- (1.) JUDGEMENT This is a petition under Article 226 of the Constitution praying for a writ of mandamus commanding the respondents, namely, the State of Uttar Pradesh and the Collector of Lucknow not to take acquisition proceedings regarding the land mentioned in the notifications (copies contained in annexures 1 and 2) and not to disturb the possession of the petitioner over that land.
(2.) A notification was issued on the 21st of November, 1966 by respondent No. 2, the Collector of Lucknow under Subsection (1) of Section 4 of the Land Acquisition Act, 1894 (Act 1 of 1894) under which the respondents proposed to acquire an approximate area of 22 acres, viz. 9500 square feet from plot No. 163, situate in Hazratganj, Lucknow the plan as to which could be inspected at the office of the Collector of Lucknow. A notification was thereafter issued on the 8th of May, 1967 under Section 6 of the Act along with a notification under Subsection (1-A) of Section 17 of the Act as amended in its application to Uttar Pradesh directing the Collector of Lucknow, though no award under Section 11 had been made, on the expiration of 15 days from the publication of the notification under Sub-section (1) of Section 9 to take possession of the land. The land belongs to the State of Uttar Pradsh, opposite party No. 1, the interest of the petitioner being of a lessee, the lease having been granted to him on the 1st of June, 1939 of an area of 10 Bighas 19 biswas 16 biswansis 5 kachwansis out of the plot No. 163 for a term of 90 years from the 1st of June, 1939. The area which is sought to be acquired by the notifications, above referred to, is said to be part of that land of which lease has been granted to the petitioner. This fact is not disputed. According to the petitioner, the notifications under Sections 4 and 6 of the Land Acquisition Act gave only an approximate area of 9500 square feet to be acquired and the plan which could be inspected in the office of the Collector shows the land as 100 x 100. The land, however, has not been measured so far when it should have been measured under Section 8 of the Land Acquisition Act. The case of the petitioner is that in spite of the mandatory provisions of law that the land should be measured, the Collector has issued notice under Section 9 of the Act without its being measured. The land, it is said, has also not been marked out on the spot as should have been done under Section 8 of the Land Acquisition Act. As such it is said that any proceeding for the acquisition of the land without the land being measured and marked out on the spot was without jurisdiction, illegal and ultra vires. The notice under Section 9, also, therefore, was invalid on account of the omission to measure and mark the area proposed to be acquired. It is in these circumstances that the writ petition has been filed with the prayer, referred to above. The allegation that the land has not been measured and that it has not been marked out on the spot is contained in paragraphs 5 and 5A of the petition. In the counter-affidavit with respect to paragraph 5 it is not stated that the land has been got measured, but what has been stated is that the land proposed to be acquired has been marked in the plan as measuring 100 x 100 and that it is in the shape of a rhombus and the area so calculated comes approximately to 9500 square feet. The way in which the area has been calculated is to be found in Appendix A where it is shown to be 9503.57 square feet, say 9500 square feet. As to the allegation in paragraph 5A that the land has not been marked out on the spot, the counter affidavit claims that it was measured, planned and marked out under Section 4 of the Land Acquisition Act for purposes of acquisition and as it was not necessary again to mark it out under Section 8 when it had already been marked out under Section 4, the re-measuring has not been done. This is contained in paragraph 2 of the counter affidavit dated the 20th/22nd of June, 1968 filed by one Shiva Narain. This paragraph has been sworn from information based on the record maintained in the office. There is a copy of a letter attached to Annexure A filed on behalf of the respondents issued from the Executive Engineer to the Special Land Acquisition Officer, Nagar Mahapalika indicating that the land was measured out in the presence of Shiva Narain Amin of the Nagar Mahapalika on the 27th of June, 1967. The notice under Section 9, copy of which is contained in Annexure B, however, which purports to be signed by the same Shiva Narain Amin, shows that it is of a date prior to the 27th of June, 1967, when according to the letter above referred to it was measured by Shiv Narain Amin. The affidavit of Shiva Narain to the effect that the land had been measured, planned and marked put under Section 4 of the Land Acquisition Act for purposes of acquisition is dated the 20th of June, 1968 and is sworn from information based on record. In view of the affidavit of the petitioner stating categorically to the effect that no measurement was done of the land nor was it marked out on the spot, this affidavit of Shiva Narain, based as it is only on information derived from records which have not been produced, is not sufficient to rebut it. Moreover, the letter accompanying Annexure A supports the petitioners case that the measurement, if any, was done after the notice under Section 9 had already been issued.
(3.) THE relief is claimed on behalf of the petitioner on two grounds. Firstly, it is pointed out that there could be no acquisition of land which belonged to the Government and that the interest of the petitioner which was only that of a lessee could not be acquired because the Land Acquisition Act contemplates acquisition of the land itself and not of any interest therein. The second ground is, as already mentioned, that there has been no marking out of the land or measuring of the same at the Section 8 stage and as such no notice could be issued under Section 9 and any further proceeding would be against the provisions of the Act.;