G. Kasthuri Ammal and Others vs The State of Tamil Nadu and Another

Nainar Sundaram, J.—The petitioners in W.P. No.3495 of 1982 are the appellants in this writ Appeal. The respondents in the Writ petition

are the respondent herein. We propose to refer to the parties as per their nomenclature in the writ petition, The petitioners challenged the land

acquisition proceedings in respect of their lands. In the land acquisition proceedings, urgency powers were invoked and the enquiry u/s 5-A of the

Land Acquisition Act I of 1984, herein after referred to as the Act, was dispensed with. Before the learned Single Judge, who heard the writ

petition two contentions were urged and they are as follows:

There is no warrant at all for invoking the urgency powers dispensing with the enquiry u/s 5-A of the Act; and

There is an alternative site for serving the purpose of the acquisition, namely, providing a pathway for the Harijan of the locale.

The learned single Judge did not find a warrant to countenance these two contentions and he dismissed the writ petition and this writ appeal is

directed against the order of the learned Single Judge.

Mr. G. Ravi Shanker, learned Counsel for the petitioners, would urge in this Writ Appeal the very same two points taken before the learned

single Judge in the Writ Petition. He would contend that though the question of urgency is for the Government to decide and it will not ordinarily be

justiciable, yet nothing is exposed in the case by the respondents to justify the invocation of the urgency powers and in such a contingency this

Court must interfere because valuable rights to participate in an enquiry u/s 5-A of the Act and to demonstrate against acquiring the lands of the

petitioners have been done away with. When we go through the papers placed before us, we are persuaded to accept this submission of the

learned A counsel for the petitioners. A decision on the question of invoking urgency is only that of the Government. That decision is not ordinarily

justiciable. But, that decision must be taken on proper material and in an objective manner. That power is not to be invoked mechanically. When

this Court is called upon to see as to whether the invoking of the urgency power has been properly exercised, it has necessarily to examine whether

the decision was based on acceptable material and has not been done in an arbitrary manner without reference to the factual details. The enquiry

u/s 5-A of the Act, enables the owner of the land, sought to be acquired, to make his objections and there has to be normally, consideration of the

said objections, before a decision is taken; and the declaration u/s 6 of the Act made. By invoking urgency powers, this normal process is

dispensed with. Naturally, it becomes the obligation and duty of the court, when it is called upon to examine the propriety of invoking of urgency

powers, to find out as to whether such invoking of urgency powers has been properly done and not arbitrarily without reference to existence of

urgency.

Two materials were pressed into service before the learned single Judge to impress upon him with regard to the justification for invoking the

urgency powers. One is the report of the Tahsildar dt. 26.2.1980, the contents of which, as per extract found in the order of the learned single

Judge, run as follows:

There is a burial ground in R.S. No. 1231 of Chokkankollai Village in Chidambaram Taluk. This burial ground is far away from colony and they

have to pass odai to reach the burial ground. Normally there will be four feet of water in the odai. In rainy season there will be flood in the odai and

it will be too difficult for the Harijans to take the dead body to the burial ground.

The second is the statement of the Collector and it ran as follows:

The Collector states as follows: In this connection the Special Tahsildar has stated that the existing burial ground is situated on the side of a big

drainage channel measuring in width of about 150 feet and is subject to heavy flood in the rainy seasons for 3 months and the Burial ground is not

accessible during the above period. Only on the representation of the Harijans, it was decided to shift the burial ground on western side of the

channel so as to enable the Harijans to make use of the same without any difficulty during rainy season. With this point in view, a pathway was

created parallel to the edge of the channel and a burial ground was newly created at the end of the pathway to an extent of Order 22 cents in R.S.

No. 121/4 and Order 48 cents pathway.

From none of the above materials, it is possible to say that the prosecution of the land acquisition proceedings cannot brook any delay, which

would have been occasioned on account of the conducting of an enquiry u/s 5-A of the Act Nothing has been stated about any urgency. We are

obliged to say that the conclusion reached and the decision taken for invoking urgency powers could not be said to be fair, and reasonable, and

have been reached in an objective manner. One other aspect that, should be taken note of, as pointed out by the learned Counsel for the

petitioners is, the report of the Tahsildar is dt. 26.2.1980 and even taking that date as the date of the initiation of the proceedings to acquire the

lands in question, the notification u/s 4(1) of the Act and the declaration u/s 6 of the Act came to be made simultaneously only on 12.3.1982 and

under these circumstances it cannot be stated, with any bona fides, that the acquisition proceedings cannot brook to go through the normal process

of an enquiry u/s 5-A of the Act, which may approximately consume two or three months, if the authorities take the steps with due diligence and

complete it. The learned single Judge, in our view, even after referring to the above materials pressed into service by the respondents, is not correct

in holding that the urgency powers have been properly invoked. They do not make out any urgency at all. These features oblige us to interfere in

Writ Appeal. Accordingly, this Writ Appeal is allowed; the order of the learned Single Judge in W.P. No. 3495 of 1982 is set aside and that writ

petition will stand allowed. No costs.