# ~ Naniuhwar Prasai v. Sta11 oj U. P

- **Citation:** [1964] 3 S.C.R. 425
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Civil Appeals Nos. 166 and 167 of 1962
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/naniuhwar-prasai-v-sta11-oj-u-p-2905
- **Pages:** 17

## Headnote

Land Acqui•ition-Notification by Go11ernor-Land require& for comtruction of indu•trial tenemtni.-&cond notification
-Collector direclfll to take po.,ea1ion-Oollector' • notification
•lating po,.eMion would be taken over-Acquiaition for Kanpur
Development Board-Action if mwt be taken under 1. 114 of the
Kanpur Act-Not;fication under •· 6 could be i,.ued without jirll
wking action under •· 5A-Land acquisitiM Act, 1894( 1 of
189,), "· ,,5,5A, 6,9, 17(1), 17(4), Kanpur Urban Ar•a Dewelopment Act, 1945(Act VI of 1945), aa. 71,114.
In these two appeals the same questions of law arise and
the facts in C.A. No. 166 of 1962 arc similar to those in C.A.
167 of 1962 which arc 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 godowns 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 This Trust has been replaced
by the.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 Arca Development Act, 1945.
Jiii -
s .. 1. Sil• v,,;
••
Dhir,.dr• N•th s,.
AJJMll"' J.
/96J
1969
. ~
Naniuhwar Prasai
v
Sta11 oj U. P.
426
SUPREME COURT REPORTS (11164) VOL.
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
tlispute is situated. In 1956 a notification was is•ued under
1. 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 under 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 '· 11 had
been given, might on the expiration of the notice mentioned
•· 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 contcnd•d 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 dlsmwed the writ
petidon. The present appeal was filed with a certificate i11ued
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 thats. 114 comes into play
and the proceedings for acquisition have to ta\<e place under
the Land Acquisition Act as modified by s. 114 read with the
schedule. But where the acquisition is, as in the present caac,
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 Acquialtion Act alone.
From the scheme of the Act it is clear that comcnce
with the provision• of 1,5-A ia nccOlsary before a not · dOll
I
a s.c.R
SUPREME COURT REPORTS
can be issued under s. 6. · Even where the Government make1
a direction under s. 17(1) it is not necessary that it

## Text

3 S.C.R.
SUPREME COURT REPORTS
425
the adjudication being professedly complete and d~
praemi8sis, that the claim in that respect was not
upheld. 'I his would not render the a ward incomplete. We consider therefore that none of the three
points urged in challenge of the validity of the award
on the ground of its incompleteness has any substance.
The appeal fails and is dismissed with costs.
---
NANDESHWAR PRASAD AND ANOTHER
ti,
THE STATE OF U. P. AND OTHERS
(P. B. GAJENDRAGADKAR, K. N. WANCHOO,
and K. C. DAS GUPTA JJ.)
Land Acqui•ition-Notification by Go11ernor-Land require& for comtruction of indu•trial tenemtni.-&cond notification
-Collector direclfll to take po.,ea1ion-Oollector' • notification
•lating po,.eMion would be taken over-Acquiaition for Kanpur
Development Board-Action if mwt be taken under 1. 114 of the
Kanpur Act-Not;fication under •· 6 could be i,.ued without jirll
wking action under •· 5A-Land acquisitiM Act, 1894( 1 of
189,), "· ,,5,5A, 6,9, 17(1), 17(4), Kanpur Urban Ar•a Dewelopment Act, 1945(Act VI of 1945), aa. 71,114.
In these two appeals the same questions of law arise and
the facts in C.A. No. 166 of 1962 arc similar to those in C.A.
167 of 1962 which arc 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 godowns 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 Arca Development Act, 1945.
Jiii -
s .. 1. Sil• v,,;
••
Dhir,.dr• N•th s,.
AJJMll"' J.
/96J
1969
. ~
Naniuhwar Prasai
v
Sta11 oj U. P.
426
SUPREME COURT REPORTS (11164) VOL.
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
tlispute is situated. In 1956 a notification was is•ued under
1. 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 under 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 '· 11 had
been given, might on the expiration of the notice mentioned
•· 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 contcnd•d 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 dlsmwed the writ
petidon. The present appeal was filed with a certificate i11ued
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 thats. 114 comes into play
and the proceedings for acquisition have to ta\<e place under
the Land Acquisition Act as modified by s. 114 read with the
schedule. But where the acquisition is, as in the present caac,
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 Acquialtion Act alone.
From the scheme of the Act it is clear that comcnce
with the provision• of 1,5-A ia nccOlsary before a not · dOll
I
a s.c.R
SUPREME COURT REPORTS
can be issued under s. 6. · Even where the Government make1
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 ( l) the procedure under s. 5-A would
stil .-have to be followed before a notification under s. 6 is issu·
ed.
It is only when the Government also makes a declaration
under s. 17(4) that it becomes necessary to raKe action under
•· 5·A and make a report therew1der.
Under the Land Acquisition Act an order under s. 17(1) ors. 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 1land.
Just as s. 17(1) and s. 17(4) are independent of each
other, •.17(1-A) ands. 17(4) are indepcndentofrachother
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 objeclions 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 I 7(l·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 undrr 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.
CIVIL 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).
.
0. B. Agarwala and P.O. Agarwala, for the
appellants (in C.A. No. 167 of 62).
1959
Nandeshw11.r Frud
'·
Sta'' of U. P.
1963
Ntmi11hw11r Pr111ad
v.
S1ot1 of U. P.
Wanchoo /.
428 SUPREME COURT REPORTS[l964]VOL.
K. 8. Hajela and 0. P. Lal, for respondent
No. 1 (in both the appeals).
O. P. Lal, for respondent No. 2 (in both the
appeals).
·
1963. April 26. The Judgment of the Court
was delivered by
.
WANCHOO ].-These two appeal11 on certificates granted by . the Allahabad High Court rai1e
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. Be1ides the
mill there are pacca godowns also on the plou and
two-thirds of the area is under builclings while onethird is open land· paved with bricks.
No part of
the land is waste or arable.
It appean that in February 1!132 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 ha1 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 cleu what
I
3 S.C.R.
SUPREME COURT REPORTS
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 ind us trial housing scheme was sponsored by
Housing Department of the U.P. Government. This
s.cheme 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.
VIie
are concerned with this part of the scheme, for the
lands in disput~ are in this locality. · The decision in
this \:onnection was taken by the Government of
U. P. in May !955. Thereafter on January 6, 1956,
a notification · was issued under s. 4 of the Land
Acquisition Act, (No. 1 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 nf the subsidized industrial housing
scheme sponsored by the Government of U. P. as
weJI 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 heing one o( urgency the Governor
was pleased under sub-ss. (1) and (1-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, whkh 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,
1963
Nantl1shwar PrasoJ
v.
Sttztt of CJ. P.
Wanchoo J
J96J
Jl•ndesliwar Prasad
••
St•t1 qf U. P.
Wanchoo J.
430 SUPREME COURT REPORTS [1964) VOL.
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 withs. 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 mat.ter 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
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
3 S.C.R. SUPREME COURT REPORTS
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. 11 i of the Kanpur
Act, which is in these terms :-
"Modification of the Land AcquiBition Act,
1894-For the purpose of the acquisition of
land for the Board undrr the land Acquisition
Act, 1894-
(a) the said Act shall be subject to the modification specified in the 15cbedule to tbiS Act;
(b) the award of the Tribunal shall be deemed
to be the award of the court under the Land
Acquisition A.ct, 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
Buard under the Land Acquisition Act, 1894.
Further, it is necessary to refer to s. 71 (I) 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 aay 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 in•o.
far as scheme No. XX is concerned), s. ll4 come~
Nond1~hWO' Pra.u1d
v.
St•tlDf U. P.
l-Va11t.ioo J.
1969
Nand1shwo' Pr1114tl
••
St•t,.f U. P.
W"Nc/11;0 J.
432
SUPREl.\lE COURT REPORTS[l964] VOL.
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 i1 laid on the words "acquisition
of land for the Board" in s. 114, and it is said that
whenever there is acquisition or 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. Vll 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 Li:ind Acquisition Act as modified by the
provisions of the Kanpur Act. It is only when the
Board proceeds to ac;quire 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 thats. ll4 speaks of
acquisition of land for the Board, and the argument
is that when s. ll4 speaks of acquisition of land /or
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
opm10n
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
3 S.C.R.
SUPREME COURT REPORTS
433
purposes of the Act i.e. for the Board. Therefore
whens. 71 authorises the Board to acquire land under
the Land Acquisition Act as modified by the Kanpur
Act, the acqui~ition 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 under 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. VII. It is obvious that ch. VII, s. 71, s.114
and the other provisions in ch. XI dealing with modifications and Jhe modifications in the schedule 'are
all part of one scheme, where the Board is acquiring
I96S
Nandeshwor Pr,:uad
••
:tateeJU. P.
i963
Jfatl11'11uu1r Pr4sad
v.
Stal• ef U. P.
Wo11eboo I.
434 SUPREME COURT REPORTS [1964] VOL.
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 alo~e .. 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 nocification under s.4.
By that notifica.
tion 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 of the proceedings held by him and the report
3 S.C.R.
SUPRENIE COURT REPORTS
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 persona
interested. The Collector then holds inquiry under
s. 11 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 provisiom 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
w~ have said,. is the uSllal pr0cedure to be followeq
}/eru/11Awu Pra#.
••
St•t10fU. P.
W.,schi;1 J.
436
SUPREME COURT REPORTS [1964] VOL,
1.96J
N""4,,hw• Pr.U«d
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 proce·
<lure in s. 5·A and a notification under s.C 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:-
...
Stat,.j U. P.
w .. cAo•J.
"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 Gover11ment, the
provisions of sub-sectio11 (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 m?,de under section 6 in respect of the .land at any time after the publication of the notification under section 4, subsection (l)."
It will be seen thats. 17 .(I) 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 er.cum brances. If action is taken
under s. 17 (I), taking ·possession and vesting which
-
3 S.C.R.
SUPREME GOUR T REPORTS 437
arr provided ins. 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 proce·
dure 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 unnecessarv to take action under s. 5-A
and make a report 'thereunder. 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) ors. 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 (l-A) introduced ins. 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 1 7 of the
Principal Act (i. e. Land Acquisition Act) the
1§63
J( ad1slls•r Pr11111'
.:
StatlOf <]. P.
Wanchoo /.
11-.. • ., p,.,.,
...
St.,, tf U. P.
w ........ J.
438
SUPREME COURT REPORTS [1964] vot ..
following shall be inserted as a new sub·sectio11
(l·A) :
'(l·A). The
power
to take posscssio11
under sub-section ( l) may also be exercised
in the case of other than waste or arable:
land, where the land is acquired for or iu
connection with sanitary improvements o![
any kind or planned development."
It. is not in dispute before us that the land in tJi,~
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 posse!!·
sion of land other than waste or arable land where
the land is acquired for or in connection with sanit·
tary improvements of any kind or planned develop·
ment. It is further urged that sub-s. (I) 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 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) attd
therefore when sub-s. 14) speaks of any land to whic:h
sub-s. ( 1) applies it still refers only to waste or arable
land and no other. It is true that by sub-s. (1-A) as
introduced by U. P.
Act ins. 17, power has been
~iven to take possession in case of land other than the
waste or arable; but this does not necessarily mean
that su b-s. ( 4) will also apply to a case of land other
than waste or arable simply because power has been
3 s.c.R..
SUPREME COURT REPORTS
439
given by sub-s. (1-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. (l-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 (1-A) as
introduced by the U. P. Act therefore has the effect
9nly 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. (1-A)
does not amend sub-s. ( 1) so as to include within
that sub-section 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, it can apply only to waste or arable land
mentioned in sub-s. (1), which also remained unamended.
We have already pointed out that it is
not necessary in law that when an order is passed
under s. 17 (1), aa 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 (1-A) must be independent of s. 17 (4) and an
order under s. 17 (1-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. (1-A), it has
failed to carry out that intention. Sub-section (1-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
Jiff
N•nils/11,,., l'ru•i
v •.
~tu1 ef 61. P.
1963
-.--
Nandeshwar Prasa'
.v.
Stat• of U. P.
l1lancho11 I. ·
440
SUPREME COURT REPORTS [1964] VOL.
for applying sub-s. (4) .to a case falling under
sub-s. (l·A) and so subs. (4) cannot be applied to
sub-s. (l'-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 aecept that that right can be taken away as
if by a side-wind because sub-s.
(I-A) mentions
sub-s. (1).
As we have already pointed out sub-s. (1)
has been mentioned in subs. (1-A) merely to indicate the circumstances and the conditions under
which possession can be taken.
The legislature
has mentioned sub-s. (l /in sub-s. ( l-A) as a measure
of economy; otherwise sub·s. (1-A) would have read
as follows :-
"In cases of urgency, whenever the appropriate
. Govemme~t 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 no economy of words and
sub-s. (1-A) had read as we have indicated above, it
could not 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. (1-A), it cannot be said that it was either
amending imb-s. (1) or sub-s. (4). In the absence oi
such amendment either in sub-s.' ( 1) or sub-s. ( 4) and
in the absence of any specific provision being intro- ·
duced in s. 17 by which sub-s. ( 4) was also to apply
to the new sup-s. ( 1-A), 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),
3 S.C.R.
SUPREME COURT REPORTS
441
simply by the introduction of sub-s. (1-A) in the form
in which it was introduced ins. 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 inust 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 sub·s. (4) of s. 17, the provisions of s. 5-A 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.
A ppeala allowed.
1963
Narukshwar Pr1-•o
••
Sl4t1 of U. P.
Wanchoo I