R.L. Gulati, J. - (1.) This is a petition under Art. 226 of the Constitution.
(2.) There is a Bund known as Ballia-Bairia Bund in the district of Ballia constructed in the year 1958-59 to protect the land and the property of the inhabitants of a number of villages from the effect of flood and erosion of the river Ganga. On the Bund there is a pucca pitch road maintained and supervised by the Public Works Department for public purposes and transport etc. In the year 1966 the authorities finding some danger to the public owing the erosion of the river near village Gai Ghat, started constructing spurs as a measure of protection of the residence of affected villages and of the said Bund as also to check the erosion and divert the current of the river. Later the authorities decided to construct a retire bund as a measure of safety at a distance of about one mile from the place of erosion. For that purpose the State Government issued notification under Sec. 4(1) and Section 5 of the Land Acquisition Act in order to acquire the necessary land. This led to litigation. But. the project was later on abandoned and that litigation came to an end. It appears that the respondents have now decided to construct a Sahayak Bund Road instead of Retire Bundh with a view to maintain the link between Ballia-Bairia Road in the event of any danger on account of break in the existing Ballia-Bairia Bund Road. For this purpose some preliminary operations were carried on the land of the petitioners. The petitioners alleged that no notification under the Land Acquisition Act or any other Act was even issued or made known to them for acquisition of the land covered by the said Sahayak Bund Road or for empowering the authorities to dig out any earth from their land. They then filed the present writ petition on 5th July, 1972 complaining that the digging operations carried out by the respondents on their land have wholly unauthorised and illegal. This petition was presented on 5th July, 1972 but was ordered to be listed for admission on 12th July, 1972 and in the mean time Standing Counsel was directed to file a counter-affidavit. The petition was eventually admitted on 13th July, 1972. In the meantime a notice purporting to be under Section 3/8 of the Rural Development Requisitioning of Land Act, 1948 was served upon petitioner Nos. 1 and 3, on 13th July, 1972 by the Tahsildar. Ballia, the petitioners thereupon moved an amendment application seeking to challenge the aforesaid notice.
(3.) The petitioners have challenged the impugned notice on the ground that it has been issued malafide in order to cover up their unauthorised operations carried out in their land. There was no notification of any kind when the operations started and the impugned notification was issued only after the respondents became aware of the writ petition filed by the petitioner. It is ,further contended that Section 3/8 of the Rural Development (Requisitioning of Land) Act, 1948 cannot be applied in a case like the present one where the land of the petitioners is being acquired permanently and not for any temporary use as contemplated by the aforesaid Act. There is considerable force in this contention.;