T.S.Misra, J. - (1.) THE petitioner is owner of plots Nos. 491, 494, 498, 499 and 497, having an area of 3 Bighas which according to her were used by her for the purposes of business as also for worship. She has constructed a Pucca residential house, cattle shed, oil mill, flour mill, temple and a Samadhi of her father-in-law, on the said land and runs there a Dairy and Poultry farm. THE opposite party No. 3 got the said land acquired for developing a Housing Scheme. When the petitioner came to know of the acquisition, she made a representation dated 16th January, 1970 and also met the Commissioner of Housing Board, Uttar Pradesh who, it is alleged, informed her that her land would not be acquired and that she would not be disturbed. However, on 12th January, 1973 a few employees of the Housing Board reached the land and started making measurements and counting the trees and plants standing thereon to which the petitioner objected. Aggrieved by that action of the opposite parties the petitioner sent a reminder to the Commissioner of the Housing Board on 31st Feb., 1973 but to no avail. She was served with the impugned notice and was told to represent her case before the Special Land Acquisition Officer of the Housing Board. THEse notices are Annexures-3 and 3-A. Her contention is that the land and property in question were neither waste land nor arable land and that she was never informed of the principle on the basis of which the compensation of land and the material embeded on it would be paid. THE plan of the scheme was neither shown to her nor sent to her in any manner. She has alleged that there are other private buildings, business premises and worship places in the locality which have been excluded from the scheme and had not been acquired by the opposite parties, whereas her property was being acquired. She has thus been discriminated against without any reasonable basis. She submitted a memorandum of objection in this regard before the Special Land Acquisition Officer of the Housing Board, but neither the representations nor objections have been disposed of. THE opposite parties, however, have decided to acquire the land of the petitioner arbitrarily. She has further alleged that Ss. 17 (1) and 17 (1-A) of the Land Acquisition Act as incorporated in the schedule to Avas Evam Vikas Parishad Adhiniyam under S. 55 of the said Act are ultra vires and violative of the provisions of Arts. 13 (2), 31, 31-A, 31-B, 31-C and 19 of the Constitution. She has also alleged that the impugned notice is violative of the provisions of Article 14 of the Constitution and as her land was not being acquired for the public purpose, the acquisition is not saved by Art. 31-C of the Constitution. She has, therefore, prayed for a writ in the nature of certiorari quashing the scheme so far as it relates to her land and also quashing the impugned notice. She has also prayed for a writ in the nature of prohibition restraining the opposite parties from acquiring her land.
(2.) THE petition was contested by the opposite parties. THE counter-affidavit filed on behalf of the opposite party No. 3, namely, the Commissioner, Housing Board, dated 24th May, 1973 discloses that the disputed land was being acquired for Bastauli Ghazipur Bhumi Vikas Evam Grihasthan Yojna, Lucknow. A notification under S. 28 of the Uttar Pradesh Avas Evam Vikash Parishad Adhiniyam, hereinafter called the Act, was published in the U. P. Gazette, dated 20-12-1969, 27-12-1969 and 3-1- 1970 and also in the Pioneer (English Daily) and Navjeewan (Hindi Daily) of the same dates. A notice under S. 29 of the Act was issued to the petitioner on 19-1-1970 and was served on Laxmi Narain, a servant of the petitioner' s husband. THE scheme was sanctioned by the State Government on 17th June, 1970 and a notification under S. 32 of the Act was published in the U. P. Gazette, dated 8th July, 1972. Sanction of the State Government under S. 17 of the Land Acquisition Act was given on 12th Oct., 1972 and a notification dated 12th Oct., 1972 under S. 17 of the Land Acquisition Act, as amended by the U. P. Avas Evam Vikas Parishad Adhiniyam was published in the U. P. Gazette, dated 28th Oct., 1972. THE petitioner, however, did not file any appeal to the State Government within 30 days, as required by S. 32 (3) of the Act. In para 11 of the counter-affidavit it is stated that out of the land of the petitioner having an area of 2 bighas 17 biswas 15 biswansis, possession over 2 bighas 8 biswas has already been taken. However, possession of Kothris and tube well has not been taken and these constructions are said to be unauthorised having been made after the publication of the notification under S. 28 of the Act. It is further alleged that the petitioner knew about the notification and had filed her objections on l6th Jan., 1970 which were heard by the Planning and Development Committee of the Parishad in the presence of Sri P. N. Singh, husband of the petitioner, on 18-2-1971. THE objections were rejected and the decision was approved by the Parishad on 22nd May, 1971. THE allegation of the petitioner that the then Commissioner of the Housing Board had given any assurance to her that her land would not be acquired has been denied. THE other averments made by her have also been repudiated. In her rejoinder affidavit the petitioner has reiterated her allegations made in the petition and has denied the averments made on behalf of the opposite party No. 3 in the counter-affidavit. For the petitioner it was urged that inasmuch as residential buildings and places of worship owned by certain persons in the locality have been excluded from the operation of the Scheme the petitioner had been discriminated against by the Housing Board while it seeks to acquire her land and the property standing thereon. Hence it was urged that acquisition of her property is in breach of the provisions of Art. 14 of the Constitution. We find no merits in this contention. The property of the petitioner sought to be acquired is the land having a total area of 2 bigha 17 biswas and 17 biswansis. In the counter-affidavit filed on behalf of opposite party No. 3 it is stated that certain constructions standing on that land were unauthorised as they were made after the publication of the notification under S. 28 of the Act. The opposite party No. 3 has already taken possession of the major portion of the land measuring 2 bighas and 8 biswas out of the total area of 2 bighas, 17 biswas 15 biswansis. This is indicative of the fact that major portion of the petitioner' s land did not have any constructions thereon. According to the petitioner private buildings, business premises and worship places of certain persons have been excluded from the operation of the Scheme, for example, the temple premises of Baba Bhootnath, the premises of Mahanagar Cold Storage, Gopal Cold Storage and the dwelling houses situated between the temple of Baba Bhootnath and village Ghazipur have not been acquired. These properties are in the shape of buildings. Two of them are used for industrial purposes whereas the other is used as a place of worship. Some of them are alleged to be used as dwelling houses. The property of the petitioner was not a building, but was land having an area of 2 bighas 17 biswas 15 biswansis, out of which the possession of an area of 2 bighas 8 biswas has already been taken by the opposite parties. The character of the property of the petitioner is obviously different from the character of the properties of other persons referred to by the petitioner which have not so far been acquired. Whether certain constructions existing on the land of the petitioner were made by her before or after the issuance of the notification for acquisition is a disputed question of fact which cannot be gone into in this writ petition. The fact however remains that a substantial portion of the land of the petitioner has already been taken possession of and over which no building stood. The case of the petitioner thus stands on a different footing, in the circumstances the impugned notices cannot be said to be violative of Art. 14 of the Constitution.
(3.) THE other contention of the petitioner that the impugned acquisition is violative of Art. 19 (1) (f) of the Constitution is equally without substance. It is by now well settled that a law for compulsory acquisition of property made under Art. 31 (2) cannot be challenged under Art. 19 (1) (f) read with Art. 19 (5) of the Constitution. (See AIR 1969 SC 634 (State of Gujarat v. Shantilal Mangaldas) and AIR 1968 SC 870 (Ishwarlal Girdharlal v. State of Gujarat)). It was next urged that the impugned acquisition is violative of the principles contained in Art. 31-A of the Constitution in as much as the petitioner' s property is being acquired without adopting the procedure laid down in sections 17 and 19 of the Land Acquisition Act. Further it was urged that sub- sections 17 (1) and 17-A of the Land Acquisition Act incorporated in the schedule to the Act under S. 55 of the Act are ultra vires as they are in contravention of Sections 17 (1) and 17 (1-A) of the principal Land Acquisition Act and are derogatory of the provisions of Arts. 13 (2), 31, 31-A, 31-B, 31-C and 19 (1) (g) of the Constitution.;