# Madan Lal Ahuja v. State of U.P. & Ors

- **Citation:** (2016) 5 ILRA 1643
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-17
- **Bench:** Sudhir Agarwal, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madan-lal-ahuja-v-state-of-u-p-ors-43799
- **Pages:** 19

## Text

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5 All. Madan Lal Ahuja Vs State Of U.P. & Ors.

1643
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ C No.- 4490 Of 1986

Madan Lal Ahuja ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for Petitioner:
H.S. Nigam, Ajit Kumar, Arun Kumar, B.D. Mandhyan, Manu Saxena, Manish Goyal

Counsel for Respondents:
S.C., A.P. Paul, B.B. Paul, M.B. Singh, R.B. Singhal, Satish Chaturvedi

Head-Notes:
Land Acquisition Act, 1894 - Sections 4, 5-A, 6, 17(1), 17(4) -

Acquisition of Nazul land - State cannot acquire its own land -

Nazul land vests in State - No transfer of ownership involved - Acquisition proceedings qua land itself
impermissible - Only leasehold rights or super-structures, if any, could be subject of acquisition -
Notifications proposing acquisition of Nazul land held void.

Urgency clause - Dispensation of Section 5-A enquiry -

Exceptional power - To be exercised sparingly - Planned development / commercial centre conceived
decades earlier - Delay of several years belies urgency - Mere public purpose insufficient - No material to
show that even minimal delay would frustrate object - Invocation of Section 17(4) held arbitrary and illegal.

Section 5-A - Right of objection -

Valuable and substantive right - Embodiment of natural justice - Cannot be taken away mechanically -
Absence of real, immediate urgency vitiates acquisition.

Tenant / allottee - Locus standi -

Tenant under statutory allotment order is a "person interested" - Entitled to challenge acquisition affecting
tenancy and super-structure - Objection as to non-joinder of original lessee rejected.

Validation Ordinance / Amendment -

U.P. Ordinance No. 32 of 1990 / U.P. Act No. 5 of 1991 -
1644 INDIAN LAW REPORTS ALLAHABAD SERIES
Validation limited to simultaneous publication under Sections 4 and 6 - No relevance where acquisition itself
is fundamentally invalid.

Held:
Nazul land being State-owned cannot be acquired by the State under the Land Acquisition Act, 1894.

Acquisition notifications dated 21.01.1986 (Section 4) and 23.01.1986 (Section 6), insofar as they relate to
Nazul land, are ultra vires and void.

Invocation of urgency powers under Sections 17(1) and 17(4) and dispensation of enquiry under Section 5-A
were unjustified and illegal.

Petitioner-tenant had locus to maintain the writ petition.

Both impugned notifications quashed with costs.

Result:
Writ Petition Allowed. Notifications dated 21.01.1986 and 23.01.1986 set aside qua petitioner's land with cost
which we Costs: ₹20,000/-

(Delivered by Hon'ble Sudhir Agarwal, J.
&
Hon'ble Shamsher Bahadur Singh, J.)

1. Heard Sri Manish Goyal, learned counsel for petitioner, Sri A.P. Paul, learned counsel
appearing for Allahabad Development Authority, learned Standing Counsel and perused the record.

2. This writ petition under Article 226 of the Constitution of India has been filed assailing
notifications dated 21.01.1986 issued under Section 4(1) of Land Acquisition Act, 1894
(hereinafter referred to as 'Act, 1894') and dated 23.01.1986 issued under Section 6(1) of Act, 1894
proposing to acquire land, bearing Khasra No. 3, area 5 bigha, 7 biswa and 14 biswansi (2 acres i.e.
4591 sq. yard) situate at Civil Station, Chail, Allahabad.

3. The aforesaid notifications were issued at the instance of Allahabad Development
Authority (hereinafter referred to as 'A.D.A.'), who required aforesaid land for establishment of
"Light Industries and District Commercial Centre" in Allahabad, under Planned Development
Scheme. While issuing notification under Section 4(1), State also dispensed with inquiry under
Section 5-A by invoking provisions of Section 17(1) & (4) of Act, 1894 and while making
declaration under Section 6(1), Government has authorised Collector to take possession of acquired
land under Section 17(1) on expiration of 15 days from publication of notice under Section 9(1),
even though, award under Section 11 has not been made.

4. Petitioner has set-up its case stating that, Hanumat and Ram Pal Trust, Kalakakar
(hereinafter referred to as the 'Trust') is lessee of aforesaid site no.3 and a major portion of said site
is constructed having two buildings, wherein a hotel under the name and style of 'Royal Hotel' is
5 All. Madan Lal Ahuja Vs State Of U.P. & Ors.

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working. Petitioner is a tenant in southern portion of acquired land and an area of 1 acre i.e. 1804
sq. yard is in possession of petitioner, pursuant to an allotment order dated 28.11.1950 issued by
Rent Control and Eviction Officer, Allahabad (hereinafter referred to as 'R.C.E.O.'). The other part
of construction includes an annexe of hotel in which three rooms have been constructed. It is also
used as part of hotel. Apart from lodging and boarding facility provided to customers, the hotel also
houses, offices of Mahabir Finance Company and M/s Ram Mal-Shyam Das, which were carrying
on their business in the said premises. The northern portion of site is also occupied to a large extent
by constructions and is used as a residential premises by about 30 families. 'Royal Hotel' is one of
the oldest renowned hotel in Allahabad City and normally has occupancy of 60% throughout the
year. It is recognised by Department of Tourist and Federation of Hotels and Restaurants
Association of U.P.

5. The acquisition notifications have been challenged firstly, on the ground that State
proposed to acquire land which is 'Nazul' and therefore owned by State itself, hence there is no
question of acquiring such land, which already belong to State. The tenancy right and superstructure existing on said land have not been sought to be acquired and acquisition notification
proposing to acquire land, which already belong to State, is wholly illegal. Secondly, that
dispensation of inquiry under Section 5-A of Act, 1894 is wholly arbitrary, inasmuch as, there is no
such urgency, which justify dispensation of inquiry under Section 5-A and there is no material
justifying the same. Therefore, dispensation of inquiry under Section 5-A is patently illegal.
Thirdly, that requirement of publication of notification in two newspapers has not been observed.
No public notice was issued and for that reason also, acquisition notifications are bad in law.

6. A.D.A. got itself impleaded pursuant to Court's order dated 20.01.1988 and has filed a
counter affidavit to contest writ petition. It is stated that on 06.02.1985 A.D.A. submitted an
application to Collector for acquisition of land in dispute. Lease of land granted to Trust expired on
14.04.1962. Petitioner or anyone else have no right in law to continue in possession of disputed
land. It is however admitted that disputed land is 'Nazul'. The construction of buildings existing on
disputed land are very old and in dilapidated condition. The buildings have out-lived their utility.
50% of land is vacant. Existence of a building being used as 'Royal Hotel', however, is not
disputed, though other facts like 60% occupancy throughout year is disputed. Justifying acquisition,
it is said that A.D.A. thought of establishing a market centre in Allahabad considering growing
population and demand for such commercial establishment in the city. In Master Plan, site has been
reserved for establishment of Light Industry and District Commercial Centre. Master plan for
Allahabad City was prepared and approved by State of U.P. The said plan was prepared in
accordance with U.P. Regulation and Building Operation Act, 1958 (hereinafter referred to as 'U.P.
Act, 1958') in the year 1972 and published for information of general public on 11.07.1973. After
enactment of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as 'U.P. Act,
1973'), A.D.A. was constituted and it adopted master plan published on 11.07.1973 vide resolution
dated 07.12.1974. Master Plan approved under U.P. Act, 1958 continued to operate by virtue of
Section 59 of U.P. Act, 1973. Idea to develop a Commercial Centre was conceived in 1972 but
could not be executed and in 19 years, pressure from population has increased to such an extent
1646 INDIAN LAW REPORTS ALLAHABAD SERIES
that now it has become urgent to give shape to the aforesaid proposal and that is how notifications
for acquisition have been issued in January 1986.

7. A.D.A. has further given details of some other constructions of residential schemes etc.,
which in our view, are not relevant for the purpose of deciding issues raised in this writ petition.

8. Petitioner has filed a rejoinder affidavit, in which it has reiterated what it has stated in
writ petition and disputed and contradicted claim set-up by A.D.A. in the counter affidavit.

9. Before proceeding further, it would also be necessary to refer to enactment of Land
Acquisition (U.P. Amendment and Validation) Ordinance, 1990 (U.P. Ordinance No. 32 of 1990),
which proposes to insert a Proviso in Section 17(4) and declare that the same shall be deemed to
have been inserted on 24.09.1984, it reads as under :

"Provided that where in the case of any land, notification under section 4, subsection (1) has been published in the official gazette on or after September 24, 1984 but before
January 11, 1989 and the appropriate Government has under this sub section directed that the
provisions of section 5-A shall not apply, a declaration under section 6 in respect of the land may
be made either simultaneously with, or at any time after the publication in the official gazette of
the notification under Section 4. sub section (1)."

10. There is also a validation Clause. Section 3 of aforesaid Ordinance, reads as under :

"Notwithstanding any Judgment, decree or order of any Court, Tribunal or other
authority, no acquisition of land made or purporting to have been made under the principal Act
before the commencement of this Ordinance, and no action taken or thing done (including any
order or declaration made) agreement entered into or notification published in connection with
such acquisition, which is in conformity with the provisions of the principal Act as amended by this
Ordinance, shall be deemed to be invalid or ever to have been invalid merely on the ground that
declaration under Section 6 was published in the official gazette on the same date on which
notification under section 4 sub-section (1) was published in the official gazette or on any other
date prior to the date of publication of such notification as defined in sub-section (1) of section 4."

11. The aforesaid proviso subsequently became part of Act i.e. U.P. Act No.5 of 1991. It
only validates a publication under Section 6 on the same date on which a notification under Section
4 was issued, hence for the purpose of issues raised in this writ petition, we do not find any
relevance of said provision, though, vires of aforesaid Proviso and Validation Clause has been
challenged by amendment in writ petition. Since issue raised to assail acquisition notifications are
different and are not affected by the said Proviso, no argument has been advanced in respect to
validity of said Proviso, hence, we do not find any reason to look into this question.

12. Now coming to the issues, we find it admitted that land in question is 'Nazul'.
5 All. Madan Lal Ahuja Vs State Of U.P. & Ors.

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13. A lease was executed of entire land in favour of 'Trust' with authority to raise
construction on said land. 'Trust' raised constructions on the land in dispute whereupon a hotel was
running on some part of such constructed portion and on other part there was occupation of tenants
inducted voluntarily by original lessee or got tenancy rights in view of allotment orders passed by
R.C.E.O. Lease rights of original lessee in respect to land in dispute expired in 14.04.1962. State
however has not exercised any right of Resumption or Re-Entry in land and that is how original
lessee as well as subsequent occupants are continuing in occupation.

14. Though the land indispute is admittedly 'Nazul' but the question is whether 'Nazul' is
land owned by State or it has some different characteristic. Counsel for petitioner clearly submitted
that 'Nazul' is nothing but a land owned by State though authorises to be administered by local
administration. Learned counsel appearing for A.D.A. sought to argue that State is empowered to
acquire even a 'Nazul' land.

15. There appears to be some confusion with respect to meaning of term 'Nazul' and it
appears that authorities are not very clear as to what 'Nazul' is. It could be convenient for us to refer
from a judgment of Special Bench (in which one of us Sudhir Agarwal, J. was member) rendered in
Sunni Central Board of Waqfs vs. Sri Gopal Singh Visharad and others 2010 ADJ (1) SFB)
(LB) wherein "what a 'Nazul' land is" has been considered in detail and this Court in majority
judgment of Sudhir Agarwal, J. has observed as under:

"4430. In the Legal Glossary 1992, fifth edition, published by the Legal Department
of the Government of India at page 589, the meaning of the word "Nazul" has been given as
"Rajbhoomi i.e. Government land". It is an Arabic word and it refers to a land annexed to Crown.
During the British Regime, immoveable property of individuals, Zamindars, Nawabs and Rajas
when confiscated for one or the other reason, it was termed as "Nazul property". The reason being
that neither it was acquired nor purchased after making payment. In the old record, we are told
when they used to be written in Urdu, this kind of land was shown as "Jaidad Munzabta".

4431. For dealing with such property under the authority of the Lt. Governor of
North Western provinces, two orders were issued in October, 1846 and October, 1848 wherein
after the words "Nazul property" its english meaning was given as "Escheats to the Government".
Sadar Board of Revenue on 20th May, 1845 issued a circular order in reference to Nazul land and
in para 2 thereof it mentioned "The Government is the proprietor of those land and no valid title to
them can be derived but from the Government." The Nazul land was also termed as confiscated
estate. Under circular dated 13th July, 1859, issued by the Government of North Western
Provinces, every Commissioner was obliged to keep a final confiscation statement of each district
and lay it before the Government for orders. The kingdom of Oudh was annexed by East India
Company in 1856. It declared the entire land as vested in the Government and thereafter settled the
land to various individuals Zamindars, Nawabs etc.

4432. At Lucknow revolt against the British Company broke up in May, 1857 which
is known as the first war of independence which very quickly angle a substantial part of north
1648 INDIAN LAW REPORTS ALLAHABAD SERIES
western provinces. After failure of the above revolution, the then Governor General Lord Canning
on 15th May, 1858 issued a proclamation confiscating propriety rights in the soil with the
exception of five or six persons who had given support and assistance to British Officers. This land
was resettled first for a period of three years and then permanent propriety rights were given to
certain Talukdars and Zamindars by grant of 'Sanad' under Crown Grants Act. In the meantime we
all know that under the Government of India Act, 1858 the entire Indian Territory under the
Control of East India Company was placed under Crown w.e.f. First November, 1858. A kind of
first settlement in summary we undergone in Oudh in 1861 wherein it appears that the land in
dispute was shown as Nazul and since then in the records, the nature of land is continuously being
mentioned as Nazul.

4435. The claim of the muslim parties is that the entire territory which came in the
control of Babar after defeating Ibrahim Lodhi and others became his land since king was the
owner of the land and no system of private ownership was recognized and therefore, he was at
liberty to direct for any kind of construction on such land and the land could not have been treated
to be owned by any private individual or anyone else.

4436. Let us consider this aspect also in the context of the theory of 'Nazul'. Such
kind of land cannot be a Nazul land. If the entire territory during Mughal regime would that of a
king, as soon as the territory annexation or otherwise changed its hand with the East India
Company, they would have entered into the shoes of the Mughal king and got the same rights,
obligations, privileges etc. on the land. The status of the land would not have changed in such a
manner. Such a land could not be confiscated since it was already the land of the king but when a
proclamation was issued for confiscating the land, meaning thereby the East India Company or the
British Government did not follow the same principle. In our view, in such a matter, even the
doctrine of "escheat" or "bona vacantia" may not be applicable

4437. The question as to who could have been owner of the land in 1528 AD when
alleged that the disputed building was constructed by Babar through his Commander Mir Baqi, the
concept sought to be canvassed is that law, whether Islam or Hindu Shastras, do not recognise any
personal right of ownership upon immoveable property. The entire property within the suzerainty
of the king belong to him, who had right to tax its subject in the form of tax or otherwise by
realising share in the agricultural or other income in the immoveable property. The percentage of
share may differ and that may not be relevant for our purpose.

4438. The second aspect of the matter is that since ancient time the right of
ownership proceeded with possession and is recognized by the well known principle "possession
follows title". The individual right of ownership therefore was well recognized in the various
personal laws and the only right the king had to acquire the land in known valid means, namely by
purchase or gift etc. The obligation upon the king is to protect the subject and his property from
enemies and for that purpose he used to raise revenue from the subject in the form of tax and/ or
share from the income of the property etc. It is said that the King, by virtue of its authority, was not
the sole owner of the entire immoveable property within his suzerainty but though the immoveable
5 All. Madan Lal Ahuja Vs State Of U.P. & Ors.

1649
property was subject to his suzerainty, the individual right of the owner on the property continued
to be recognized. Besides, the fact that the land could have been acquired by the king by valid
means like purchase, gift etc., meaning thereby other modes of acquisition of immoveable property
by King existed otherwise no private owner of the land in question would have been there within
his suzerainty.

4439. The learned counsel for the parties in this aspect referred to the doctrine of
Escheat/bona vacantia. We find that the right of the King to take property by escheat or as bona
vacantia was recognized by common law of England. Escheat property was the lord's right of reentry on real property held by a tenant dying intestate without lawful heirs. It was an incident, of
feudal tenure and based on the want of a tenant to perform the feudal services. On the tenant dying
intestate without leaving any lawful heirs, his estate came to an end and the lord was in by his own
right and not by way of succession or inheritance from the tenant to re-enter the real property as
owner. In most of the cases the land escheated to the Crown as the lord paramount, in view of the
gradual elimination of intermediate or mesne lords since 1290 AD. The Crown takes as bona
vacantia goods in which no one else can claim property. In Dyke Vs. Walford 5 Moore PC 434 =
496-13 ER 557 (580) it was said "it is the right of the Crown to bona vacantia to property which
has no other owner." The right of the Crown to take as bona vacantia extends to personal property
of every kind. Giving a notice at this stage that the escheat of real property of an intestate dying
without heirs was abolished in 1925 and the Crown cannot take its property as bona vacantia. The
principle of acquisition of property by escheat i.e right of the Government to take on property by
escheat or bona vacantia for want of a rightful owner was enforced in the Indian territory during
the period of East India Company by virtue of statute 16 and 17 Victoriae, C. 95, Section 27.

4440. We may recollect having gone through the history that several estates were
taken over by British Company by applying the doctrine of lapse like Jhansi which was another
kind of the above two principles. The above provisions had continued by virtue of Section 54 of
Government of India Act, 1858, Section 20(3)(iii) of Government of India Act, 1915 and Section
174 of the Government of India Act, 1935. After the enactment of the Constitution of independent
India, Article 296 now provides :

"Subject as hereinafter provided, any property in the territory of India which, if this
Constitution had not come into operation, would have accrued to His Majesty or, as the case may
be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful
owner, shall if it is property situate in a State, vest in such State, and shall, in any other case, vest
in the Union."

4441. The Apex Court in Pierce Leslie and Co. Ltd. (supra) has considered the
above principles in the context of sovereign India as it stands under its constitution after
independence and has observed that "in this country the Government takes by escheat immoveable
as well as moveable property for want of an heir or successor. In this country escheat is not based
on artificial rules of common law and is not an incident of feudal tenure. It is an incident of
1650 INDIAN LAW REPORTS ALLAHABAD SERIES
sovereignty and rests on the principle of ultimate ownership by the State of all property within its
jurisdiction."

4442. The Apex Court placed reliance on Collector of Masulipatam Vs. C. Vencata
Narainapah 8 MIA 500, 525; Ranee Sonet Kowar Vs. Mirza Himmut Bahadoor (2) LR 3 IA 92,
101, Bombay Dyeing & Manufacturing Co. Vs. State of Bombay (1958) SCR 1122, 1146, Legal
Remembrancer Vs. Corporation of Calcutta (1967) 2 SCR 170, 204.

4443. The Judicial Committee in Cook Vs. Sprigg 1899 AC 572 discussing what is
an act of state, observed :

"The taking possession by Her Majesty, whether by cession or by any other means
by which sovereignty can be acquired, was an act of State."

4444. This decision has been followed in Raja Rajinder Chand Vs. Mst. Sukhi and
others AIR 1957 S.C. 286.

4445. In Vajesingji Joravarsingji Vs. Secretary of State AIR 1924 PC 216, Lord
Dunedin said :

"When a territory is acquired by a sovereign State for the first time, that is an act of
State. It matters not how the acquisition has been brought about. It may be by conquest, it may be
by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a
recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good
in the municipal Courts established by the new sovereign only such rights as that sovereign has,
through his officers, recognised. Such rights as he had under the rule of predecessors avail him
nothing."

4446. In Dalmia Dadri Cement Co. Ltd. Vs. Commissioner of Income-tax AIR
1958 SC 816, the Court said :

"The expression 'act of State' is, it is scarcely necessary to say, not limited to hostile
action between rulers resulting in the occupation of territories. It includes all acquisitions of
territory by a sovereign State for the first time, whether it be by conquest or cession."

4447. In Promod Chandra Deb Vs. State of Orissa AIR 1962 SC 1288, the Court
said, " 'Act of State' is the taking over of sovereign powers by a State in respect of territory which
was not till then a part of its territory, either by conquest, treaty or cession, or otherwise."

4448. To the same effect was the view taken by the Constitution Bench in
Amarsarjit Singh Vs. State of Punjab AIR 1962 SC 1305 in para 12 as under :
5 All. Madan Lal Ahuja Vs State Of U.P. & Ors.

1651

"It is settled law that conquest is not the only mode by which one State can acquire
sovereignty over the territories belonging to another State, and that the same result can be
achieved in any other mode which has the effect of establishing its sovereignty."

4449. In Thakur Amar Singhji Vs. State of Rajasthan AIR 1955 SC 504, in para
40, the Court said :

"The status of a person must be either that of a sovereign or a subject. There is no
tertium quid. The law does not recognise an intermediate status of a person being partly a
sovereign and partly a subject and when once it is admitted that the Bhomicharas had
acknowledged the sovereignty of Jodhpur their status can only be that of a subject. A subject might
occupy an exalted position and enjoy special privileges, but he is none the less a subject ..."

4450. In State of Rajasthan and Others Vs. Sajjanlal Panjawat and Others AIR
1975 SC 706 it was held that the Rules of the erstwhile Indian States exercised sovereign powers,
legislative, executive and judicial. Their firmans were laws which could not be challenged prior to
the Constitution. The Court relied on its earlier two decisions in Director of Endowments, Govt. of
Hyderabad Vs. Akram Ali AIR 1956 SC 60, and Sarwarlal Vs. State of Hyderabad AIR 1960 SC
862.

4451. In Promod Chandra Deb Vs. State of Orissa A.I.R. 1962 S.C. 1288 "act of
the State" was explained in the following words:

"an "act of State" may be the taking over of sovereign powers either by conquest or
by treaty or by cession or otherwise. It may have happened on a particular date by a public
declaration or proclamation, or it may have been the result of a historical process spread over
many years, and sovereign powers including the right to legislate in that territory and to
administer it may be acquired without the territory itself merging in the new State."

4452. This decision has been followed later on in Biswambhar Singh & Anr. Vs.
The State of Orissa & Ors. 1964(1) Supreme Court Journal 364.

16. Thus, a territory acquired by a sovereign State is an Act of State but the land
comprising territory does not become the land owned by State. The land owned by State may come
to it in various ways, like confiscation, purchase, escheat or bona vacantia, gift etc. In such a case
the ownership vests in State, like any other individual and State is free to deal with the same in a
manner like any other owner may do so.

17. Thus 'Nazul' is a land vested in State for any reason whatsoever that is cession or
escheat or bona vacantia, for want of rightful owner or for any other reasons and once land belong
to State, it will be difficult to assume that State would acquire its own land. It is per se
impermissible to acquire such land by forcible acquisition under Act, 1894, since there is no
1652 INDIAN LAW REPORTS ALLAHABAD SERIES
question of any transfer of ownership from one person to another but here State already own it,
hence there is no question of any acquisition.

18. The proposition advanced by learned counsel for petitioner that acquisition
notifications proposing to acquire 'Nazul', a land, which already vest in a State are illegal and
invalid in law, has substance and we are inclined to accept the same. In our view, first flaw in
acquisition notifications, impugned in this writ petition, is that land in question being 'Nazul', i.e. a
land already vested in State, could not have been acquired by it. Only lease rights of any
occupier/occupant and if there existed any superstructure, same could have been acquired but land
being in ownership of State already, could not have been acquired by State itself.

19. The above proposition is no more res integra having already been considered and
decided in a plethora of authorities, some of which may be referred to herein.

20. In Secretary of State Vs. Narain Khanna AIR 1942 Privy Council 35, it was held;

"where Government acquires any property consisting of land and buildings, and
where land was the subject matter of Government grant, subject to power of resumption by
Government at any time on giving one month's notice, then compensation was payable only in
respect of such buildings as may have been authorised to be erected and not in respect of land."

(emphasis added)

21. A Division Bench of Judicial Commissioner in Md. Wajeeh Mirza vs. Secretary of
State for India in Council AIR 1921 Oudh 31, Court said as under :

"when Government itself claims to be owner of the land, there can be no question of
its acquisition and the provisions of the Land Acquisition Act cannot be applicable. This opinion
expressed by Judicial Commissioner has been approved in Sharda Devi vs. State of Bihar and
another (supra). Court reiterate in Sharda Devi vs. State of Bihar and another (supra) that land
or an interest in land pre-owned by State cannot be subject-matter of acquisition by State. If the
land in question is Government land, there is no question of initiating proceedings of acquisition at
all. Government would not acquire the land, which already vests in it.

22. In Sharda Devi Vs. State of Bihar and another 2003 (3) SCC 128, Court has said as
under :

 "the State does not acquire its own land for it is futile to exercise the power of eminent
domain for acquiring rights in the land, which had already vests in the State. It would be absurdity
to comprehend the provisions of Land Acquisition Act being applicable to such land wherein
ownership or the entirety of rights already vests in State. In other words, land owned by State on
which there are no private rights or encumbrances is beyond the preview of provisions of Land
Acquisition Act."
5 All. Madan Lal Ahuja Vs State Of U.P. & Ors.

1653
(emphasis added)

23. In Collector of Bombay Vs. Nusserwanji Rattanji Mistri (1996) 10 SCC 150, it was
held;

"under the provision of Land Acquisition Act, Government acquires the sum total of
all private interests subsisting in them. If Government has itself an interest in land, it has only to
acquire other interest outstanding thereof so that it might be in a position to pass it on absolutely
for public user."

(emphasis added)

24. In State of U.P. and another Vs. Lalji Tandon (dead) through Legal
Representatives (2004 (1) SCC 1) referring to the decision in Sharda Devi vs. State of Bihar
(supra), court said as under :

"the notification and declaration under Sections 4 and 6 of the Land Acquisition Act
for acquisition of the land i.e. the site below the bungalow are meaningless. It would have been
different if the State would have proposed the acquisition of lease hold rights and/or the
superstructure standing thereon, as the case may. But that has not been done."

25. In Ahmad Borthers Vs. State of M.P. And another 2005 (1) SCC 545, Court said as
under :

" if the state was owner of the land in question, there was no reason to acquire its
own land".

26. In Harish Tandon Vs. State of U.P. and another reported in 2006 (4) ADJ
415(All)(DB) this Court has referred to definition and meaning of 'Nazul' as contained in 'Nazul'
manual which is a compilation of Executive Orders dealing with 'Nazul' and said as under:

"Nazul means any land or building which, being the property of Government is not
administered as a State property under the control of the Land Reforms Commissioner, or the
forest, or the Irrigation Department, or is not under the control of the Military, Postal, Telegraph,
Railway or other purely Central Government Department."

27. Court has relied on Sharda Devi vs. State of Bihar and another (supra) to observe
that Government cannot acquire its own land or the land which already vests in it.

28. Thus, we have no hesitation in holding that impugned notifications, insofar as, the same
propose to acquire land in dispute, which is 'Nazul', are not valid.
1654 INDIAN LAW REPORTS ALLAHABAD SERIES
29. Now we come to second question, "whether there existed circumstances to justify
dispensation of inquiry under Section 5-A by invoking provision of Section 17 (1) & (4) of Act,
1894".

30. The only reason given is that land was required for Commercial Centre which was in
'public interest' and such construction of Commercial Centre was an urgent need. In this regard, we
may refer to a few dates, though mostly referred earlier.

31. A.D.A. admitted that scheme of establishment of Light Industries and District
Commercial Centre was conceived in master plan in 1972 and it took more than a decade to give it
a shape by taking further steps for acquisition. Application was submitted by A.D.A. to Collector
requesting for acquisition of disputed land on 6.2.1985 i.e. after almost thirteen years. State
Government took more than 11 months in issuing notification under Section 4(1) of Act, 1894. Still
it is being pleaded by respondents that there was such an urgency to acquire land that a few weeks
or one or two months, which may have taken, if an inquiry would have been made under Section 5A, could not have been waited and this inquiry had to be dispensed with.

32. Looking to the authorities on the subject and stress more on observance of inquiry
under Section 5-A instead of adopting exception of dispensation of such inquiry, we find it difficult
to justify such exercise on the part of respondents.

33. If a few weeks or one or two months would have been taken in making inquiry under
Section 5-A of Act, 1894, we do not find that any prejudice it would have caused to respondents.
When respondents could have availed luxury in completing process of request and initial
notification by taking 11 months, we find it difficult to hold that there was such an urgency so as to
invoke exceptional power under Section 17(4) and dispense with inquiry under Section 5-A.

34. Time and again, it has been held that inquiry under Section 5-A should not be
dispensed with lightly. We may buttress our judgment, as to when dispensation of inquiry under
Section 5-A would be justified by discussing relevant provisions as well as binding judicial
precedents thereon.

35. Section 5-A was inserted in Act, 1894 as long back as in 1923, by Act No. 38 of 1923.
There are minor amendments made subsequently but substance of provision has remained the
same.

36. Normal procedure of acquisition is that a proposal of acquisition is published in
notification under Section 4(1) of Act, 1894. Land owners whose land is proposed to be acquired,
are given an opportunity to make their objections. Collector is under an obligation to consider
objections and also offer an opportunity of hearing to objectors and thereafter submit report to
Government containing his recommendations on the objections, for decision of Government. After
considering the report and other material, Government makes declaration that land is proposed to
be acquired for public purpose and this is done by publication of notification under Section 6.
5 All. Madan Lal Ahuja Vs State Of U.P. & Ors.

1655
Therefore, there is possibility of some difference in details of land stated in the notification issued
under Section 4 and finally declared land, as acquired for public purpose, detailed in notification
under Section 6.

37. Collector is then authorised to take order for acquisition and under Section 8 is
supposed to mark, measure and plan the acquired land. A notice thereafter is issued under Section 9
to Land Owners by Collector notifying his intention of taking possession of land and that the claim
for compensation be submitted to him. Under Section 11, Collector makes enquiry for determining
amount of compensation payable to land owners, whose land has been acquired, and make award.
After payment of compensation, Collector takes possession of land.

38. There is an exception to normal procedure of taking possession which is contained in
Section 17 of Act 1894. It says that in case of urgency, even though no award has been made,
Government can direct Collector to take possession of any land, needed for public purpose, and on
such possession being taken by Collector, land shall vest absolutely with the Government free from
all encumbrances. Section 17(4) provides, where such urgency for the purpose of possession is to
be acted upon, Government, shall declare that provision of Section 5-A shall not apply.

39. However, right to file objection under Section 5-A against proposal of acquisition of
land published under Section 4 is a substantial right, consistent with principle of natural justice,
since forcibly acquisition of land, without consent of land owners, is a serious matter. This is the
view taken consistently, by Courts.

40. The circumstances, when Government would be justified to dispense with enquiry
under Section 5-A while invoking urgency clause under Section 17, for the purpose of taking
possession, have been considered in a catena of decisions in last several decades and it would be
useful to refer some relevant authorities in this regard.

41. In Nandeshwar Prasad vs. U.P. Government AIR 1964 SC 1217, Court said :

"the right to file objection under Section 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".

42. In Munshi Singh and others vs. Union of India (1973) 2 SCC 337, which is a
decision of three judges bench, Court stressed upon and emphasized upon an inbuilt legislative
recognition of principal of natural justice in Section 5-A and said :

"Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an
objector an opportunity of being heard. After hearing all objections and making further inquiry he
is to make a report to the appropriate Government containing his recommendation on the
objections. ........ The legislature has, therefore, made complete provisions for the persons
interested to file objections against the proposed acquisition and for the disposal of their
1656 INDIAN LAW REPORTS ALLAHABAD SERIES
objections. It is only in cases of urgency that special powers have been conferred on the
appropriate Government to dispense with the provisions of Section 5-A".

(emphasis added)

43. In State of Punjab vs. Gurnail Singh and others 1980 (1) SCC 471, it was held that
it is fundamental that compulsory taking of a man's property is a serious matter and smaller the
man, more serious the matter. Hearing him before depriving him is both reasonable and preemptive
of arbitrariness. Denial of this administrative fairness is constitutional anathema except for good
reasons. Save in real urgency where public interest does not brook even the minimum time needed
to give a hearing, land acquisition authorities should not, having regard to Articles 14, burke an
enquiry under Section 17 of Act, 1894. A slumbering process, pending for years and suddenly
exciting itself into immediate forcible taking, makes travesty of emergency power.

44. In Shyam Nandan Prasad and others vs. State of Bihar and others (1993) 4 SCC
255 reiterating that section 5-A is mandatory, Court said :

"the proceeding before the Collector is a blend of public and individual enquiry".

45. In Union of India and others vs. Mukesh Hans (2004) 8 SCC 14, Court held that
Section 17(4) is an exception to normal mode of acquisition.