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Judgment
Nainar Sundaram, A.C.J.
The appellants in W.A. Nos. 1397, 1398 and 1404 of 1991 and the petitioner in W.P. No. 17086 of 1991 are before this Court, impeaching
the invocation of the urgency powers under S.17(4), dispensing with the enquiry under S.5-A of the Land Acquisition Act 1 of 1894, herein after
referred to as the Act. The appellants in the Writ Appeals did not find their pleas appealing to the learned single Judge, who heard the writ
petitions, preferred by them, and the verdict at the hands of the learned single Judge has gone against them. Before we go into the necessary facts
of the case, we would like to recapitulate and keep in our mind the principles that should govern the Court to examine this question. It is not as if
this question is arising before this Court for the first time. It has arisen often in the pact and opinions have been expressed by this court categorically
over it in the past precedents of this court. In Natesa Asari v. State of Madras AIR 1954 Madras 481:66 L.W. 999, a Bench of this Court
consisting of Rajamannar, C.J., and T.L. Venkatarama Ayyar, J. as he then was, repelled the contentions raised that there was no urgency as
would justify invoking the powers under S.17 and there was no enquiry about such urgency and the Bench opined that whether the urgency exists
or not is a matter solely for the determination of the Government and it is not a matter for a judicial review.
In Nagamalai Colony Formation Association v. The State of Madras ILR (1965) 1, Mad. 741, in considering the scope of the Government''s
satisfaction regarding urgency, a Bench of this Court consisting of a Ramachandra Ayyar, C.J. and Srinivasan, J. found that no objective criterion is
laid down to guide the Government and that the provision does not even use the words like that the Government should be reasonably satisfied as
to the existence of the conditions and taking this into consideration, steps will have to be taken under S.17(4) in case of urgency and the Bench
expressed the view that the opinion as to the existence of an urgency under S.17(4) is to be reached on a subjective approach and hence it would
be inappropriate to judge the question in an objective manner which would lead to conflicting tests being applied by the authority and the Court.
The Bench observed:
Indeed, it may even lead to very inconvenient results if the question of urgency has to be decided finally by the court.
The Bench agreed with the view expressed by the earlier Bench in Natesa Asari v. State of Madras AIR 1954 Madras 481.
In Mohd. Habibullah v. Special Deputy Collector AIR 1967 Madras 118:79 L.W. 469, a Bench of this Court consisting of P. Chandra Reddy,
C.J. and Venkatadri, J., referred to the pronouncement of the earlier Bench in Natesa Asari v. State of Madras AIR 1954 Madras 481 and held
that whether an urgency exists or not is a matter solely for the determination of the Government and that it is not a matter for judicial review.
In Muthu Gounder v. Government of Madras 1968 II MLJ 349:82 L.W. 1, it was opined by a Bench of this Court consisting of K.
Veeraswami, J. as he then was, and T. Ramaprasada, Rao, J. as he then was, that the question of urgency is always for the Government to decide
and will not ordinarily be justiciable. However, in that case, the urgency powers were invoked not at all with reference to a general decision that
wherever house sites have got to be acquired, it should as a matter of course be treated as an urgent case for acquisition and the emergency
provisions invoked. In that context, the Bench took the view that a decision on that question will have to be taken on proper material and in an
objective manner, neither capriciously nor whimsically and in no case the decision should be arbitrary and when the court is called upon to see
whether the power in invoking urgency provisions has been properly exercised, it has necessarily to examine whether the decision to invoke the
provisions was based on materials and was neither arbitrary nor capricious nor mala fide. The Bench observed that if there are facts on which a fair
and reasonable conclusion can be formed, the Court will decline to interfere, though it may take a different view on the question of urgency; but
where the decision is arbitrary as the facts cannot possibly furnish a basis for any conclusion to invoke the urgency provisions, the Court has to
step in and declare the action to be illegal.
In Chinnamma v. State of Tamil Nadu AIR 1986 Madras 55, a Bench of this Court, consisting of Ramanujam and Maheswaran, JJ. opined;.
it cannot be stated as a general proposition that only if the mailer cannot brook a delay of 30 days, urgency provisions can be invoked.......
The invocation of urgency provisions will have to depend upon the circumstances of each case.
The Bench with regard to the question as to whether emergency provisions have beer invoked mechanically or whether it has been invoked after
due application of the mind to the facts and circumstances of the case, perused the files in that case and thereafter this was the opinion expressed
by the Bench;
Thus, the relevant note file produced by the Government clearly indicates that there is no application of the mind on the question of urgency by
anyone. Nor was there any decision taken or order passed on that question. We cannot, therefore, agree with the learned single Judge that there
has been an application of the mind on the question of any urgency and that there is no mechanical application of the emergency provisions. In this
view, it is not necessary to go into the question as to whether the opinion of the Government on the question of invoking the emergency provision is
subject to judicial review or not as that question does not arise in the absence of any opinion. Therefore, the first submission urged by the learned
counsel has to be accepted.
In V. Doraiswami Pillai v. Government of Tamil Nadu AIR 1990 Madras 321, a Bench of this Court, consisting of Dr. A.S. Anand, C.J. and
Sathiadev, J. as he then was, adverted to the case law on the subject and ultimately expressed the view thereon in the following terms:
These decisions go to show that in the absence of any oblique motive the question as to whether the purpose is a public purpose or not, and
whether the urgency provisions could be invoked or not, are not for judicial review. Hence, in the light of these authoritative pronouncements of the
Supreme Court, the decisions relied upon by the learned counsel for petitioner, as referred to earlier, cannot be of any assistance to hold that the
pro-notification delay or the post notification delay by officialdom would always constitute a ground to vitiate the invocation of urgency provisions
under the facts and circumstances of a particular case.
In G. Kasthuri Ammal v. State of Tamil Nadu a Bench of this Court, to which one of us (Nainar Sundaram, J., as he then was), was a party,
touched the proposition in the following terms:
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 under 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 under S.6 of the Act is 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 involving of urgency power to find out
as to whether such invoking of urgency powers has been properly done and not arbitrarily without reference to existence of urgency.
We find that pronouncements even at the level of the other High Court are not lacking. In Kasireddy Pappaiah v. State AIR 1975 Andh. Pra.
269, Chinnappa Reddy, J., as he then was, did not agree with the contention that the delay on the part of the tardy officials to take the further
action in the matter is sufficient to nullify the urgency, which existed at the time of the issue of the Notification and hold that there was never any
urgency. The learned Judge further observed as follows:
Therefore, one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for
Harijans is bad merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in the discharge of
their duties, unless, of course, it can be established that the acquisition itself is made with an oblique motive. The urgent pressures of history are not
to be undone by the inaction of the bureaucracy.
In S.K. Gupta v. Union of India AIR 1977 Delhi 209(F.B.), a Full Bench of the High Court of Delhi expressed the view as follows:
''Urgency'', envisaged by sub-S.(1) of S.17 is subjective. An enhanced degree of subjectivity prevails under sub-S.(4), since it can only be
resorted to if in the opinion of the appropriate Government the provisions of Sub-S.(1) or sub-S.(2) are applicable. But even though the power of
the State Government has been formulated under S. 17(4) in subjective terms the expression of opinion of the State Government can be challenged
as ulna vires in a court of law if it could be shown that the State Government never applied its mind to the matter or that the action of the State
Government is mala fides.
In Bibari Lal v. Union of India AIR 1979 Delhi 84 a Bench of the High Court of Delhi, adverting to the contention built on delay prior to the
issue of the Notification under S.4, opined as follows:
No amount of delay on the part of the Government prior to the issue of the notification under S.4 is relevant. It is only when S.4 notification is
issued that it has to be considered whether compliance with S.5-A should be dispensed with and action under S.17(1) should be taken after
issuing notification under S.6.
The Bench also took note of the earlier pronouncement of the Full Bench in S.K. Gupta Vs. The Union of India and Others, .
In Ram Narain Rai v. State of Uttar Pradesh AIR All 330 , a Bench of the High Court of Allahabad dealt with the proposition in the following
terms:
The question of urgency in the matter of land acquisition is a matter for the subjective satisfaction of the appropriate government and it is not open
to the Courts to examine the propriety of correctness of the satisfaction on an objective consideration of facts. The opinion of the appropriate
Government can only be challenged in a court of law if it can be shown that the Government never applied its mind to the matter or that the action
of the Government is mala fide.
The question, we find, has many times come up for consideration even before the Apex Court in the land and we are bound to refer to the
pronouncements to which our attention has been drawn. In Raja Anand v. State of Uttar Pradesh, as to how far the court could enquire as to
whether there were sufficient grounds or justification of the opinion formed by the State Government under S.17(4), this is what was observed:
It is true that the opinion of the State Government which is a condition for the exercise of the power under S.17(4) of the Act, is subjective and a
court cannot normally enquire whether there were sufficient grounds or justification of the opinion formed by the State Government under S. 17(4).
X X X
But even though the power of the State Government has been formulated under S.17(4) of the Act in subjective terms the expression of opinion of
the State Government can be challenged as ultra vires in a court of law if it could be shown that the State Government never applied its mind to the
matter or that the action of the State Government is mala fide.
In Jage Ram and Others Vs. State of Haryana and Others, , taking up the question of invoking the urgency powers and finding that the facts of
that case bore out that there was urgency, it was observed as follows:
Now coming to the question of urgency, it is clear from the facts set out earlier that there was urgency. The Government of India was pleased to
extend time for the completion of the project upto April 30, 1969. Therefore, urgent steps had to be taken for pushing through the project. The
fact that the State Government or the party concerned was lethargic at an early stage is not very relevant for deciding the question whether on the
date on which the notification was issued, the re was urgency or not. The conclusion of the Government In a given case that there was urgency is
entitled to weight, if not conclusive.
In Narayan v. State of Maharashtra AIR 1977 S.C., the Supreme Court dealt with a case where certain lands were sought to be acquired and
the public purpose indicated in the Notification was the development of area for industrial and residential purposes, and the further factual
assessment of the case ran as follows:
There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was applied at all to the question
whether it was a case necessitating the elimination of the enquiry under S.5-A of the Act. The recitals in the notifications, on the other hand,
indicate that elimination of the enquiry under S. .5-A of the Act was treated as an automatic consequence of the opinion formed on other matters.
The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under S.5-A of the Act. It is certainly a case in
which the recital was atleast defective.
In that context, the Supreme Court did not uphold the invocation of the urgency powers.
In Dora Phalauli Vs. State of Punjab and Others, as to how the urgency powers have got to be invoked is dealt with in the following passage:
It is to be clearly understood that under sub-S.(4), the appropriate Government may direct that the provision of S.5-A shall not apply wherein the
opinion of the State Government, the provisions of sub-S.(1) or sub-S.(2) are applicable otherwise not. For making the provisions of sub-S.(1)
applicable, two things must be satisfied that the land in respect of which the urgency provisions is being applied is waste or arable and secondly
that there is an urgency to proceed in the matter of taking immediate possession and so the right of the owner of the land for filing an objection
under S.5-A should not be made available to him. In the portion of the Notification which we have extracted above, it is neither mentioned that the
land is waste or arable nor has it been stated that in the opinion of the Government, there was any urgency to take recourse to the provisions of
S.17 of the Act. A direction to the Collector has been given to take action under S.17 on the ground of urgency but this is not a legal and complete
fulfilment of the requirement of the law. It is to be remembered that the right of a person having any interest in the property to file an objection
under S.5-A of the Act should not be interfered with in such a casual or cavalier manner as has been done in this case.
It must be noted here that the requirement of the land being waste or arable is no longer thereafter the amendment by Act 68 of 1984.
In State of Punjab and Another Vs. Gurdial Singh and Others, there was a long gap between 1962 and 1977. This aspect was adverted to as
follows in the pronouncement:
Long ago in 1962, a site was chosen for a new grain market and the then Chief Minister, Shri. Kairon, laid the foundation stone and some surviving
poles bear testimony to tins ancient ritual. This spot belonged to a cousin of Shri. Bajwa and was eventually abandoned in favour of the lands of
respondents 1 to 21. This venture of 1971 was shot down by judicial file triggered by the admitted ground of mala fides. Years rolled by but
malice died hard, if egged on by political scramble. So much so, the same lands were again acquired in 1977, dispensing with so much as a
statutory enquiry, undeterred by the earlier decision of the High Court. The respondents again assailed the acquisition as fuelled wholly by
vendetta. The High Court struck down the declaration over again and here we are with an application for leave to appeal against the adverse
order.
On the said facts, the point relating to emergency power was taken up and this is what the Supreme Court observed:
The fourth point about the emergency power is well taken. Without referring to supportive case law it is fundamental that compulsory taking of a
man''s property is a serious matter and smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-
emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where
public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14
(and 19), burke an enquiry under S.17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible
taking, makes a travesty of emergent power.
In Deepak Pahwa and Others Vs. Lt. Governor of Delhi and Others, dealing with the contention that if regard is had to the considerable length
of time spent on interdepartmental discussion before the Notification under S.4(1) was published, it would be apparent that there was no
justification for invoking the urgency Clause under S.17(4) and dispensing with S.5-A, the Supreme Court did not agree with that contention in the
following terms:
We are afraid, we cannot agree with this contention. Very often persons interested in the land proposed to be acquired make various
representations to the concerned authorities against the proposed acquisition. This is bound to result in a multiplicity of enquiries, communications
and discussions leading to delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and
increases the urgency of the necessity for acquisition. It is, therefore, not possible to agree with the submission that mere pre-notification delay
would render the invocation of the urgency provisions void. We, however, wish to say nothing about post-notification delay.
There has been a reference to the earlier pronouncement of the Supreme Court in Jage Ram and Others Vs. State of Haryana and Others, and the
pronouncement of the High Court of Andhra Pradesh in Kasireddy Papaiah (Died) and Others Vs. The Government of Andhra Pradesh and
Others,
The principles countenanced in the pronouncements, referred to above, can be broadly stated as follows: whether urgency exists or not is a
matter solely for the determination of the Government and ordinarily it is not open for judicial review and justiciable. However, the opinion will
have to be formed after application of mind to the problem and not mechanically. The opinion must be based or, relevant facts. The opinion should
not have been formed arbitrarily or capriciously, or with mala fides or with oblique motive. Pre-notification delay or post-notification delay will not
always vitiate the invocation of urgency powers, and the decision in each case will depend on its facts.
In the instant case, urgency powers under S.17(4) dispensing with the enquiry under S.5-A of the Act has been invoked. Though the
Notifications under S.4(1) read with S.17 are many over the same subject mailer of acquisition, their verbalism so far as they indicate the
invocation of urgency powers is similar. For a sample, we are extracting hereunder the relevant portions of one such notifications under S.4(1) of
the Act:
....And, whereas, it has become necessary to acquire the immediate possession of lands specified in the schedule below, the Governor of Tamil
Nadu hereby directs that the lands be acquired under the provisions of the sub-S.(1) of S.17 of the said Act; under sub-S.(4) of S. 17 of the said
Act, the Governor of Tamil Nadu hereby directs that in view of the urgency of the case, the provisions of S.5-A of the said Act, shall not apply to
this case.
The learned single Judge did peruse the papers disclosed before him bringing out the relevant factual features on the question of urgency
preceding the Notifications under S.4(1) of the Act. The learned Single Judge has summed them up in his order. We also considered it worthwhile
to recapitulate the factual features, because it is vehemently contended by the learned counsel appearing for the owners of the land sought to be
acquired that there is no relevant material to make out a case of urgency; it is a case of total non-application of mind to the question the authorities
had been lethargic all throughout earlier and there is no need at all to invoke urgency powers.
On 3.2.1988, the Industries Commissioner and Director of Industries and Commerce, Madras, has addressed a communication to the
Commissioner and Secretary to Government, Industries Department, wherein the constitution of a Committee by the Government for identifying
additional lands adjacent to Manali Industrial complex for allotment to downstream projects by the Government letter dated 10.6.1987 was
adverted to and it was notified that the Committee has identified the land suitable for industrial development in the concerned villages adjacent to
Manali Industries complex to an extent of 1655.02 acres. It has been further stated that the Industries Commissioner and Director of Industries
and Commerce has requested the Collector of Chengalpattu to immediately initiate action to acquire the above area of lands, for industrial purpose
and to examine the need for sanctioning revenue staff required to take up and complete the work expeditiously and forward necessary proposals
to the Government for sanction of the additional staff. There is a reference to a discussion which the Industries Commissioner and Director of
Industries and Commerce had, on the provisions of funds by Madras Refineries Limited (for brevity called M.R.L.).
On 14.3.1988, M.R.L. the major participant of the industrial complex by its letter addressed to the Government, stated since the land is
required at an early date to start the construction work, the Government should appoint a Special Officer for acquisition and there was also a
request to the Government to direct the Special Officer to acquire the lands for M.R.L., invoking the urgency provisions under the Act. The land
plan indicating the lands required in each of the villages and the requisite form of schedule for land acquisition were also enclosed. M.R.L. seemed
to have had a number of discussions on various aspects and on 4.11.1988 it requested for an early action for sanction and appointment of staff to
complete the land acquisition work invoking the urgency Clause. Again on 11.11.1988, M.R.L. informed the Government that the concerned
committee of the Government of India had given first stage clearance for setting up aromatic complex of M.R.L. and also requested for acquiring
the lands for setting up of the industry at an early date. On 11.11.1988, the under secretary to Government addressed the Special Commissioner
and Commissioner for Land Administration requesting him to send necessary proposals for sanction of land acquisition staff for aromatic complex
urgently, taking into consideration the revised proposal of M.R.L. on 24.11.1988, M.R.L. again addressed the Government that the lands were
required by it very urgently and requested the Government to invoke the urgency Clause and it also requested that if possible poramboke lands in
those areas could be handed over to it even earlier than the acquisition of the rest of the lands. Again on 13.12.1988. M.R.L. informed the
Government that as the Government of India and its joint promoter are pressing it to take urgent steps to start work on the project, it requires the
co-operation and permission from the Government to go ahead with the preliminary operations and also requested the Government for expeditious
steps for early completion.
On 24.1.1989, the Collector of Chengalpattu requested the Special Commissioner and Commissioner for Land Administration to recommend
the proposal for according administrative sanction for the acquisition and transfer of the 1655.92 acres of patta and poramboke lands in Manali
and other villages and for the sanction of the special staff asked for. On 16.9.1989, by G.O. Ms. No. 648, the Government accorded
administrative sanction for acquisition and the District Revenue Officer, Chengai Anna District, was requested to send necessary land acquisition
proposals for acquisition of concerned lands under the Act by invoking the urgency Clause immediately.
There after wards, representations objecting to the acquisition have been flowing; in from various interested quarters and persons and we are
told that the said representations exceed 650 and the disposal of these representations was obviously consuming time and we find that the last of
the disposals happened on 7.11.1990. The Notifications under S.4(1) have been issued on different dates from July 1990 to December, 1990.
Here, we would like to advert to the stand expressed by the State on this question, as we could glean from the counter-affidavits filed in this
cases. The learned single Judge has, in his order, made the relevant extracts from the counter-affidavits and they run as follows:
It is submitted that the lands under acquisition are intended for selling up a major industrial aromatic complex and other downstream projects at a
cost of Rs. 1380/- crores in the interest of industrial development of the State and of the public at large. It aims at creation of great employment
potential both for skilled and unskilled in addition to the economic development of the State. In order to establish such an industrial complex early,
it is essential 10 provide all infrastructural facilities such as road, power supply, water, etc., which can be done only on entering upon the land
intended for the establishment of the industries. The Madras Refineries Limited which is one of the major participants in the Industrial Complex
obtained letter of intent for the project and requested the land required for the establishment of the project urgently with reference to the letter of
intent obtained by it. Further, the implementation of the project early would create opportunities for large number of downstream industries with
considerable employment potential. Hence, the Government issued orders in G.O. Ms. No. 648. Industries Department, dated 16.9.1989,
invoking urgency provision......
In this case, the acquisition is for establishment of aromatic complex with downstream industries at an investment of Rs. 1380 crores. This will
provide employment opportunities to a large number of unemployed persons, both skilled and unskilled. All infrastructural facilities such as road,
power supply, water, etc. have to be provided for early selling up of the industries. These can be provided by only ensuring upon the land. Hence,
urgency provision has to be necessarily invoked. The lands involved under acquisition are arable or wastelands. Hence, there is no restriction to
invoke the urgency provisions of the Act for these lands........
The proposed scheme is a major industrial project to be set up at a cost of 1380 crores in the interest of industrial growth of the Slate. The action
of the Government in having decided to have the urgency Clause for acquisition is justifiable. The aim of the Government is to promote employment
potentiality and the consequent economic development in the field of petro chemicals for which the feed stock is readily available in the adjacent
refinery.......
That the aromatic complex to be established is a major project. It requires all infrastructural facilities such as laying of road, power connection,
water supply, etc. to be kept ready for construction of industrial complex and start industry without delay. Further the 30 days time provided in S.
.5-A of the Act is only for the purpose of filing objection by the land owners and not for taking possession of the land. The experience in the past
shows that in a number of cases the landowners have indulged in dilatory tactics thereby delaying the enquiry for a long period. The provision of
infrastructural facilities cannot brook delay as it will lead to escalation of cost and also effect the economic development of the State. Hence, the
contention of the petitioner in this paragraph is untenable.
From the above exposition of the factual features, it is clear that it is not a case of the Government not forming an opinion at all with regard to
the urgency. It is also not a case of the Government not applying its mind to the problem. It is also not a case of the opinion getting formed on no
facts at all. It is also not a case of the opinion getting formed on facts not relevant. It is also not a case of the opinion getting formed motivated by
mala fides or oblique motive. It must be noted that there is no allegation of mala fides at all in the pleadings. It is not possible to characterise the
opinion formed as arbitrary or capricious. There are facts on which a reasonable conclusion can be formed on the question of urgency. The
question as to whether urgency exists or not, being a matter solely for the determination of the Government is not ordinarily open for judicial
review. No judicial precedent either at the level of the Apex Court in the land or at the level of the High Courts in this country has gone to the
extent of saying that the entire gamut of facts must stand exposed in the Notification to demonstrate as to how and why the opinion was formed
and as to whether there was application of mind on the part of the Government to the question of urgency. The application of tests as to whether
an opinion was formed after application of mind or as to whether the opinion was based on facts relevant or it was based on no facts at all or as to
whether the opinion was tainted with mala fides or arbitrariness or capriciousness will come to the forefront, only when allegations to that effect are
raised and the Court is called upon to do that exercise. That exercise can be done with reference to the factual materials exposed before the court
aliunde the declaration made in the Notification. We are convinced that the factual materials exposed in the present cases certainly do not justify
any such allegation and this Court frowning upon the action of invoking urgency powers.
We are also not able to hold that there was any undue and unexplained delay with reference to processing the matter and we only find that
anxiety in this behalf has been expressed and running through, at all times and at all forums and as happened in the case before the Supreme Court
in Deepak Pahwa and Others Vs. Lt. Governor of Delhi and Others, very often persons interested venture to make representations against
acquisition and we will not suggest that they should be forgotten without any consideration by the authorities and certainly time will be consumed
for considering the various representations against the proposed acquisitions, which is bound to result in multiplicity of enquiries, communications
and discussions leading to delay in the execution of even urgent projects.
Another contention raised on the question of invoking urgency powers is that the project is yet to be sanctioned by the Central Government.
Factually it has been shown to us that this statement is not correct. Even otherwise, a Bench of this Court, consisting of Ratnavclpandian, J. as he
then was and M. Srinivasan, J. in VGP Golden Beach Resort Private Limited v. State of Tamil Nadu W.P. No. 12113 of 1988 etc. batch.
Judgment dated 12.2.1988 Since reported in 1991 Writ LR 673:1991-2-L.W. 72 S.N. dealt with a contention that when the acquisition was for
the Tamil Nadu Electricity Board, since the preparation and sanctioning of schemes were yet to be done, the acquisition was in appropriate and the
said contention was repelled in the following terms:
There is no substance in the contention that there should be a valid scheme in existence even before any proceeding under the Land Acquisition
Act is initiated. There is no provision in the Land Acquisition Act laying down a condition precedent that there should be a valid scheme governing
the project for which lands were sought to be acquired.
There was a reference to the following observations of the Supreme Court in Aflatoon and Others Vs. Lt. Governor of Delhi and Others, :
The planned development of Delhi had been decided upon by the Government before 1959, viz. even before the Delhi Development Act came
into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after
that Act came into force, but there was no inhibition of acquiring land for planned development of Delhi under the Act before the Master Plan was
ready (see the decision i Patna Improvement Trust Vs. Smt. Lakshmi Devi and Others,
In W.P. No. 17086 of 1991 Mr. Malini Ganesh, learned counsel for the petitioner, would advance further contentions coveting interference in
writ powers. One such contention is that the acquisition is for company or companies and hence the invocation of urgency powers is totally
incompetent. This contention has come to be built and projected in the following manner: In the affidavit filed by M.R.L. in W.P. No. 1444 of
1991, the following averments are found:
The respondent company had applied to the Central Government for the grant of letter of intent under the provisions of Industries (Development
and Regulation) Act 1956 for the establishment of the Aromatic Project. It may be stated that the respondent company had selected another joint
sector company, namely, M/s Southern Petro Chemicals Corporation Limited (SPIC) as its partner for the a for said Aromatic Project which had
been duly approved by the Government of India.
It is contended that the acquisition is not only for M.R.L., a Corporation owned and controlled by the State, but also for M/s. Southern Petro
Chemicals Corporation Limited (SPIC). Today an affidavit has also been filed enclosing a topo-sketch to say that the allocation of the lands is not
only for M.R.L. but also to other organisations. We must straightway say that we are not able to annex any credence to the topo-sketch, which
does not even stand authenticated by any authority and on verification of the files relating to the case placed before us, we do not find any such
topo-sketch therein. We are further asked to look into the set of expressions ""setting up a aromatic complex and other downstream projects of
M.R.L. occurring in the Notification and the submission is made as to what exactly the other downstream projects are and who is to man them;
either M.R.L. or other company or companies with or without M.R.L. are all left in ambiguity and hence it is not possible to proceed that the
acquisition is for M.R.L., so as to constitute public purpose, so as to attract the provisions of S.17 of the Act.
It would be appropriate if before we examine this argument on facts, we refer to the relevant provisions of the Act after its amendment by
Central Act 68 of 1984. S.3(cc) defines ""Corporation owned or controlled by the state"" in the following terms:
(cc) the expression corporation owned or controlled by the state means any body corporate established by or under a Central, Provincial or State
Act, and includes a Government company as defined in S.617 of the Companies Act, 1956 (1 of 1956) a society registered under the Societies
Registration Act, 1860 (21 of 1860) or under any corresponding law for the time being in force in a state, being a society established or
administered by Government and a cooperative society within the meaning of any law relating to co-operative societies for the time being in force
in any state being a co-operative society in which not less than fifty-one percent of the paid-up share capital is held by the Central Government, or
by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments.
M.R.L. is such a corporation is not in dispute. S.3(c) defines ''company'' as follows:
3(c) the expression ''company'' means-
(1) a company as defined in S.3 of the Companies Act, 1956 (1 of 1956) other than a Government Company referred to in clause (cc);
(ii) a society registered under the Societies Registration Act, 1869 (21 of 1869) or under any corresponding law for the time being in force in a
state, other than a society referred to in clause (cc);
(iii) a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any state, other than a co-
operative society referred to in clause (cc)
Clause 3(f) defining public purpose as it stood prior to the amendment was very brief and it ran as follows:
3(f) the expression ''public purpose'' includes the provision of village sites in districts in which the appropriate Government shall have declared by
notification in the official Gazatte that it is customary for the Government to make such provision.
After amendment, S.3(f) read as follows:
3(f) the expression ''public purpose'' includes-
(i) the provision of village-sites or the extension, planned development or improvement of existing villages-sues;
(ii) the provision of land for town or rural planning;
(iii) the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent
disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned;
(iv) the provision of land for a corporation owned or strolled by the State;
(v) the provision of land for residential purposes to the poor or landless or affected by reason of the implementation of any scheme undertaken by
Government, any local authority or a corporation owned or controlled by the State:
(vi) the provision of land for carrying out any educational, housing, health of slum clearance scheme sponsored by Government or by authority
established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority, or a
society registered under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a slate, or a co-
operative society within the meaning of any law relating co-operative societies for the time being in force in any state;
(vii) the provision of land for any other scheme of development sponsored by Government, or, with the prior approval of the appropriate
Government, by a local authority;
(viii) the provision of any premises or building for locating a public office, but does not include acquisition of land for Companies;
As per clause (iv) of S.3(f), the purpose of a corporation owned or controlled by the State, is a public purpose. As we could see from the
verbalism of the above definition of public purpose, it does not include acquisition of land for companies. S.17 has also undergone a change and
from the purview of S.17(1), the acquisition for the purpose of a company is excluded.
Earlier, S.19 cast an embargo with reference to putting Ss.6 to 37 (both inclusive) in force in order to acquire land for any company unless
with the previous consent of the appropriate Government or unless the company should have executed the requisite agreement. Earlier, S.17 was
not available to acquisition for company until the conditions set forth in S.39 were satisfied. After the amendment, the embargo is confined to Ss. 6
to 16 (both inclusive) and Ss. 18 to 37 (both inclusive). Apparently, the embargo under S.39 is not there for invocation of S.17 for company
purpose. Though there is no embargo specifically expressed with reference to the invocation of S.17 as per amended S.39, yet S.17 itself, as
already noted, has undergone amendment and there the words for a company earlier found therein, have been omitted and the purpose is confined
only to public purpose. The definition of public purpose itself has undergone a change as per the amendment, extracted above and it specifically
excluded/company propose.
It is only in this background of the amended provisions, the submission is advanced that M/s. Southern Petro Chemical Corporation Limited is
also a beneficiary of the acquisition as per the averments put forth in the counter affidavit of M.R.L. in W.P. No. 1444 of 1991 and hence the
invocation of urgency powers is totally without jurisdiction. There is a further grievance expressed, as already noted, that other downstream
projects of M.R.L. are referred to and who is going to be in-charge of those projects is not clear from the Notifications. It is also contended that
under the cover of the acquisition being for M.R.L., a State owned and controlled Corporation, acquisition in substance is being done for
companies and this would amount to colourable exercise of powers.
We are obliged to note that the present contention though has been taken in the affidavit in W.P. No. 17086 of 1991 not in a very choate
manner as argued before us, does not appear to have been thought about and pressed forth in the other matters already dealt with by the learned
single Judge. We do not get any such indication from the order of the leaned single Judge. Further, we find that M.R.L. has not been made a party-
respondent in W.P. No. 17086 of 1991. Prompted to expose the relevant factual materials on this question, M.R.L. has taken out an application
W.M.P. No. 4676 of 1992 to get itself impleaded and we have allowed that application today. In the affidavit, filed in support of the application,
as to who is the beneficiary of the acquisition, this is what has been set forth :
The petitioners submit that as referred to already the Aromatic Project had been conceived, initiated and sponsored by the petitioner company
which is a Government company. The acquisition in question is therefore undoubtedly for a public purpose even within the meaning of S.3(f)(iv) of
the Land Acquisition Act. As referred to already, the letter of intent was issued by the Government of India for the above project only in favour of
the petitioner company which had conceived and initiated the aforesaid project. Further, it is the petitioner company which had requested the
Government for acquiring the lands for their company in respect of the aforesaid project. That apart, the Government of India had also issued
clearance to the petitioner company for incurring an expenditure of Rs. 18 crores towards the initial stages of the project. The petitioners thus
submit that it is the petitioner company which is the acquiring body, which is also evident from the notifications issued by the Government under S.4
of the Land Acquisition Act. In the circumstances, the acquisition proceedings initiated by the Government adopting part 2 of the Act is perfectly
valid as the acquisition in question is undoubtedly for a public purpose within the meaning of the Act.
The petitioners submit that the mere fact that the petitioner company is associating another joint sector company in respect of the project in
question cannot be construed as an acquisition which is not for the petitioner company. To put it in other words, notwithstanding the fact that the
petitioner company is associating another joint sector company in the project in question, the acquisition which had been initiated for the petitioner
company would still continue to be one for the petitioner company and therefore an acquisition for a public purpose within the meaning of the Act.
Further, the petitioners submit that the acquisition in question is one which is paid wholly out of the public revenue as reflected by the declarations
issued by the Government under S.6 of the Land Acquisition Act and in that view also the contention of the petitioners in this regard deserves to be
rejected.
We have also before us copies of the documents reflecting the position that the project is sanctioned only for M.R.L. by the Government of India.
On the materials disclosed, we are not convinced that the acquisition is for a company or companies. The verbalism in the Notification under
S.4(1) does not by itself lead to any such inference. It clearly indicates that the acquisition is for M.R.L. and its downstream projects. The
averments in the counter affidavit, referred to above, only show that there is going to be a collaboration with M/s. Southern Petro Chemicals
Corporation Limited (SPIC). Such an element of collaboration by the beneficiary of the acquisition, which is admittedly a State owned and
controlled Corporation will not take the matter outside the purview of ''public purpose''. We have already noticed that ''public purpose'', as per
S.3(f) (iv) includes provision of land for Corporation, owned or controlled by the State. The beneficiary is only M.R.L. The acquisition being only
for M.R.L. any dealing of collaboration by it with any company, be it so far technical or financial aid, is of no relevance and significance at all to
militate against the acquisition being for a corporation owned or controlled by the State, which will undoubtedly be for a public purpose. If the
purpose is held to be public, certainly S.17 is attracted and urgency powers could be invoked.
In Bharat Singh and Others Vs. State of Haryana and Others, a contention was raised that though the acquisition was under the Haryana
Development Act, 1977, by Haryana Urban Development Authority, Uda, it was for a company, Haryana State Development Corporation. This
contention was repelled by the Supreme Court in the following terms:
Equally untenable is the contention of the appellants that the acquisition is for HSIDC which is a ''company'' within the meaning of S.3(e) of the Act
and, accordingly, the acquisition is invalid for the noncompliance with the provisions of part III of the Act. In the notification under S. 4(1), it has
been clearly stated that the development and industrialisation of the acquired land would be made under the Haryana Development Authority Act,
1977 by HUDA. It is, therefore, manifestly clear that HUDA was the acquiring authority and not HSIDC. It is for HUDA to develop the land fully
either by itself or by any other agency or agencies. HUDA has transferred the land to HSIDC for the purpose of development and allotment to
various persons. It is too much to say that as HUDA has transferred the acquired land to HSIDC, the latter is the acquiring authority. We do not
think that there is any substance in the contention and it is, accordingly, rejected.
We find that the Supreme Court has taken note of the verbalism in the Notification under S.4(1) as indicating the purpose of the acquisition and the
beneficiary of the acquisition. Here also we find that the Notifications under S. 4(1) do not indicate that the acquisition is for a company as such.
Even otherwise, no material convincing to us has been exposed to come to the conclusion that the acquisition is for any company or companies
Before we part with this point, we must record that a line of thinking was expressed by Mr. K. Subramanian, learned Advocate General,
appearing for the State and Mr. R. Krishnamoorthy, learned Senior Counsel appearing for M.R.L. that whenever the compensation for the
acquisition is paid wholly or partly out of the public revenue then it will be a ''public purpose'' and reliance was placed on pronouncements in this
behalf. We have not found it necessary to advert to this aspect because on facts we have come to the conclusion that the acquisition is only for
M.R.L. a State owned and controlled corporation and not for any company or companies.
Mrs. Malini Ganesh, was also advancing another contention by saying that the Notification under S.4(1) suffers from the vice of vagueness.
This is a question which we recently had occasion to advert to in K. Gurusamy v. The Special Tahsildar (Land Acquisition) W.A. No. 52 of 1992,
etc. Batch, Judgment dated 26.2.1992 and there, after adverting to the pronouncements on the subject, we opined that the language of the
notification if sufficiently explicit of the public purpose for which acquisition is being made, there could not be an accusation of the same suffering
from the vice of vagueness. It was held that the law cannot be stated to require any factual thesis over the public purpose getting exposed in the
Notification under S.4(1) and it is sufficient if the public purpose is set forth with adequate definiteness, so that the persons concerned could object
effectively if they so desire.
Coming to the Notification in the present cases, they are more than explicit of the public purpose and there is no ambiguity or vagueness on the
face of the expressions used therein. In Aflatoon and Others Vs. Lt. Governor of Delhi and Others, , while dealing with a case of acquisition of
large area of land comprising of several plots belonging to several persons; this is what was observed in paragraph 8 of the pronouncement:
In the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only
be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify
the particular public purpose for which each and every item of land comprised in the area is needed.
Yet another contention raised by the learned counsel for the petitioner in W.P. No. 17086 of 1991 is that her client is running an industry and there
could not be acquisition of its land for the very same purpose, namely, industrial purpose. Reliance was placed on the pronouncement of the
Supreme Court in Ghaziabad Sheromani Sahkari Avas Samiti Ltd. and another etc. Vs. State of U.P. and others etc., . The facts of the case do
not stand on par with the facts of the present case. We can only construe that pronouncements as having been rendered on the facts of that case
and we are not able to spell out any universal guideline that wherever an acquisition is made for a purpose, it shall be abandoned when the owner
of the land sought to be acquired is also involved in that purpose. Furthermore, we are not able to find out any parity between the industry which
the petitioner is stated to be carrying on with the magnitude of the industrial project that has been thought about for execution by M.R.L. In our
view, this point does not survive for further consideration. Thus, finding no merit in the Writ Appeals and in the Writ Petition, they are dismissed.
We make no order as to costs.