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PETITIONER: THE STATE OF UTTAR PRADESH & ANR.

       Vs.

RESPONDENT: KESHAV PRASAD SINGH

DATE OF JUDGMENT25/07/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J)

CITATION:  1995 AIR 2480            1995 SCC  (5) 587  JT 1995 (6)    96        1995 SCALE  (4)783

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the Judgment of the  Division Bench  of the  Allahabad High Court in Writ Petition No.1179/77  dated the  July 19, 1977. The facts lie in a  short compass.  The land comprising 205 links situated in plot no.702 which comprises a total area of 580 links was acquired in the year 1963 for the construction of PWD office building in  Sharjuddinpur in  Azamgarh city.  While  making construction, it was indeed, as found by the Civil Court, at a suit  of the respondent that the State had encroached upon 140 links  of the  land in  the said  plot no.702  which was subsequently demarcated  as plot  nos.702/A and described as plot nos.702/4  (68 links)  and 702/5  (72 links). The Civil Court  issued  a  mandatory  injunction  directing  the  PWD Department to  remove  the  encroachment.  The  State  while carrying the  matter in  appeal, simultaneously  invoked its power  of  eminent  domain  and  issued  notification  under Section 4(1)  of the  Land Acquisition Act, 1894 (for short, ‘the Act’) which was published on October 26, 1972. The said notification came to be questioned in the High Court in this Writ Petition  on two  grounds and  the  High  Court  found, firstly, that  the power  exercised under  s.17(1)  was  not justified since  the land  is neither  waste nor arable land and that,  therefore, the  notification dispensing  with the inquiry under  s.5(A) was clearly illegal. It was also found that  since   the  Civil  Court  that  the  appellants  have encroached upon  the land  and issued a mandatory injunction for demolition of the compound wall constructed thereon, the exercise of  power under  s.4(1) was  colourable, since  the appellants did  not admit  that the  property belongs to the respondents and  had carried  the matter  in appeal  to  the District Judge.  Accordingly, the  notification under s.4(1) and the declaration under s.6 came to be quashed. Thus, this appeal by special leave.      It is  contended for  the State  that the view taken by

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the High  Court is  clearly unsustainable.  When  the  State found that there is mandatory injunction issued by the Court holding that  the respondent  is owner  of the land and that the construction was made on a land which is not part of the land acquired in 1963, the Government exercised the power of eminent domain and that, therefore, the State is entitled to issue the  notification under  s.4(1). It  is also contended that since  the compound wall was already constructed and as mandatory injunction was operating against the appellant for its demolition, the Government was justified to exercise its power under  s.17(1) read  with s.17(4)  dispensing with the inquiry under Section 5A of the Act.      Sri Manoj Swarup, the learned counsel appearing for the respondent in  his usual  vehemence contends  that this is a clear case  of mala  fide and  colourable  exercise  of  the power. In  view of  the fact  that the  Government  had  not admitted the  right of the respondents the State had taken a different stand  that it  was a  mistaken  identity  of  the property and  since the  Civil Court recorded a finding that the respondent  is the  owner of  the land  the  Government, without  surrendering   possession  or   demolition  of  the compound  wall,   cannot  justify  its  unlawful  action  by exercising the  power of eminent domain. It cannot issue the notification  under   s.4(1)  to   nullify  the   decree  of injunction of  the Civil  Court. Thus,  it would  constitute colourable  exercise  of  power  and  this  Court  would  be reluctant to  justify  such  action  under  Article  136  to support such  high-handed and  illegal action on the part of the State.  It is  also contended  that since land is not an arable land,  the exercise  of power under s.17(1) read with s.17(4) is clearly illegal.      Having considered the respective contentions, we are of the considered  view that  the conclusion  of the High Court was clearly  illegal. It  is seen that the land acquired was for a public purpose. Admittedly, the same land was acquired in the  year 1963  for  building  a  PWD  office  and  after construction compound  wall was  also constructed to protect the building.  As found  by the  Civil  Court,  on  adducing evidence in  a suit, that the Department had encroached into respondent’s land  which was  directed to  be demolished and delivery of  possession to  be given.  It is  seen that when that land  was needed  for a public purpose, i.e. as part of public office,  the State  is entitled to exercise its power of eminent domain and would be justified to acquire the land according to  law. Section  4(1) was,  therefore,  correctly invoked to  acquire the land in dispute. It is true that the State had not admitted that its officers had encroached upon the respondent’s  land and had carried the matter in appeal. The finding of the Civil Court was that the property belongs to the  respondent. The  factum of  the action under the Act implies admission  of the  title of  the respondent  to  the extent  of   land  found   by  the  civil  court  to  be  an encroachment. Though  the State  chose to  file  the  appeal which was pending, better Judgment appears to have prevailed on the  State to  resort to  the  power  of  eminent  domain instead of  taking a decision on merits from a Court of Law. In view of the fact that the PWD Office building was already constructed and  a compound  wall was  needed  to  make  the building safe  and secure and construction was already made, which is  a public purpose, the exercise of power of eminent domain is  perfectly warranted  under law. It can neither be said to  be colourable  exercise of  power nor  an arbitrary exercise of power.      The next  question is  whether the  Government would be justified in exercising its power under s.17(4) and dispense

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with the inquiry under s.5A of the Act. Mandatory injunction issued by  the Civil Court to demolish the compound wall and to restitute possession to the respondent had to be complied with. There  is thus urgency. The public purpose was obvious as the  compound was  required to be retained to protect the safty of  the office. The object of s.5A enquiry was to show whether there  was no  public purpose  or the  land was  not suitable or  some other  lands may  be acquired.  All  these relevant and related facts are redundant due to the facts of the case.      So,  on   the  facts  and  in  the  circumstances,  the Government was  justified in  exercising their  power  under s.17(4)  invoking  urgency  clause  and  dispense  with  the inquiry under s.5A. By no stretch of imagination it could be said that  there was  no public  purpose, for  which inquiry under s.5A could be made and decision taken. In that view of the matter,  the High Court was clearly in error in allowing the Writ  Petition and  committed a manifest error of law in quashing the notification under s.4(1) and declaration under s.6 of the Act.      In view  of the  fact that  the matter is pending for a long time,  the Land Acquisition Officer is directed to pass an award  within six  months from the date of the receipt of the order of this Court. It is open to the respondent to put forth his  claim for  compensation according  to law  and it would be  decided by  the Land Acquisition Officer according to law. The Appeal is allowed and the W.P. stands dismissed. No costs.