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TMI Blog1963 (4) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 It may be mentioned that the Improvement Trust Kanpur has now been replaced by the Development Board Kanpur (hereinafter referred to as the Board) by the Kanpur Urban Area Development Act, No. VI of 1945, (hereinafter referred to as the Kanpur Act), which repealed the U.P. Town Improvement Act, No. III of 1920, insofar as it applied to Kanpur.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 happened to scheme No. XX after 1932; but it does appear that it was not fully carried out. 4. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. 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 not 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 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. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings 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 may be. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low 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 Sections 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 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 section 4, sub-section (1)." 13. It will be seen that s. 17(1) gives power to the Government to direct the Collector, though no award has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, where the land is acquired for or in connection with sanitary improvements of any kind or planned development." 15. It is not in dispute before us that the land in the present case was required for planned development. Therefore sub-section (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. (1-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. The argument further is that s. 17(4) was not amended by the U.P. Act XXII by including the new sub-s. (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. 16. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion been made for applying sub-s. (4) to a case falling under sub-s. (1-A) and so sub-s. (4) cannot be applied to sub-s. (1-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. (1-A) mentions sub-s. (1). As we have already pointed out sub-s. (1) has been mentioned in sub-s. (1-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. (1-A) as a measure of economy; otherwise sub-s. (1-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." 17. Now if there had been no economy of words and sub-s. (1-A) had read as w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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