Omprakash Trivedi, J. - (1.) This petition under Article 226 of the Constitution of India has been filed by Beni Singh and Bhoj Singh, resident of village Parsola, Tehsil Bilgram in the District.of Hardoi. The petitioner's contention is as follows : There is an old drain in existence from times immemorial known as Hathaura drain starts from village Gaura and passes by a number of villages mentioned in para 2 of the petition. Flood and other water from these villages is drained away through this drain. The water of this drain falls into Akharya Nala which in its turn discharges water into the Kalyani river through Nawab Ghaziuddin Haider Canal and finally falls into the Ganges. Suddenly in January, 1971 employees of the Irrigation Department of the state of Uttar Pradesh started digging a new drain through agricultural fields of various villages including the grove of petitioner No. 1 measuring about 50 big has and threatened to carry on the digging through the grove of petitioner No. 2 well without taking any legal proceedings either for requisition or for acquisition of the land on which digging operations were going on. The petitioners maintain that these digging operations were illegal and unauthorised and allege that on 17-1-1971 ten persons belonging to different village complained about this unauthorised digging to then Minister, Irrigation Department Sri Girdhari Lal (Annexure 3 to the petitioner) who temporarily stopped the digging in January, 1971 but the digging operations were soon after restarted and while they were proceeding a notice was issued by the Tahsildar, Bilgram on 31st March, 1971 under Section 3 oft he U.P. Rural Development (Requisitioning of Land) Act, 1948 hereinafter referred to as the Act) requisitioning specific areas of land in village Katri, Zafarpur and Baghyari and on 26-4-71 another notice was issued by the Tahsildar Bilgram under Section 3 of the Act requisitioning specified areas of villages Faizpur Kampu, Aggasa and Shekwapur (Annexure A - 2 to the counter-Affidavit). The Petitioners filed an objection against the requisitioning of their land beofe the Tashildar, Bilgram but the same was rejected by the Tahsildar by order dated 27-5-1971 (Annexure 7). The petitioners then appealed to the Commissioner, Lucknow Division (Opposite Party No. 1) and he also rejected the objection against the requisition by his order dated 17-11-1971 (Annexure 9 to the Writ Petition). The petitioners assail the good faith of the requisition proceedings and impute malafides to the notice of requisition. They challenge the legality of the notice issued under Section 3 of the Act on the ground that digging of Land was started before the issue of norite and, therefore, it is contended that the proceedings were void abolition, and the order of the Tahsildar rejecting the petitioner's objection is challenged on the ground that the Tahsildar did not apply his mind independently to the question who her the land in question was required for any public purpose and allowed himself to be influenced by a letter of the Executive Engineer. The order of the Commissioner rejecting the petitioner's objection is also called into question to set aside the requisition proceedings. There is also a plea that the provisions of Section 3 of the Act are ultra vires as they confer arbitrary powers on the requisitioning authorities without laying down any guidelines and are in violation of Article 14 of the Constitution of India. On these facts and allegations the petitioner's pray for the issue of certiorari quashing the notice (Annexure 5) and the orders of the Tahsildar and the Commissioner (Annexures 7 and 9 to the writ Petition). There is also a prayer for mandamus restraining the opposite parties from enforcing the so called claim on the basis of the notice (Annexure 5).
(2.) A counter-affidavit has been filed on behalf of opposite parties 1 to 4 in which the opposite parries admit that Hathaura drain is 20 miles and 1 furlong long and runs in Tahsil Bilgram, the water of which is discharged into Akharya Nala, Kalyani River and finally into the Ganges. The opposite parties contend that on 19-11-1970 a letter was received by all the District Magistrates in Uttar Pradesh from the Deputy Secretary to Government saying that a sum of Rs. 150 lacs had been granted by the Central Government for utilisation over schemes for the prevention of floods in rural areas of this state subject to the condition that the money is utilised by the end of June, 1971. By this letter instructions were issued that this money should be utilised for the construction of new drains and for remodelling of existing drains; the land should be taken possession of by the end of December, 1970; the digging opera ions must start in January, 1971 and completed in the month of June, 1971 and proceedings for requisition of the land required for the purpose must be taken in hand simultaneously. In accordance with this Government direction with a view to protect land in the rural areas from Ravages of floods the Flood Control Board framed a scheme for the remodelling and extension of Hathaura drain. By D.O. dated 2nd December, 1970 the Executive Engineer, Canals approached the District Magistrate, Hardoi for requisition of land for construction and remodelling of Hathaura drain. The District Magistrate required the Tahsildajy Bilgram who was the requisitioning authority under the Act, to proceed with the requisitioning of the land and it is contended that notices were issued by the Tahsildar Bilgram on 31st March 1971 and on 26-4-71 (Annexures A - 1 and A-2) of the counter affidavit under Section 3 of the Act.
(3.) I have heard Sri Umesh Chandra Srivastava appearing for the petitioner and Sri Umesh Chandra, Standing counsel. The first point raised by learned counsel for the petitioner is that the notice issued by the Tahsildar, Bilgram on 31st March, 1971 (Annexure 5 of the petition and Annexure A - 1 of the counter-affidavit) and the notice dated 26th April, 1971 (Annexure A - 2 of the counter-Affidavit) were illegal. This submission appears to be well founded. Admittedly, the land of the villages notified in these notices (Annexures 5 and A - 2) was requisitioned for the purpose of remodelling and reconstruction of Hathaura drain. In other words, the public purpose for which the land was requisitioned was the remodelling and extension of Hathura drain. It is well established that the land which was requisitioned by the earliest notice dated 31st March, 1971 had already been wrongfully taken possession of by the staff and agents of opposite parties 1 to 4 and digging operations had also started long before issue of notices of requisition. This is proved from the contents of Annexure 4. It contains a note which shows that on 2-1-71 on the complaint of Beni Singh petitioner and some other digging operations of the drain were stopped and on 3-1-1971 the supervisor Kanungo reported that the operations of digging of the drain had already started. It is admitted in the counter affidavit that the proposal for construction of Hathaura drain under the above scheme was approved in December, 1970 and this scheme after approval by the Flood Control Board was communicated to the District Magistrate on 19-11-1970. It is clear from the above contents of Annexure 4 that the authorities concerned started taking possession of the land where Hathaura drain was intended to be extended in the month of January, 1971 in accordance with the instructions of the letter of the Deputy Secretary to Government dated 19-11-1970 (Annexure A - 3). In order that the operations may be corseted by the end of June, 1971 and the Central Government grant utilised the occupiers and other persons having interest in the land, which was thus taken possession, of were wrongfully and illegally dispossessed by the staff of the state as by the time digging operations were started in January, 1971 no proceedings for requisition of the land were started under the Act. The proceedings were for the first time started when a notice was issued under Section 3 of the Act on 31-3 1971 (Annexure 5 of the Writ Petition and Annexure A-1 of the counter affidavit). Consequently, digging operations of land belonging to the petitioners and others before proceedings under the U.P. Rural Development (Requisitioning of Land) Act or under the Land Acquisition Act were wholly illegal and unauthorised and amounted to rank trespass on private property. The Act authorises the requisitioning authority to requisition, any land for a public purpose and Section 4 of the Act provides that any land which has been requisitioned under Section 3 may be used in such manner as may appear to the prescribed authority to be expedient for any public purpose. It is clear, therefore, that there could be no requisitioning of land when the land had already been illegally taken possession of and was being illegally used. In such a case there would be no public purpose left for which a notice under Section 3 could be issued. The standing counsel Sri Umesh Chandra put forward the amazing argument that even if the petitioner's land had been wrongfully taken possession of and digging operations started there was nothing to prevent action being taken under Section 3 of the Act subsequently and the trespass or wrongful act will not effect legal validity of the notice of 31-3-1971. This argument cannot stand a moment's scrutiny. Action for requisition under Section 3 of the Act can be taken only for a public purpose. In a situation of the present kind when land of a citizen had been wrongfully taken possession of by the State or by rank trespass a citizen has been dispossessed by the State the only purpose motivating the issue of a notice under Section 3 will be to give a legal cover to an unlawful act. When land of the petitioners had already been grabbed by the agents of the State and digging operations started there was no public purpose left. For in the present case according to the counter affidavit the only professed public purpose was the taking possession of land for extension of Hathaura drain and digging operations in that connection. That purpose did not remain to be fulfilled when the same had already been achieved by wrongful and illegal dispossession of petitioners and others. Indeed Section 3 were invoked for the purpose of giving cover to an unlawful act of the state than it would be a case of colourable exercise of jurisdiction vested by Section 3 of the Act and the notice of 31st March, 1971 would be vitiated by lack of good faith. Quite apart from this aspect of the matter that the notification issued after the petitioner's dispossession and after digging operations had started would be invalid in law, there is this aspect of the matter that a notification under Section 3 could not be issued for the extension of Hathaura drain for that could not be covered by the Public 'purpose' given in Section 2 of Act Public purpose under Section 2 is defined as making, enlarging or deepening of tanks for purposes of irrigation; composting of village refuse or preparation of any other form of manure; construction of guls for irrigation; plant nurseries and any other object which the state Government may after publication in the Gazette and after considering any objection or suggestion which may be received by notification in the Gazette declare essential for the development of agriculture or improvement of the life of community in rural areas. It is an admitted fact that there has been no notification in the Gazette declaring any other object as essential for the development of agriculture or improvement of the life of community in rural areas as inculcated by clause (v) of Section 2 (2) of the Act and extension of Hathaura drain in plainly not covered by any of the other clauses from (i) to (v) of Section 2 (2) as it is not a case of construction of guls for irrigation, nor a case of enlargement or depending of tank for irrigation. The other clauses do not apply. A Gul is a small channel for purposes of irrigation. But the Hathaura drain, as appears from the counter-affidavit itself, is a very long drain. In the tehsil of Bilgram itself is 20 miles and 1 furlong in length. The extension of such a drain cannot, therefore, be tlgarded as construction of Gul for irrigation. It is clear that the purpose for which the land was required was not covered by the definition of "public purpose" given in Section 2 of the Act and this is a ground on which no notice could be issued under Section 3. Thirdly, as appears from the scheme of the U. P. Rural Development (Requisitioning of Land) Act, 1948 land under its provision is taken only for temporary use and is intended to be ultimately released from requisition to the owner or occupier under Section 10 of the Act. The Food Protection Sheme under which Hathaura drain was to be extended, in the very nature of things, must be presumed to be work of a permanent character and the land was not evidently required for temporary use. The fact that the land had to be dug up supports this inference. This was not, therefore, a case where the land could be requisitioned. It was a case where it would have been acquired under the Land Acquisition Act. From this point of view also the notice under Section 3 was illegal. I hold upon all these considers ions that the notice dated 31st March, 1971 (Annexure 5) was illegal and]void and should be quashed. Learned counsel for the petitioner, however, did not press for an order for quashing Annexures 7 and 9 and he did not also press the other grounds taken in the petition including the ground that Section 3 of the Act,was ultra vires. I do not, therefore, propose to go into those grounds.;