Kandikonda Hanumantha Mithra Viswa Prakasha Rao and others vs Land Acquisition Officer, Eluru and others

M.S. Liberhan, CJ

The learned Counsel for the appellants challenged the acquisition proceedings for the public purpose, to wit, for providing irrigation facilities by invoking the urgency provisions u/s 17(4) of the Land Acquisition Act, 1894 hereinafter referred to as "the Act" and dispensing with the enquiry u/s 5-A of the Act, infer alia on the ground that there is no ''public purpose'' since there is an existing canal and the State has not carried out the repair work in the existing canal and therefore, need of providingadditional canal is not a public purpose and that there is no declaration u/s 17 to dispense with the enquiry u/s 5-A and consequently the invocation of urgency provisions and the subsequent'' declaration u/s 6 for taking over possession of the land cannot be sustained.

The learned Counsel for the appellants, in order to butress her submissions relied upon the decision of the Supreme Court in Dora Phalauli Vs. State of Punjab and Others, .

In our considered opinion, merely saying that providing for a canal in the presence of an already existing canal by itself would not be a public purpose if it is the subjective satisfaction of the State unless mala fides are alleged. Public purpose on the face of it has to be assumed and it cannot be said that providing canal is not a public purpose. The Court cannot substitute its own opinion as regards the public purpose nor we have got enough of the material on the record to come to a conclusion that the existence of one canal is by itself, not to provide a parallel water channel.

We may hasten to add that an addition has been made in the Land Acquisition Act by the State of Andhra Pradesh with respect to an urgency provision. It has been provided specifically that when a land is required for irrigation or drainage channel as provided by Section 17(2)(d), the Collector can invoke the urgency provisions and take possession of the land.

Thus we are satisfied, especially in the absence of any mala fides, that providing for irrigation is an urgent matter and the respondent No.2 has objectively satisfied the requirement by rightly dispensing with the provisions u/s 5-A of the Act. The judgment cited by the learned Counsel for the appellants (supra) is related in a case where a declaration was required to be made u/s 17 of the unamcnded Act with respect to waste or arable land in respect ofwhich urgency provision could have been invoked, which is not the position now. In view of the amended provisions of the Act, no such declaration has been envisaged. Thus, the judgment relied on by the [earned Counsel for the appellants has no application to the facts of the present case.

Lastly, a request was made for sympathetic consideration of the matter on the ground that the petitioners-appellants are small land holders and consequently in terms of the State Government instructions, which are enforceable, the land is question cannot be acquired unless alternative land has been provided to the petitioners. No such instructions have been shown to us nor relied upon nor we find any such instructions available. Be that as it is, the State Government''s instructions cannot take away the statutory right vested in the Government to acquire the land. Sympathetic considerations are within the realm of the State power. The petitioners-appellants will be at liberty to make a representation to the authorities concerned for an alternative site by pleading all the facts and circumstances. It is for the State to take an appropriate decision as an ideal administrative agency and do the needful in the matter, if any representation is made.

We find no merit in the appeal. The appeal is dismissed.