R.K.MAHAJAN, J. - (1.) This a writ petition filed by the petitioner Shri Choudhary Ram Harakh Chand seeking writ, direction or order in the nature of certiorari quashing the Notification No. 90/VIII-2 (80-81) BHJ-AA dated 12-11-1980 and Notification No. 5603/5-8-XVI-1075-81 dated 27/02/1984 (annexure Nos. 1 and 3 respectively). By virtue of which Notifications for acquisition of land of 2.02 acre was made on 12-11-1980 for the construction of Swasthya Raksha Samiti Janta Hospital, Gorakhpur. Annexure No. 3 to the writ petition relates to declaration under S. 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act of 1894). After declaring the purpose of land to the public and it is mentioned that the objections under Rule 4 of the Land Acquisition (Companies) Rules, 1963 (hereinafter referred to as the Rules of 1963) in consultation with the land acquisition committee constituted under Rule 3 of the said Rules of 1963 has been taken care of. This notification also speaks of issuance of notification under S. 17 of the Act of 1894.
(2.) The brief facts on which this petition has arisen are as detailed hereunder. The petitioner is lessee of plot no. 134 situate in Chawani (Cantonment), Gorakhpur area 7.95 acres. It was granted to one Shri Sahi Mahabir Prasad Chowdhary by the Secretary of Government of India under permanent lease on 21-4-1910. The petitioner's grand father Mahabir Prasad Chowdhary constructed residential bungalow, out houses, garage and servant quarters over the land and the said bungalow is now designated as No. 22. Later on, part of the land was donated with the permission of Government for construction of Nursery School and for establishing telephone exchange. The remaining land now comprised out-houses, garage, Kitchen, lawn etc. There is one society namely Swasthya Raksha Samiti, Gorakhpur said to have been established by Dr. Om Prakash Joshi and Dr. Badri Prasad Joshi, his son and (hey are private practitioners and established a clinic known as Janta Chikitsalaya near Reti Chowk, Kali Bari, Gorakhpur. It is charging exhorbitently from the patients. It is alleged that Dr. Badri Prasad Joshi in order to deprive the petitioner from valuable property of 2.02 acres of land approached the Government for acquisition of the land for establishment of a hospital and the Land Acquisition Collector under Chapter V11 of the Act of 1894 issued notification on 21-3-1981 as mentioned in impugned notification (annexure No. 1). Thereafter the petitioner also filed objections under S., 5 of the Act of 1894 (annexure No. 2) raising objections for the acquisition.
(3.) The grievance of the petitioner is that S. 39 of the Act of 1894 has been amended by U.P. Act No. XXII of 1954 and the amended section provides that the provision of Ss. 6 and 7 will apply in cases of acquisition for societies registered under the Societies Registration Act 1860. It is relevant to quote S. 40 of the Act of 1894 : "Section 40 - Previous enquiry - (1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under S. 5-A, sub-Sec. (2) or by an enquiry held as hereinafter provided,-(a) That the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or(aa) that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is engaged or in taking steps for engaging itself in any industry or work which is for a public purpose, or ............ "Section 40 of the Act of 1894 provides that the State Government shall not give consent foar acquisition as averred in para 12 of the petition unless it is satisfied on the report of the Collector under S. 5(i) of the Act of 1894 and after holding enquiry clause (b) of S. 40 provides that if the acquisition is being done for usefulness of the public after satisfaction of the State Government. It is averred that the Central Government has framed rules in exercise of power under S. 55 of the Act of 1894 in respect of the acquisition for Companies. These rules are known as Land Acquisition (Companies) Rules, 1963. Admittedly the present case is governed by these Rules. It is contended by the learried counsel that Rule 3 of the Rules of 1963 provides for the purpose of advising the appropriate Government in relation to acquisition of land under Part VII of the Act the appropriate Government shall, by notification in the official Gazette, constitute a Committee to be called Land Acquisition Committee. Rule 4 of the Rules of 1963 further provides That the State Government shall hold an enquiry is respect of following matters before initiating acquisition proceedings and Government s5all direct the Collector to submit a report to it on following matters :-(i) that the company has made its best endeavour to find out lands in the locality suitable for the purpose of acquisition;(ii) that the Company has made all reasonable efforts to get such lands by negotiations with the persons interested therein on payment of reasonable price and such efforts have failed;(iii) that the land proposed to be acquired is suitable for the purpose.(iv) that the area of land proposed is to be acquired is not excessive;(v) that the Company is in a position to utilise, the land expeditiously; andvi) Where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land.;