O.P. Trivedi, J. - (1.) These are two connected special appeals involving common questions and, therefore, can be conveniently disposed of by one common judgment. Special Appeal No. 59 of 1969 arises from the judgment of learned Single Judge of his Court dated 21-11-1968 passed in writ Petition No. 471 of 1968 and Special Appeal No. 195 of 1969 arises from the judgment of the same learned Single Judge dated 19-5-1969 in Writ Petition No. 457 of 1967. Writ Petition No. 471 of 1968 was filed by respondent Vinkateshwar Singh and he other writ petition, by M. D. Majumdar respondent. The writ petitions arose out of land acquisition matter. A notification under Section 4 (1) of the Land Acquisition Act (hereinafter called the Act) was issued on 26-10-1966 and was published in the Uttar Pradesh Gazete dated 5-11-1966. It was mentioned in the same notification that the Governor being of the opinion that the case is one of urgency and as such the provisions of sub-Sec (1) of Section 17 of the Act are applicable to the land, was pleased under sub-sec. (4) of the said section to direct that the provisions of Section 5-A of the Act shall not apply. Thereafter on 26-11-1966 another notification under Section 6 of the Act was published. By these two notifications the land of he respondents was acquired. Objections were filed under Section 9 of the Act. Possession of the land, which is the subject matter of dispute in Special Appeal No. 59 of 1969, was admittedly taken by the Collector on 30-4-1968 and in the other special appeal in which M. D. Majumdar is respondent no steps for taking of possession were taken by the Collector before 6-7-1967 as is apparent from Annexure 1 filed with the counter-affidavit to the Miscellaneous Application No. 366 (W) of 1967.
(2.) In the writ petitions Vin Kateshwar Singh and M. D. Majumdar had challenged the validity of the notifications issued under Secs. 4, 6 and 17 (4) of the Act on a number of grounds including that these notifications had been issued in colourable exercise of power vested in the State Government,and amounted to fraud on power. The learned Single Judge accepted the contention that there was no urgency for taking possession of he land subject-matter of dispute in the two writ petition or for the issuance of a notification under Section 17 (4) of the Act dispensing with the procedure laid down in Section 5-A of the Act and, therefore, held that the notification under Section 17 (4) published in the U. P. Gazete along with the notification under Section 4 had been issued in colourable exercise of power and on that ground the notification under Section 17 (4) of the Ac was found to be invalid in law. Having found that notification to be invalid the learned Judge was of the opinion the the notification under Section 6 could not stand and, therefore, declared both the notifications under Secs. 6 and 17 (4) of the Act to be void. It is from this order that the present appeals arise. It was urged before us by the learned Chief Standing Counsel that the learned, Single Judge was not right in declaring the notification under Section 6 of the Act to be void because once the notification under Section 6 is issued it is conclusive proof in law of he public , purpose for which the land is sought to be acquired. Learned counsel relies for this preposition of law on a Supreme Court decision in Smt. Somawanti v. State of Punjab, A.I.R. 1963 Supreme Court 151 . The proposition that the notification issued under Section 6 is conclusive proof of the existence of public purpose is not in doubt but to our mind this argument is not available to the appellants because he notification under Section 6 was not struck down by the learned Single Judge on the ground of want of public purpose but on it different ground to which we will presently adver. Indeed the learned Single judge never entered into the question of the existence or otherwise of public purpose. I may be mentioned here that under the notification issued under Section 6 with regard to public purpose it was declared that the land was required for rehabilitation of new migrant families from East Pakistan in the district of Kheri. Nobody disputed before the learned Single Judge that this land was not required for rehabilitation of migrants from East Pakistan and as we have already said, the learned Single Judge did not enter into that question at all. The learned Single Judge appears to have struck down the notification under Section 6 because he found that the notification under Section 17 (4) of the Act was void having been issued in colourable exercise of power and the question whether there was conclusive proof of the existence of public purpose did no enter into the consideration at all. This argument therefore, has no force.
(3.) The next argument of learned counsel was that the notification under Section 17 (4) of the Act was issued in good fail and did not indicate colourable exercise of power. We are unable to agree with this submission and find ourselves in complete concurrence with the view taken by the learned Single Judge. If there was any urgency for taking possession of this land for rehabilitation of refuge as a purpose professed in the notification of 26-10-1966 than one would have expected the authorities to take the earliest steps for caking possession of this land to effectuate this purpose but what we find is that in the case of Special Appeal No. 59 of 1969 possession was taken by the Collector as late as on 30-4-1968 when the notification under Section 6 had been issued in November; 1966 and in the other special appeal no steps were taken for taking possession before 8th July, 1967. The facts brought out in the counter affidavit disclose that Vinkateshwar Singh had moved an application before the State Government for time to pay off certain Government dues which were outstanding against him. On that application, which was moved subsequent to the issuance of the notification under Sec. 6, the State Government stayed land acquisition proceedings for a period of two months. As observed by the learned Single Judge, there. was absolutely no connection between Government dues which were outstanding against Vinkateshwar Singh and these land acquisition proceedings and, therefore, there was no hindrance to the taking of necessary proceedings under the Act by the pendency of certain Government dues. The circumstance that the State Government was able to stay proceedings under the land Acquisition Act with such alacrity; that actually possession was not taken in one case ill 30th April, 1968 and no steps taken in the other case till 6th July, 1967 drives one legitimately to the conclusion that ;here was no urgency for taking possession of the land. We agree with the learned Single Judge, therefore, that the procedure prescribed by Section 5-A of the Act was dispensed with in colourable exercise of power vested by Section 17 (4) of the Act. We find no force in submission of learned Chief Standing Counsel to the contrary and agreeing with the appreciation of evidence and facts by the learned Single Judge hold, agreeing with him, that the notification under Section 17 (4) of the Act was issued in colourable exercise of power. That being so, that notification was rightly held to be void. As that notification was void it was in the eyes, of law non-existent. Consequently, the procedure provided by Section 5-A of the Act ought to have been followed and opportunity to the respondents given for filing objection and notification under Section 6 should have been issued only on receipt of report of the Collector under Section 5-A. It is well-settled by authorities that if a notification is issued under Section 6 of the Act without taking into account the report of the Collector made under Section 5-A then such a notification would be invalid, in law (see Adveppa Irappa Morabad v. State of Mysore, A.I.R. 1968 Myscore 205 and Mowasi v. Sate of Uttar Pradesh, A.I.R. 1953 Allahabad 595 . The notification under Section 6, therefore, could not stand upon the findings the the notification under Section 17 (4) was invalid in law. We do not find any force in these special appeals which must accordingly fail.;