TaxTMI 
TaxTMI 
1993 (8) TMI 305
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.... It was stated to have been floated by members of the Bihar Finance Service who were landless and did not own any residential plot or house in the city of Patna. Statedly, its membership was not confined to the members of the Bihar Finance Service alone but was open to everyone who was similarly landless. The Society was organised and knit to secure from the State Government land by acquisition so that the society could give plots to its members or build houses and give them to its members. For the purpose, in 1973, itself it put a proposal to the State Government to acquire 59.95 acres of land in the revenue estate of village kUmhrar, a part of the city of Patna. After some steps, the State Government issued a notification under Section 4 of the Act on 21.4.81 inviting interested persons to file their objections received from interested persons, and disposed of by the Additional Land Collector, and on report submitted, declaration under Section 6 of the Act was made to acquire land to the extent aforementioned except 5 acres which were set apart for allotment to persons likely to be disturbed by the acquisition. On writ petitions filed, the High Court quashed the declaration under....
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.... "public purpose" includes provision for or in connection with: (i) sanitary improvements of any kind, including reclamation; and (ii) the laying out of village-sites, townships or the extension, planned development or improvement of existing village-sites or townships. Sub-section (1) of Section 5A as in Bihar provides that any person interested in any land which has been notified under Section 4, Sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the notification referred to in the said sub-section at some conspicuous place in the village in which the land is situated or of the service of the copy thereof on him, whichever is later, object to the acquisition of the land or of any land in the locality, as the case may be. 8. Sub-section (2) substituted in Bihar provides that every objection under Sub-section (1) shall be made in writing to the Collector who shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and making such further enquiry, if any, as he thinks necessary, decide the objectio....
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.... Municipal Corporation of the City of Ahmedabad and Anr. Affording of opportunity of being heard to the objector is a must. The provision embodies a just and wholesome principle that a person whose property is being, or is intended to be, acquired should have the occasion to persuade the authorities concerned that his property be not touched for acquisition. This right is not absolute, however, if the appropriate Government, in its discretion, choses to dispense with its applicability by invoking urgency provisions of 17 of the Act. But once Section 5A is kept applicable, there is no cause to treat its provisions lightly or casually. 11. The other count on which the High Court made the remand was the supposal violation of Section 40 of the Act and Rule 4 of the Land Acquisition (Companies) Rules, 1963 (hereinafter referred to as 'the Rules') framed by the Central Government in exercise of the power conferred by Section 55 of the Act. To appreciate this aspect of the matter, it would have to be cleared as to what is the status of the cooperative society of which the appellants are the members. The cooperative society (which by now stands impleaded as a respondent but due ....
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....nt to give consent under Section 39. The enquiry conceived of under Section 40 could be through an officer appointed by the appropriate Government, held at appointed time and place in order to determine which out of the following three objects of acquisition are sought to be achieved by the company: (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 for a public purpose; or (b) that such acquisition is needed for the construction of some work and that such work is likely to prove useful to the public. The officer appointed to hold the enquiry is empowered under Sub-section (3) of Section 40 to summon and enforce attendance of witnesses and compel the production of documents by the same means and, as far as possible, in the same manner as is provided by the CPC in the case of Civil Court. 12. Thereupon Section 41 mentions that if the appropriate....
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....ublic utility governing the deliberation and decision. Section 44A imposes the restriction on transfer of any land acquired under Part VII by sale, mortgage, gift, lease or otherwise except with the previous sanction of the appropriate Government. And finally, Section 44B distinguishes between a private company and a Government company providing that notwithstanding anything contained in the Act, no land shall be acquired under this Part, except for the purpose mentioned in Clause (a) of Sub-section (1) of Section 40, for a private company which is not a Government company. The explanation added thereto says that "Private Company" and "Government Company" shall have the meaning respectively assigned to them in the Companies Act, 1956. 14. Now when we direct ourselves to the provision of the Companies Act, Section 2(10) provides that a company means a company as defined in Section 3. Section 3 defines company to be company formed and registered under the Companies Act or an existing company as defined therein. "Private company" has been defined to mean a company by articles of which the right to transfer its shares, if any, is restricted and the number of its members is limited t....
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.... the other must be kept handy and if per chance one is defective, when both existing, the other can be deployed to satisfy the requirement of law. 15. But that is not the be-all and end-all for the company. In order to approach the Government with a request for acquisition the company has to satisfy the provisions of the Rules also. Rule 4 enjoins as under: 4. Appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings:-(1) Whenever a Company makes an application to the appropriate Government for acquisition of any land, that Government shall direct the Collector to submit a report to it on the following matters, namely- (i) that the company has made its best endeavour to find 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 to be acquired is not excessive; (v) that the company is in a position to utilise th....
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....but would also, to fulfill the needs of rules of natural justice, give sufficient opportunity to the land owners to refute the case of the company at least in so far as the matter like negotiation of price is concerned, as also on other relevant matters. That Rule 4 is mandatory and essential to be complied with has been ruled by this Court in various decisions. Reference may be made to some of them being: State of Gujarat and Anr. v. Patel Chaturbhai Narsibhai and Ors. , State of Gujarat and Ors. v. Ambalal Haiderbhai and Ors. , and General Govt. Servants Cooperative Housing Society Ltd. and Ors. v. Sh. Wahab Uddin and Ors. . 17. The High Court, in the facts and circumstances, has, however, held that no report of the enquiry under Sub-Rule (2) of Rule 4 was forwarded by the State Government to the Land Acquisition Committee and it consented to the acquisition in violation of the command of law. The High Court has also gone on to say that the consent of the State Government violated Sub-Rule (3) of Rule 4. On the aspect of Section 40 of the Act, the High Court has even gone on to hold that the writ petitioners were not given opportunity to dispel the needs of the company by hold....
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.... housing, and which one need be preferred was a baffling question. Learned Counsel for the parties, besides canvassing their respective points of view on law, ventured to show us documents about the enquiry supposedly held to satisfy the requirements of Section 40 or/and of Rule 4 of the Rules as also of proceedings under Section 5A of the Act, for and against the governmental action. On the layers and layers of common facts, leaving aside individual facts, the High Court steered a common course to effect a remand. In the circumstances, we feel that it was a possible view which the High Court could have taken but this view put settlement of the dispute beyond sight. Here the High Court seems to have erred in not, at least, restricting the terms of the remand. Persons who had not gone before the High Court in writ petitions need not have been given relief. The remand should have been confined to the interests of those who were the objector writ petitioners before the High Court. There should not have been a remand as wholesome as it is. The declaration under Section 6 should have been allowed to be sustained pertaining to land in other than the land of the writ petitioners, and so f....
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....amenities for the benefits of workmen employed by it and construction of some work for public utility etc. serve the public purpose. The acquisition for the company and the purpose for it, can well be investigated under Section 5A or Section 40, necessarily after the notification under Section 4. Reference may usefully be made to Babu Barkya Thakur v. State of Bombay (now Maharashtra) and Ors. . It was the conceded case before the High Court that there could be no acquisition for the respondent-Society without provisions of Section 40 of the Act being involved and complied with. In Babu Barkya's case supra too, this Court has taken the view that as provided in Section 39, the machinery of the Land Acquisition Act beginning with Section 6 and ending with Section 37 shall not be put into operation unless two conditions precedent are fulfilled, namely, (i) the previous consent of the appropriate government has been obtained and (ii) an agreement in terms of Section 41 has been executed by the Company. Such consent could be given if it was satisfied on the report of the enquiry envisaged by Section 5A(2) or enquiry held under Section 40 itself that the purpose of the acquisition is....