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TMI Blog1964 (1) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... itted to make shops of a particular design on the land leased out to them. They surrounded the land leased to them with wooden boundaries and Put up constructions of pucca bricks for use as shops and offices. 2. On the 5th of March, 1962, the State Government issued a notification under Section 4 of the Land Acquisition Act stating that the land was needed for a public purpose, i.e. for the protection of Lucknow Town from floods in Gomti river in the Lucknow District, and the Governor, being of opinion that the provisions of Sub-section (1) of Section 17 ..,...., are applicable to the land, is further pleased under Sub-section (4) of the said section to direct that the provisions of Section 5-A of the Act shall not apply. Prior to the issue of this notification no direction mentioned in Section 17 (1J or 17 (1-A) of the Act had been issued by the Governor requiring the Collector of Lucknow to take possession of the land in dispute on the expiration of fifteen days from the publication of a notice under Section 9 (1). The notification was published on the 17th Of March, 1962. On the 30th March, 1962, the State Government issued-ed a declaration under Section 6 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2). The result is that notwithstanding the conferment upon a Collector of the-power to take possession of land before an award is made, on the Government's direction, if it is acquired for sanitary improvements or planned development, the power of the State Government to direct that the provisions of Section 5-A shall not apply under Section 17 (4) remains what it was, i.e. it is to be exercised only 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. In Srimahant Visheshwar Shivacharya Mahaswami v. State of U. P., AIR 1957 All 127 and Lachhmi Narain v. State of U. P., AIR 1957 All 816, Mehrotra, J. held that the direction mentioned in Section 17 (4) can be issued by the State Government in respect of the land governed by Sub-section (1-A) also. A contrary view was taken by Mathur, J. in Gur Dayal v. State of U. P., AIR 1960 All 564. The view taken by Mehrotra, J. was confirmed by A.P. Srivastava and Mithan Lal, JJ. in Sarju Prasad Sahu v. State of U. P., 1962 All LJ 96 : AIR 1962 All 221). They overruled the decision in the case of AIR 1960 All 564 (Supra). They held that beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t bound to do so and it could enact separate provisions, one in respect of each power. The result is that the power in respect of waste or arable land is to be exercised under Sub-section (1) and that in respect of land acquired for the particular purpose, under Sub-section (1-A). The land to which the provisions of Sub-section (1) can be said to be applicable is clearly waste or arable land because they are not applicable to any other kind of land, whatever be the purpose for its acquisition. What is material for the applicability of Sub-section (4) is the nature of the land and not the nature of the power to be exercised. The sub-section does not refer to the nature of the power at all and does not lay down that it is applicable whenever the power mentioned in Sub-section (1) can be exercised. The nature of the land may be different even though the same power may be exercised; a land that is not waste or arable does not become waste or arable land merely because it is to be acquired for a particular purpose and in respect of it the power mentioned in Sub-section (1) can be exercised. If it is a building site or cultivated land, it remains a building site or cultivated land. Sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instead of the words in the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) ..... . . are applicable. The provisions of Sub-section (2) apply to every kind of land, but in certain circumstances, such as the railway administration's needing immediate possession of the land for maintenance of traffic in an unforeseeable urgency ant) it is clear that the direction referred to in Sub-section (4) can be given when the circumstances mentioned in Sub-section (2) exist. Similarly, it can be given only when the circumstances mentioned in Sub-section (1) exist and they include the wastes or arable nature of the land and the giving of a direction by the Government in a case of urgency to the Collector to take possession even before an award has been made. Neither the waste or arable nature of the land nor the existence of an urgency will justify a Collector's taking possession of the land before an award has been made; there must also be a direction by the Government to do so. It is only after the direction has been Riven that it can be said that the power mentioned in Sub-section (1) can be exercised in regard to the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Sub-section (1) apply. 6. The declaration made under Section 6 was Illegal. As it was illegal the stage of issuing a notice under Section 9 did not arise and if that stage did not arise the Collector could not take possession of the land under Section 17 (1) or(1-A). 7. Sub-section (1-A) applies only when the land is acquired for sanitary improvements or for planned development Sri Uma Shankar Srivastava contended that the land in dispute was acquired for planned development but this is not the object mentioned in the notification under Section 4 or the declaration under Section 6. In both the documents the purpose is stated to be protection against floods in the river Gomti. No facts have been given in the counter-affidavit and in the absence of any facts we cannot say that protecting Lucknow town against floods in the river Gomti in every case amounts to planned development. Protecting Lucknow town from floods in the river Gomti may or may not be a part of the planned development and it has not been alleged that it is a part of planned development. We, therefore, find that subsection (1-A) is not applicable at all. As the land is now considered to be not waste or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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