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V,dated 14th July,1923 STA |
The said amendment was assented to by the Governor General on 5th August,1923 and came into force on 1st January,1924 STA |
The importance and scheme of Section 5A was construed by this Court in several cases PRE |
As early as in 1964,this Court in Nandeshwar Prasad and Ors.vs PRE |
U.P.Government and Ors PRE |
Etc PRE |
AIR 1964 SC 1217 1963 Indlaw SC 141 speaking through Justice K.N.Wanchoo (as His Lordship then was PRE |
held."The right to file objections under Section 5A is a substantial right when a person's property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side-wind PRE |
In that case the Court was considering the importance of rights under Section 5A vis--vis S.17(1) and S.17(1 PRE |
A) of the Act PRE |
The same view has been reiterated by another three-Judge Bench decision of this Court in Munshi Singh and Ors PRE |
Vs PRE |
Union of India (1973) 2 SCC 337 1972 Indlaw SC 176.In Para 17 of the report this Court held that Section 5A embodies a very just and wholesome principle of giving proper and reasonable opportunity to a land loser of persuading the authorities that his property should not be acquired PRE |
This Court made it clear that declaration u/s.6 has to be made only after the appropriate Government is satisfied on a consideration of the report made by the Collector under Section 5A.The Court,however,made it clear that only in a case of real urgency the provision of Section 5A can be dispensed with PRE |
In Hindustan Petroleum Corporation Limited vs PRE |
Darius Shahpur Chennai and ors.,(2005) 7 SCC 627 2005 Indlaw SC 578,this Court held that the right which is conferred under Section 5A has to be read considering the provisions of Article 300-A of the Constitution and,so construed,the right under Section 5A should be interpreted as being akin to a Fundamental Right PRE |
This Court held that the same being the legal position,the procedures which have been laid down for depriving a person of the said right must be strictly complied with PRE |
In a recent judgment of this Court in Essco Fabs 2008 Indlaw SC 2494 (supra),(2009) 2 SCC 377,this Court,after considering previous judgments as also the provisions of S.17 of the Act held: "Whereas sub-s.(1) of S.17 deals with cases of "urgency",sub-s.(2) of the said section covers cases of "sudden change in the chann... |
This Court,therefore,held that once a case is covered under sub-s.(1) or (2) of Section 17,sub-s.(4) of S.17 would not necessarily apply PRE |
In our opinion,therefore,the contention of learned counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by sub-ss.(1) or (2) of S.17 of the Act,sub-s.(4) of S.17 would necessarily apply and there is no question of holding inquiry or hearing objections under Section... |
Acceptance of such contention or upholding of this argument will make sub-s.(4) of S.17 totally otiose,redundant and nugatory PRE |
This Court also held that in view of the ratio in Union of India vs PRE |
Mukesh Hans,(2004) 8 SCC 14 2004 Indlaw SC 1413,sub-s.(4) of S.17 cannot be pressed into service by officers who are negligent and lethargic in initiating acquisition proceedings PRE |
The question is whether in the admitted facts of this case,invoking the urgency clause u/s.17 (4) is justified Ratio |
In the writ petition before the High Court,the petitioners have given the details of the land holding,and it has also been stated that the entire holding of petitioners 2,5,7,9,10,11 and 13 have been acquired,and as a result of such acquisition,the petitioners have become landless Ratio |
From the various facts disclosed in the said affidavit it appears that the matter was initiated by the Government's letter dated 4th of June,2008 for issuance of S.4(1) and S.17 notifications Ratio |
A meeting for selection of the suitable site for construction was held on 27th June,2008,and the proposal for such acquisition and construction was sent to the Director,Land Acquisition on 2nd of July,2008.This was in turn forwarded to the State Government by the Director on 22nd of July,2008.After due consideration of... |
Thereafter,over a period of 9 months,the State Government deposited 10% of compensation payable to the landowners,along with 10% of acquisition expenses and 70% of cost of acquisition was deposited,and the proposal for issuance of S.6 declaration was sent to the Director,Land Acquisition on 19th of June,2009.The Direct... |
Thus the time which elapsed between publication of S.4(1) and S.17 notifications,and S.6 declaration,in the local newspapers is of 11 months and 23 days,i.e.almost one year Ratio |
This slow pace,at which the government machinery had functioned in processing the acquisition,clearly evinces that there was no urgency for acquiring the land so as to warrant invoking S.17 (4) of the Act Ratio |
In paragraph 15 of the writ petition,it has been clearly stated that there was a time gap of more than 11 months between S.4 and S.6 notifications,which demonstrates that there was no urgency in the State action which could deny the petitioners their right under Section 5A.In the counter which was filed in this case by... |
The construction of jail is certainly in public interest and for such construction land may be acquired Ratio |
But such acquisition can be made only by strictly following the mandate of the said Act Ratio |
In the facts of this case,such acquisition cannot be made by invoking emergency provisions of S.17.If so advised,Government can initiate acquisition proceeding by following the provision of Section 5A of the Act and in accordance with law Ratio |
For the reasons aforesaid,we hold that the State Government was not justified,in the facts of this case,to invoke the emergency provision of S.17(4) of the Act RPC |
The valuable right of the appellants under Section 5A of the Act cannot flatten and steamrolled on the 'ipsi dixit' of the executive authority RPC |
The impugned notifications u/ss.4 and 6 of the Act in so far as they relate to the appellants' land are quashed RPC |
The possession of the appellants in respect of their land cannot be interfered with except in accordance with law RPC |
The appeals are allowed RPC |
No order as to costs RPC |
Appeals allowed RPC |
Accused Pathan Hussain Basha,was married to Pathan Haseena Begum (now deceased) on 23rd June,2002 at Guntur FAC |
It was an arranged marriage FAC |
At the time of marriage,it was promised that a dowry of Rs.25,000/-,besides other formalities,would be paid by the side of the wife to the husband FAC |
Out of this amount,a sum of Rs.15,000/was paid at that time and it was promised that the balance dowry of Rs.10,000/would be paid in the month of October,2002,upon which the marriage was performed FAC |
The father of the bride could not pay the balance amount within time,because he lacked the resources FAC |
The accused Pathan Hussain Basha,his father Pathan Khadar Basha,and mother Pathan Nazeer Abi forced her to get the balance amount of dowry FAC |
Despite such pressure,she was not able to get that money from her family FAC |
It is the case of the prosecution that for non-payment of dowry,the accused persons harassed the deceased and subjected her to cruelty FAC |
They even refused to send her to her parental house FAC |
This was informed by the deceased to various persons,including her relatives and elders FAC |
She was unable to bear the cruelty to which she was subjected,by the accused persons FAC |
On 15th February,2003,at about 11 a.m.,the deceased committed suicide by hanging herself in the house of the accused FAC |
When Pathan Basheerunnisa,LW3 returned from her work,the accused sent her out giving her money to bring the soaps upon which she went out and when she came back,she found the accused absent and the bride hanging in the house FAC |
Subsequently,LW-3 Pathan Basheerunnisa sent her grandson Pathan Inayatullah Khan,LW-4 to the house of the parents of the deceased to inform them about the incident FAC |
When the parents of the deceased came to the house of the accused and found the deceased hanging from the beam with a saree,they untied her and took her to the Government General Hospital,Guntur hoping that the deceased may be alive FAC |
However,upon medical examination by the doctor,she was declared brought dead FAC |
The father of the deceased Pathan Yasin Khan,LW-1 and her mother Pathan Shamshad Begum,LW-2 were present at that time FAC |
LW-1,lodged the report,which was registered by Sri K.Srinivasarao,LW-16,the Sub-Inspector of Police FAC |
The FIR was registered under Section 304B and Section 498A of the Indian Penal Code,1860 (for short the "IPC").Thereafter,investigation was conducted by one Shri P.Devadass,LW-17.He inspected the site from where he recovered and seized the saree that had been used for hanging FAC |
This was done in the presence of LW-10 and LW-11,Shaik Ibrahim and Mohd FAC |
Ghouse,respectively FAC |
Thereupon,the body was sent for postmortem examination through Constable P.Venkateswara Reddy,LW-15.LW-17,P.Devdass,also took photographs of the scene.3 LW-13,Dr FAC |
M.Madhusudana Reddy conducted autopsy over the body of the deceased and prepared post-mortem certificate giving the cause of death as asphyxia,as a result of hanging FAC |
On 16th February,2003,at about 5 p.m.,Investigating Officer arrested all the three accused persons FAC |
They faced the trial and were convicted by learned Sixth Additional Munsif Magistrate,Guntur for committing an offence under Sections 498A and 304B IPC FAC |
They were committed to the Court of Sessions,Guntur Division,Guntur for such an offence FAC |
They faced the trial and the learned Sessions Judge vide its judgment dated 4th October,2004 found them guilty of the said offences and punished them as follows: "Hence A.1 to A.3 are sentenced to undergo R.I.for THREE YEARS and further sentenced to pay a fine of Rs.1,000/each (total fine amount Rs.3,000/-) offence pun... |
And further A.1 to A.3 are sentenced to undergo imprisonment for LIFE for the offence u/s.304-B IPC.Both the sentences shall run concurrently FAC |
The undergone remand period of A.1 to A.3 shall be set off u/s.428 Cr FAC |
P.C.M.O.1 shall be destroyed after expiry of appeal time FAC |
The unmarked property if any shall be destroyed after expiry of appeal time FAC |
The judgment dated 4th October,2004 passed by the learned Trial Court was challenged in appeal before the High Court FAC |
The High Court of Andhra Pradesh,vide its judgment dated 26th October,2006,while allowing the appeal in part,convicted accused Nos.1 and 2 for the aforementioned offences,however,acquitted accused No.3,namely,Pathan Khadar Basha RLC |
The sentence awarded by the Trial Court was confirmed RLC |
This gave rise to filing of the present appeals FAC |
First and the foremost,we must consider what is the evidence led by the prosecution to bring home the guilt of accused Ratio |
Accused were charged with offences under Sections 498A and 304B of the IPC.The FIR in the present case was lodged by LW-1,who is the father of the deceased Ratio |
According to this witness,on 23rd January,2002,the marriage of his daughter was solemnised with accused Pathan Hussain Basha and he had accepted to give Rs.25,000/in marriage Ratio |
He had given only Rs.15,000/and had agreed to pay Rs.10,000/-,after four months Ratio |
This witness has further specifically stated that the said accused treated his daughter in a proper manner for about two months Ratio |
In the marriage,he had also given a gold chain,a double bed,an iron safe and other items Ratio |
He had called his son-in-law,accused No.1,to his house,as per custom,at that point the accused demanded a ceiling fan Ratio |
A ceiling fan was lying with the witness and he gave that to his son in law,however,he protested the same on the ground that the old fan is not acceptable to him and he would like to have a new fan,which was bought for Rs.650/by the witness and given to his son-in-law Ratio |
When he again invited his son-in-law and the mother-in-law of his daughter,even then he had gifted some presents to them Ratio |
The accused asked for Rs.1,000/with a ring for the deceased Ratio |
The witness could pay only Rs.500/upon which the accused refused to take the deceased to the matrimonial home and went away Ratio |
Later on,the accused came to fetch deceased Ratio |
Subsequently,the motherin-law of the deceased,again,demanded the balance dowry amount of Rs.10,000/-,which he could not pay Ratio |
His daughter,after the Ramzan festival,had informed him that the accused persons were harassing her and were even beating and abusing her Ratio |
All three accused used to beat her for the remaining amount of dowry Ratio |
On 15th February,2003,a boy had come to him and told him that his daughter had died by hanging herself,whereupon he went to the house of the accused and found that his daughter was hanged to a wooden beam with a saree and she was dead Ratio |
The saree was removed,she was taken to the hospital where she was reported to have 'brought dead'.The statement of this witness i.e.LW-1 is corroborated by LW-3 and LW-7 Ratio |
It is stated by LW-3 that she knew all the accused persons as she was residing in the house of the accused and the deceased Ratio |
According to this witness also,in the beginning they were happy,however after some time,she used to hear some quarrel between the deceased and the accused persons Ratio |
Accused No.2,Pathan Nazeer Abi had given her some amount and asked her to go and bring the soaps Ratio |
After bringing the soaps,she went to the house of the accused persons and found that the accused was absent and the deceased was hanging on one side of the room Ratio |
After seeing this,she raised cries and people came to the scene Ratio |
LW-4,Pathan Inayatullah Khan,the grandson of LW-3,went to the house of the parents of the deceased and informed them about the unfortunate incident Ratio |
LW-7 stated on oath that he was present at the time of giving of dowry to the accused by the family of the deceased Ratio |
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