Subhash and ors. Vs. State of U.P. and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. orderv.m. sahai and pankaj mithal, jj.1. we have heard sri prabhakar sinha, learned counsel for the appellants and learned standing counsel appearing respondents.2. the only argument of learned counsel for the appellants is that the writ petition of the appellants has been dismissed by learned single judge without granting time even once to file rejoinder-affidavit so as to rebut the stand taken in the counter-affidavit.3. we are of the opinion that the writ petitioners have a right to file rejoinder-affidavit and they were entitled for some reasonable time to file rejoinder-affidavit. the purpose of granting time to file rejoinder-affidavit is to meet the allegations made in the counter-affidavit. accordingly in dismissing the writ petition only on the basis of the counter-affidavit the learned single judge committed an error as it is ex facie against the principles of fair play. it may have been different where repeatedly time was being granted to file rejoinder-affidavit and the petitioner was not filing rejoinder-affidavit. in that case the learned single judge would have been justified in deciding the writ petition but where no time was ever granted for filing rejoinder-affidavit, the learned single judge was not justified in deciding the writ petition without giving an opportunity for filing rejoinder-affidavit. therefore, the judgment and order dated 1.8.2008, passed by learned single judge is not sustainable.4. in the result, the appeal succeeds and is allowed. the judgment and order dated 1.8.2008, passed by learned single judge is set aside. the appellants are granted three weeks time to file rejoinder affidavit and thereafter the writ petition be decided by the learned single judge subject to his lordship's conventence.

Judgment:
ORDER

V.M. Sahai and Pankaj Mithal, JJ.

1. We have heard Sri Prabhakar Sinha, learned Counsel for the appellants and learned standing counsel appearing respondents.

2. The only argument of learned Counsel for the appellants is that the writ petition of the appellants has been dismissed by learned single Judge without granting time even once to file rejoinder-affidavit so as to rebut the stand taken in the counter-affidavit.

3. We are of the opinion that the writ petitioners have a right to file rejoinder-affidavit and they were entitled for some reasonable time to file rejoinder-affidavit. The purpose of granting time to file rejoinder-affidavit is to meet the allegations made in the counter-affidavit. Accordingly in dismissing the writ petition only on the basis of the counter-affidavit the learned single Judge committed an error as it is ex facie against the principles of fair play. It may have been different where repeatedly time was being granted to file rejoinder-affidavit and the petitioner was not filing rejoinder-affidavit. In that case the learned single Judge would have been justified in deciding the writ petition but where no time was ever granted for filing rejoinder-affidavit, the learned single Judge was not justified in deciding the writ petition without giving an opportunity for filing rejoinder-affidavit. Therefore, the judgment and order dated 1.8.2008, passed by learned single Judge is not sustainable.

4. In the result, the appeal succeeds and is allowed. The Judgment and order dated 1.8.2008, passed by learned single Judge is set aside. The appellants are granted three weeks time to file rejoinder affidavit and thereafter the writ petition be decided by the learned single Judge subject to his lordship's conventence.