- (1.) THIS petition has been filed to challenge the validity of the Aliganj Street and City Expansion Scheme, an Improvement Scheme framed under the Nagar Mahapalika Adhiniyam by the Nagar Mahapalika, Lucknow and subsequently adopted by the Lucknow Development Authority constituted under U. P. Urban Planning and Development Act, 1973. The petitioner has challenged the validity of acquisition on various grounds. Some of the grounds raised by the learned counsel were the same which were considered by us in Writ Petn. No. 137 of 1974 (Mahabir Singh Kotwal v. Lucknow Nagar Mahapalika) and Writ Petn. No. 973 of 1973 (Jhau Lal v. Nagar Mahapalika Lucknow) reported in AIR 1977 All 504. The learned counsel has adopted the arguments which had been raised in those two petitions and in view of our judgments has not taken us over again through those grounds. Our judgment in respect of those grounds is the same as given in earlier judgments.
(2.) THE petitioner has raised two additional grounds in this case. THE first ground is that the petitioner was not given an opportunity of hearing as contemplated by Ss. 357/358 of the U. P. Nagar Mahapalika, Adhiniyam which are equivalent to S. 5-A of the Land Acquisition Act. THE second ground urged is that certain portions of the land could not be the subject-matter of acquisition as they comprised of Waqf property on which a mosque and certain graves stood. THE petitioner has filed an affidavit to the effect that he goes to the mosque for offering prayers and some of the graves hold the dead bodies of his ancestors. We will take the second point first. The learned counsel has urged that the acquisition of land on which the mosque is situated or where the graves exist cannot be the subject-matter of acquisition in view of Arts. 25 and 26 of the Constitution. The contention is that the provisions of the Land Acquisition Act and the U. P. Nagar Mahapalika Adhiniyam which empower the acquisition of all land without making a distinction between the land covered by a mosque or a grave is unconstitutional as offending Arts. 25 and 26 of the Constitution and is, accordingly, void under Art. 13 of the Constitution. He has also urged that a harmonious interpretation be placed on the Land Acquisition Act and it should be held that the Land Acquisition Act does not deal with the acquisition of such land on which a mosque or a grave may stand. We are unable to give to the provisions of the Land Acquistion Act the interpretation the learned counsel has sought. The expression ' land' has been defined in S. 3 (a) of the Land Acquisition Act as follows: " The expression " land" includes benefits to arise out of land and things attached to the earth or permanetly fastened to anything attached to the earth." Sec. 6 permits the acquisition of any land as defined in S. 3 of the Act. It is thus not possible for us to interpret the Land Acquisition Act in a manner so as to exclude land covered by a mosque or a grave. We are examining the provisions of the Land Acquisition Act as acquisition under the U. P. Nagar Mahapalika Adhiniyam is made in accordance with the provisions of the Land Acquisition Act itself.
(3.) THE learned counsel for the petitioner relied on certain instruction contained in para. 411 (2) of Chapter 14 in Revenue Manual, Volume I. THE instructions contained therein are only recommendatory in nature and require that as far as possible such constructions be left out of acquisition as may offend religious feelings. THEse directions cannot be sufficient to nullify or invalidate an acquisition made under the Land Acquisition Act or under the Nagar Mahapalika Adhiniyam. The wider question that arises in the case is about the constitutional validity of the Land Acquisition Act or the provisions of the U. P. Nagar Mahapalika Adhiniyam dealing with the acquisition, in so far as they permit the acquisition of land for a public purpose without excluding the lands which may be subject-matter of Waqfs and which may be constituting a mosque or be having graves.;