions of the Land Acquisition Act as modified by the Kanpur Act; but that'
acquisition is also by that very section for carrying out the 433 purposes of
the Act i.e. for the Board. Therefore when s. 71 authorises the Board to
acquire land under the Land Acquisition Act as modified by the Kanpur Act, the
acquisition is for the Board. Section 71 further speaks of the modification of
the provisions of the Land Acquisition Act. This modification is not provided
in s. 71 itself. In order to find out the modification we have to go to s. 114.
Therefore, s.114 merely serves the purpose of
indicating the modification which has been mentioned in s. 71. There is no
reason to hold, because the words "acquisition of land for the Board"
appear in s.114, that this acquisition is by the Government for the Board. The
scheme of the Kanpur Act clearly shows that the Board frames a scheme and then
decides to acquire the land for itself tinder s. 71 with the previous sanction
of the State Government. If it so decides, s. 114 applies to such an
acquisition by the Board for itself with the necessary modification in the Land
Acquisition Act. We may in this connection refer to s. 109, which describes the
duties of the tribunal. Now there is no doubt that where the Board is acquiring
land under" s. 71 of the Kanpur Act, it is the tribunal which takes the
place of the court in the Land Acquisition Act. But s. 109 also uses the same
words, namely acquisition of land for the Board.
As the acquisition by the Board is also for
the Board, there can be no doubt that the scheme of the Kanpur Act is that the
Board first proceeds under ch. VII, then decides to acquire land under s. 71.
and if it so decides s.114 comes into play with the modifications in the Land
Acquisition Act mentioned in the schedule. Two modifications in the schedule
are the replacement of the notification under s.4 by the notification under s.
53 in ch. VII and the replacement of notification under s. 6 by the
notification under s.60 also in chap. VI I. It is obvious that ch. VII, s. '11,
s.1 14 and the other provisions in ch. XI dealing with modifications and the
modifications in the schedule are all part of one scheme, where the Board is
acquiring 434 land itself for its own purpose with the previous sanction of
Government; but where the acquisition is, as in the present case, by the
Government under the Land Acquisition Act, for public purpose though that
purpose may be the purpose of the Board, the Kanpur Act has no application at
all., and the Government proceeds to acquire under the provisions of the Land
Acquisition Act alone. The contention therefore on behalf of the appellants
that the Kanpur Act has not been complied with and therefore the proceedings
for acquisition of land are bad has no force and must be rejected.
We now come to the second point raised on
behalf of the appellants. For that purpose we may briefly refer to the scheme
of the Land Acquisition Act, The proceedings for acquisition start with a
preliminary notification under s.4.
By that notification the Government notifies
that land in any locality is needed or is likely to be needed for any public
purpose. On that notification certain consequences follow and authority is
conferred on an officer 'either generally or specially by Government and on his
servants and workmen to enter upon and survey and take levels of any land in
such locality, to dig or bore into the sub-soil, to do all other acts necessary
to ascertain whether the land is adapted for such purpose, to set out the
boundaries of the land proposed, to be taken, and so on. Then s. 5-A provides
that any person interested in any land which has been notified in s.4, may
within thirty days of the issue of the notification object to the acquisition
of the land .or of any land in the locality as the case maybe. Every such
objection shall be made to. the Collector in writing and the Collector has to
give the objector an opportunity of being heard. After hearing all objections
and after making further inquiry if any, as he thinks fit, the Collector has to
submit the case for the decision of the Government together with the record of
the proceedings held by him and the report 435 containing his recommendations
on the objections. the decision of the Government on the objections is final.
Then comes the notification under s.6, which provides that when the appropriate
government is satisfied after considering the report, if any, made under s. 5-A
that any particular land is needed for a public purpose, a declaration shall be
made to that effect and published in the official gazette.
After such a declaration has been made under
s.6, the Collector has to take order for acquisition of land. It is marked out,
measured and planned under s. 8 if necessary and notice is given under s. 9 to
persons interested. The Collector then holds inquiry under s. II and makes an
award.
After the award is made the Collector has got
the power to take possession of the land under s. 16 and the land then vests
absolutely in the Government free from all encumbrances.
It will be clear from this scheme that
compliance with the provisions of s. 5-A is necessary before a notification can
be issued under s. 6. As soon as the preliminary notification is issued under
s.4, the officer authorised by Government may enter upon the land to survey it and
to do all other necessary acts to ascertain whether the land is adapted for the
purpose for which it is to be acquired, and this action, if taken, will give
sufficient notice to those interested to object. If objections are made the
Collector will consider those objections and make his recommendation thereon in
his report to Government. If no objections are made the Collector will report
that no objection has been made and the Government then proceeds to issue a
notification under s.6. In either case however, the Collector has got to make a
report with his recommendations on the objections if they are filed or inform
the Government that there are no objections filed in pursuance of the
notification under s. 4 and it is thereafter that the Government is empowered
under s. 6 to issue a notification.
This, as We have said,is the usual procedure
to be followed 436 before the notification under s.6 is issued: To this usual
procedure there is however an exception under s.17, and that is why in s. 6 we
find the words "if any" in the clause after considering the report ,
if any, made under s. 5A".
When action is taken under s. 17 (4), it is
not necessary to follow the procedure in s. 5-A and a notification under s.6
can be issued without a report from the Collector under s.
5-A. In the present appeals we are concerned
with ss. 17 (1) and 17 (4), which we now read:"17 (1). In cases of
urgency, whenever the appropriate Government so directs, the Collector, though
no such award has been made, may, on the expiration of fifteen days from the
publication of the notice mentioned in section 9, sub-section (1), take
possession of any waste or arable land needed for public purposes or for a
company, such land shall thereupon vest absolutely in the Government, free from
all encumbrances." "17 (4). In the case of any land to which, in the
opinion of the appropriate Government, the provisions of sub-section (1) or
sub-section (2) are applicable, the appropriate Government may direct that the
provisions of section 5A 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 section 4, subsection
(1)." It will be seen that s. 17 (1) gives power to the Government to direct
the Collector, though no award has been made under s. 11, to take possession of
any waste or arable land needed for public purpose and such land thereupon
vests absolutely in the Government free from all encumbrances. If action is
taken under s. 17 (1), taking possession and vesting which 437 are provided in
s. 16 after the award under s. 11 are accelerated and can take place fifteen
days after the publication of the notice under s. 9. Then comes s..17 (4) which
provides that in case of any land to which the provisions of sub-s. (1) are
applicable, the Government may direct that the provisions of s. 5-A shall not
apply and if it does so direct, a declaration may be made under s. 6 in respect
of the land at any time after the publication of the notification under s. 4
(1). It will be seen that it is not necessary even where the Government makes a
direction under s. 17 (1) that it should also make a direction under s. 17 (4).
If the Government makes a direction only under s. 17 (1) the procedure under s.
5-A would still have to be followed before a notification under s. 6 is issued,
though after that procedure has been followed and a notification under s. 6 is
issued the Collector gets the power to take possession of the land after the
notice under s. 9 without waiting for the award and on such taking possession
the land shall vest absolutely in Government free from all encumbrances. It is
only when the Government also makes a declaration under s. 17 (4) that it
becomes unnecessary to take action under s. 5-A and make a report there under.
It may be that generally where an order is made under s. 17 (1), an order under
s. 17 (4) is also passed; but in law it is not necessary that this should be
so. It will also be seen that under the Land Acquisition Act an order under s. 17
(1) or s. 17 (4) can only be passed with respect to waste or arable land and it
cannot be passed with respect to land which is not waste or arable and on which
buildings stand.
This brings us to s. 17 (I-A) introduced in
s. 17 of the Land Acquisition Act by the Land Acquisition (U. P. Amendment)
Act, (No. XXII of 1954). Section 6 of that Act is in these terms :"After
sub-section (1) of section 17 of the Principal Act (i. a. Land Acquisition Act)
the 438 following shall be inserted as a new subsection (I-A):
,(I-A). The power to take possession under
sub-section (1) may also be exercised in the case of other than waste or arable
land, where the land is acquired for or in connection with sanitary
improvements of any kind or planned development." It is not in dispute
before us that the land in the present case was required for planned
development. Therefore subsection (1-A) as inserted by the U. P. Act into the
Land Acquisition Act applies. The contention on behalf of the appellants however
is that sub's. (1-A) gives merely power to take possession of land other than
waste or arable land where the land is acquired for or in connection with sanitary
improvements of any kind or planned development. It is further urged that
sub-s. (1) is mentioned in sub-s. (I -A) merely to import the circumstances in
which the power to take possession may be exercised with respect to land other
than waste or arable and the time when such power may be exercised thearguement
further is that s. 17 (4) was not amended by the U.P. Act XXII by including the
new subs.(1.A) also in that sub-section. Sub-section (4) still stands as it
was; therefore it still applies to waste and arable land only.
There is force in this argument. There has
been no change by the U. P. Act in sub-s. (1) and therefore when sub-s. (4)
speaks of any land to which sub-s. (1) applies it still refers only to waste or
arable land and no other. It is true that by sub s. (I-A) as introduced by U.
P. Act in s. 17, power has been given to take possession in case of land other
than the waste or arable; but this does not necessarily mean that sub-s. (4)
will also apply to a case of )and other than waste or arable simply because
power has been 439 given by sub-s. (I-A) to take possession of land other than
waste or arable. It seems to us that when sub-s. (1) is mentioned in sub-s.
(I-A) as introduced by the U. P. Act it only means that the power can be
exercised to take possession of land other than waste or arable in the same
circumstances and at the same time as it could be exercised with respect to
arable or waste land as provided in sub-s. (1), and nothing more Sub-section
(I-A) as introduced by the U. P. Act therefore has the effect only of
accelerating the taking of possession which normally can take place after the
award has been made under S. 11 in the case of land other than waste or arable
in the circumstances and under the conditions mentioned in sub-s. (1). But
sub-s. (I-A) does not amend sub-s. (1) so as to include within that subsection
land other than waste or arable. Therefore when sub-s. (4) was not amended by
the U. P. legislature to include sub-s. (1-A) as introduced by it can apply
only to waste or arable land mentioned in sub-s. (1), which also remained un amended.
We have already pointed out that it is not necessary in law that when an order
is passed under s. 17 (1), an order under S. 17 (4) must also be passed.
similarly if an order is passed under sub-S.
(1-A) it does not necessarily follow that an order must be passed under S. 17
(4). Sections 17 (1) and 17 (4) are independent of each other in the sense that
an order under the former does not necessarily require an order under the
latter.
Similarly s. 17 (I-A) must be independent of
S. 17 (4) and an order under S. 17 (I-A) would not necessarily mean that an
order under S. 17 (4) must be passed. In these circumstances it seems to us
that if the legislature intended that provisions of sub-s. (4) should also
apply to a case falling under sub-s. (I-A), it has failed to carry out that
intention. Sub-section (I-A) has been added as an independent sub-section and
no amendment has been made either in sub-s. (1) or sub-s. (4); nor has any
separate provision been made 440 for applying sub-s. (4) to a case falling
under sub-s. (I -A) and so subs. (4) cannot be applied to sub-s. (I-A). The
right to file objections under s. 5-A is a substantial right when a person's
property is being threatened with acquisition and we cannot accept that that
right can be taken away as if by a side-wind because sub-s. (I-A) mentions
sub-s. (I). As we have already pointed out sub-s. (1) has been mentioned in sub
s. (I-A) merely to indicate the circumstances and the conditions under which
possession can be taken. The legislature has mentioned sub-s. (1) in sub-s.
(I-A) as a measure of economy; otherwise sub-s. (I-A) would have read as
follows :"In cases of urgency, whenever the appropriate Government so
directs, the Collector, though no such award has been made, may, on the
expiration of fifteen days from the publication of the notice mentioned in
section 9, sub-section (1), take possession of any land other than waste or
arable land for public purposes where the land is acquired for or in connection
with sanitary improvements of any kind or planned development." Now if
there had been Do economy of words and sub-s. (I-A) had read as we have
indicated above, it could Dot have been possible to argue that sub-s. (4) of s.
17 also covered cases of s. 17 (1-A). Therefore, simply because for the sake of
economy of words the legislature has used the words which it did in sub-s.
(I-A), it cannot be said that it was either amending sub-s. (1) or sub-s. (4).
In the absence of such amendment either in sub-s. (1) or sub-s. (4) and in the
absence of any specific provision being introduced in s. 17 by which sub-s. (4)
was also to apply to the new sub-s. (IA), it cannot be said that power was
conferred on the State Government to apply sub-s. (4) also to a case falling
under sub-s. (1-A), 441 simply by the introduction of sub-s. (I-A) in the form
in which it was introduced in s. 17. We are therefore of opinion that it was
not open to the State Government to say in the notification under s. 4 that
proceedings under s. 5-A shall not take place. This part of the notification
under s. 4 is therefore beyond the powers of the State Government.
In consequence the notification under s. 6
also as it was issued without taking action under s. 5-A must fall. The appeals
must therefore be allowed and the notification under s. 6 and that part of the
notification under s. 4, which says that the-Governor was pleased to direct
that under subs. (4) of s. 17, the provisions of s. 5A shall not apply, are bad
and are hereby set aside. Rest of the notification under s. 4 will stand and it
will be open to the Government if it so chooses to proceed with the acquisition
after action is taken under s. 5-A and thereafter to issue a notification under
s. 6 of the Land Acquisition Act. In the circumstances we feel that the
appellants should be given an opportunity under s. 5-A now, though the period
for making objections provided in that section expired long ago in view of the
misunderstanding of the law on the part of the Government by treating the
objections made before the Collector after the issue of the notices under s. 9
as objections under s. 5-A. The appellants will get their costs of this Court
from the respondents; one set of hearing fee.
Appeals allowed.
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