M.K. Jhunjhunwala and Others vs State of Orissa and Others

G.B. Patnaik, J.—The petitioners whose lands have been notified for the purpose of acquisition u/s 4(1) as well as under Sub-sections (1) and (4) of Section 17 of the Land Acquisition Act (hereinafter referred to as the "Act") have approached this Court for quashing of the said two notifications which have been annexed as Annexures 1 and 1/A respectively to the writ application.

The Government in the Revenue Department had issued the notification (Annexure 1) dated 26th of March, 1984, notifying that 3.926 acres of land as described in the schedule was required for a public purpose namely "Development of New Capital in Mouza Laxmisagar" and accordingly the notification u/s 4(1) of the Act had been made. Along with the said notification, Government also in exercise of powers under Sub-sections (1) and (4) of Section 17 of the Act issued another notification on the same date i.e., on 26th March, 1984, directing that the provisions of Section 5A of the Act shall not apply in respect of the lands specified in the schedule of the notification. The petitioners assail the validity of the aforesaid two notifications inter alia on the grounds that (i) the acquisition proceeding is per se bad since the notification u/s 4(1) does not indicate any definite public purpose for which the acquisition is sought to be made; and (ii) the requisite pre-condition for exercise of power under Sub-sections (1) and (4) of Section 17 of the Act being existence of urgency and there being no urgency, the pre-conditions for exercise of the power have not been attracted and, therefore, the notification under Annexure 1/A is liable to be struck down. During the pendency of this writ application. Government issued a declaration u/s 6 of the Act by a notification in the Gazette dated 24th of March, 1987, the Gazette copy of which was produced before us in course of hearing. Mr. Mohanti for the petitioners contends that if the notification under Annexure 1/A is quashed, then a declaration u/s 6 of the Act cannot be legally made without complying with Section 5A of the Act and there being admittedly no compliance of Section 5A, the declaration made u/s 6 of the Act as well as all subsequent proceedings must be held to be invalid, inoperative and accordingly must be quashed.

The learned Additional Government Advocate in reply to the aforesaid submissions of Mr. Mohanti for the petitioners contends that where a big area of land is acquired for a public purpose and the purpose is as stated in the notification for development of the New Capital, there is no vagueness in the same and, therefore, the notification u/s 4(1) does not suffer from any ambiguity or vagueness. So far as urgency of notification is concerned, according to the learned Additional Government Advocate, the question of urgency is not justiciable and Government having applied its mind and having formed the requisite opinion with regard to urgency bona fide, the same cannot be challenged in an application under Article 226 of the Constitution. According to him, urgency of an acquisition under Sections 17 (1) & (4) is a matter of subjective satisfaction of the Government and it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In that view of the matter, the notification u/s 17 (1) and (4) of the Act cannot be said to be invalid. So far as the declaration made u/s 6 is concerned, the learned Additional Government Advocate contends that there has been some time-gap between the notification u/s 4(1) and the declaration u/s 6, but that by itself will not invalidate the declaration made u/s 6 particularly when the grounds and circumstances for such delay have already been indicated in the affidavit filed by the opposite parties.

In order to appreciate the correctness of the rival submissions, some admitted facts may be noted. The Government issued the notification u/s 4(1) on 26-3-1984 and the purpose of acquisition is "Development of New Capital in mouza Laxmisagar". On the very same day another notification was issued u/s 17 (1) and (4) of the Act excluding the operation of Section 5A of the Act to the acquisition proceeding. The Government made the declaration u/s 6 by a notification in the Gazette dated 24th of March, 1987, and then issued notice u/s 4(2) authorising the Amin of the B.D.A. to enter into the land for the purpose of valuation of structure and enumeration of trees standing on the land on 22-7-1987. At that stage the petitioner filed an application for stay of further proceedings of acquisition and by order dated 28-7-1987 this Court had stayed the further action. The Land Acquisition (Amendment) Act, 1984 (Act 63 of 1984) came into force with effect from 24th September, 1984, and the writ petition was filed by the petitioner on 25-10-1984. In the aforesaid premises, we would now examine the rival submissions made by the counsel for parties.

So far as the validity of the notification u/s 4(1) of the Act is concerned, according to Mr. Mohanti the purpose indicated in the said notification being vague and no definite indication or particular of purpose having been given to enable the person concerned to object to the same effectively, the notification in Annexure 1 is bad in law. In support of the aforesaid contention reliance has been placed on the decision of the Supreme Court in the case of Munshi Singh and Others Vs. Union of India (UOI), . In the aforesaid case, the notification issued u/s 4(1) only stated that the land mentioned in the schedule was likely to be needed for a public purpose and then as to what was the purpose, it was indicated "for planned development of the area". This notification was considered by the Supreme Court and it was held (at P. 1154):

"........ If the public purpose stated in Section 4(1) is planned development of the area without anything more it is extremely difficult to comprehend how all the matters set out in Sub-section (2) can be carried out by the officer specially authorised in this behalf and by his servants and workmen."

It was further stated that there was no indication whatsoever in the notification as to whether the development was to be of residential and building sites or of commercial and industrial plots nor was it possible for any one interested in the land sought to be acquired to find out what sort of planned development was under contemplation. Even the Master Plan itself was not available for inspection by the person interested in filing objection. Their Lordships also observed (at p. 1156):-

"......... We would accordingly hold that owing to the vagueness and indefiniteness of the public purpose stated in the notifications u/s 4(1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area in question the appellants were wholly unable to object effectively and exercise their right u/s 5A of the Acquisition Act."

On these findings, the notification and the, acquisition proceeding had been quashed. Therefore, the main reason why the notification u/s 4(1) was held to be invalid is that the persons concerned did not have as opportunity of putting-forth their objection u/s 5A of the Act on account of lack of particulars. In the present case, Section 5A has been held to be inapplicable by the notification issued u/s 17 (1) and (4) of the Act. That apart, the question whether a particular notification issued u/s 4(1) of the Act can be held to be vague depends upon the facts and circumstances of the case. In the case of Aflatoon v. Lt. Governor of Delhi, AIR 1974 SC 2077, the notification stating that an area of 34.070 acres of land was needed for a public purpose such as the planned development of Delhi, was held to be a valid notification and the petitioners were held not to be prejudiced in any manner. In the said case, the earlier decision of the Supreme Court in Munshi Singh''s case on which Mr. Mohanti for the petitioners relies has also been noticed. It was observed by their Lordships in the aforesaid case (Paras 6 and 8):-

".....We think that the question whether the purpose specified in a notification u/s 4 is sufficient to enable an objection to be filed u/s 5A would depend upon the facts and circumstances of each case.

........ 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."

After coming to the aforesaid conclusion, it was held by their Lordships that the notification did not suffer from vagueness. Applying the ratio of the aforesaid case, as well as Section 5A having been made in applicable by virtue of notification under Sub-sections (1) and (4) of Section 17 of the Act, we do not find any substance in the argument of Mr. Mohanti for the petitioners that the notification u/s 4(1) is liable to be quashed on account of vagueness and accordingly the first contention of Mr. Mohanti is rejected.

Coming now to the second contention which relates to existence of urgency, Mr. Mohanti for the petitioners submits that even though urgency envisaged u/s 17(1) of the Act may be a subjective satisfaction, but the opinion of the State Government can be challenged in a Court of law to be ultra vires if it can be shown that the State never applied its mind to the matter or that the action of the State Government is mala fide.

The only purpose of Section 17(4) being to dispense with Section 5A and Section 5A being a provision affording an opportunity to the person concerned to file objection within thirty days of the notification, in order to invoke the urgency clause, urgency must be such which cannot brooke a delay of thirty days. In that view of the matter, so far as the present case is concerned, the notification u/s 17 (1) and (4) having been issued on 26th of March, 1984 and the declaration u/s 6 having been made on 24-3-1987, itself is sufficient to indicate that the State Government never applied its mind to the existence of urgency while issuing notification u/s 17(4) and, therefore, the notification must be set aside. In support of the aforesaid contention, Mr. Mohanti placed reliance on the Bench decision of this Court in the case of Bairagi Nayak v. State of Orissa, (1969) 35 Cut LT 1067; a decision of the Supreme Court in the case of Raja Anand v. State of U.P., AIR 1967 SC 1081; a decision of the Bombay High Court in the case of Sadruddin Suleman Jhaveri Vs. J.H. Patwardhan and Others, and another Bench decision of this Court in the case of Kabira Padhi v. State of Orissa 1LR (1975) CuT 125.

In Baikunthanath Pratihari Vs. State of Orissa and Others, a Bench of this Court held : --

"........There is no doubt in our mind that the requirements provided u/s 17(1) of that Act are the requisite conditions, upon the existence of which exercise of jurisdiction u/s 17(1) is founded. Once any of the requisite conditions is missing, the special and extraordinary jurisdiction provided under the Statute in Section 17 cannot be called in aid. ...........If the special and extraordinary power is meant to inhere in the prescribed authority only in case of urgency, it follows that the existence of urgency is the condition precedent......... If urgency cannot be found to have existed at the time when the notification was made, the notification was without authority of law and can, therefore, not be protected u/s 17(4) of the Act."

The aforesaid Bench decision of this Court relied upon the decisions of the Bombay High Court in Saclruddin Suleman''s case, AIR 1965 Bom 224 and of Kerala High Court in the case of Seshagiri v. Spl. Tehsildar for Land Acquisition, AIR 1965 Kerala 92, as well as the decision of the Supreme Court in Raja Anand''s case, AIR 1967 SC 1081.

In the latter Bench decision in Kabira Padhi''s case, ILR (1975) Cuttack 125, their Lordships held : --

"Upon the existence of the requisite conditions as prescribed u/s 17(1) of the Act a notification u/s 17(4) of the Act is only justified. Once the requisite conditions are missing, the special and extraordinary jurisdiction provided in the Act cannot be invoked. Where the urgency required u/s 17(1) of the Act cannot be found to be existing when a notification u/s 17(4) of the Act is made, the notification must be held to be without the authority of law."

(quoted from the headnote)

In the aforesaid case, since there was gap of time for more than three years between the notification u/s 17(4) and the notification u/s 6(1), the Court held that there was no urgency entitling the Government to invoke the jurisdiction u/s 17 (1) and (4) of the Act. The aforesaid decisions have full application to the facts and circumstances of the present case, where the notification invoking the urgency clause was made on 26th of March, 1984, but the declaration u/s 6 was made only on 24-3-1987 nearly three years after.

The learned Additional Government Advocate contends that delay in the process of acquisition does not ipso facto render the urgency notification invalid and in support of the same strongly relies upon the decision of the Supreme Court in the case of Deepak Pahwa v. Lt. Governor, of Delhi, AIR 1984 SC 1721. The learned Additional Government Advocate placed before us the observations of the Supreme Court made in paragraph 8 of the judgment in support of his contention, which may be extracted hereunder : --

"The other ground of attack is that if regard is had to the considerable length of time spent on interdepartmental discussion before the notification u/s 4(1) was published, it would be apparent that there was no justification for invoking the urgency clause u/s 17(4) and dispensing with the enquiry u/s 5A. 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.

In our considered opinion, the aforesaid observations made by the Supreme Court in relation to the pre-notification delay will have absolutely no application to the facts and circumstances of the present case. In that case, the ground of attack to the notification u/s 17 (1) and (4) was that before issuance of the notification under the said section, the matter was under interdepartmental discussions and more than eight years elapsed and, therefore, there was no urgency necessitating the invocation of Section 17(4). That contention was repelled and it was held that merely because considerable time elapsed before issuance of notification, that did not ipso facto make the urgency non-existent. It is quite apparent from the very observations made by their Lordships in the said paragraph 8 to the effect, "We however wish to say nothing about post-notification delay."

The learned Additional Government Advocate further relies upon the decision of the Supreme Court in the case of State of U.P. Vs. Smt. Pista Devi and Others, . In the aforesaid case, the High Court had set aside the notification and the declaration dispensing with the compliance of Section 5A of the Act on the ground that there had been delay of one year between the date of notification u/s 4 and the date of declaration made u/s 6. The Supreme Court, however, observed (at Pp. 2027-28):-

"....... It is seen from the record before us that after the publication of the notification u/s 4(1) of the Act, the Collector after going through it found that there were some errors in the notification which needed to be corrected by issuing a corrigendum. Accordingly, he wrote a letter to the State Government on 25-8-1980 pointing out the errors and requesting the State Government to publish a corrigendum immediately. Both the corrigendum and the declaration u/s 6 of the Act were issued on May 1, 1981. It is on account of some error on the part of the officials who were entrusted with the duty of processing of the case at the level of the Secretariat there was a delay of nearly one year between the publicly in of the notification u/s 4(1) and the publication of the declaration u/s 6 of the Act. ......."

It is in the aforesaid context, their Lordships of the Supreme Court observed (at p. 20281 :-

"....... In the circumstances of the case it cannot be said that the decision of the State Government in resorting to Section 17(1) of the Act was unwarranted. The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke Section 17(1) of the Act and to dispense with the compliance with Section 5A of the Act. ........"

In our considered opinion, the ratio of the aforesaid case cannot have any application to the facts of the present case. No justifiable explanation has been offered in the counter-affidavit of the State indicating the delay of about three years between the notification u/s 17(4) and the declaration u/s 6 of the Act. Following the earlier Bench decisions of this Court, referred to earlier, and rejecting the submission of the learned Additional Government Advocate, on the materials on record, we are not satisfied that there existed any urgency which! warranted the notification u/s 17(4) of the Act and accordingly, the notification in Annexure 1/A must be quashed and we quash the same.

The next question for consideration is whether the notification u/s 4(1) of the Act, annexed as Annexure 1, can be permitted to be sustained in view of the amended provisions of the Act. A notification u/s 4 of the Act is the starting point of an acquisition proceeding and is merely an introductory measure. It does not affect the rights of the parties nor any interest in favour of the Government arises from a notification u/s 4. The main object of issuing a notification u/s 4 is to make it known to the public that the land is going to be acquired for some public purpose and to prevent the person concerned whose land is being acquired from profiting by inflating the valuation of the land. Such a notification serves a two-fold purpose (i) enabling the Government to find out whether the land sought to be acquired was adopted for the purpose for which the acquisition was sought to be made and (ii) enabling the person interested to place his view-points with regard to the proposed acquisition. In other words, it is a warning to all persons interested in the land notified that the same may be ultimately acquired by issuing a declaration u/s 6, so that the persons interested may file objections against the acquisition. It is, therefore, when a declaration u/s 6(1) of the Act is made to the effect that the land is required for a public purpose that the acquisition becomes conclusive. Even prior to the Amendment Act of 1984, in view of the first proviso to Section 6(1), which was introduced by the Land Acquisition (Amendment and Validation) Ordinance, 1967, a declaration u/s 6(1) could not be made after expiry of three years from the date of publication of the notification u/s 4(h). The said proviso was substituted by the Amending Act of 1984 and the substituted provision is extracted hereunder : --

"Provided that no declaration in respect of any particular land covered by a notification u/s 4, Sub-section (1),--

(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, but before the Commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification, or

(ii) published after the Commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification."

The Explanation which was inserted relates to, computation of the period referred to in the first proviso. By virtue of the said Explanation, the period during which any action or proceeding to be taken in pursuance of the notification issued u/s 4, Sub-section (1) is stayed by an order of a Court, is required to be excluded. Explanation I which is relevant for our purpose is extracted hereunder in extenso : --

"In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued u/s 4, Sub-section (1), is stayed by an order of a Court shall be excluded."

In view of the aforesaid amended provisions of the Act and Section 4(1) notification in this case having been made prior to the Land Acquisition (Amendment) Act, 1984, but subsequent to the Land Acquisition (Amendment and Validation) Ordinance, 1967, no declaration u/s 6(1) is permissible after expiry of three years from 26-3-1984, i.e. after 26-3-1987. In the present case, however, the notification u/s 6 has been made within that period namely on 24-3-1987. But that notification had been issued without going through the procedure provided u/s 5A because of exclusion of the said provision under the notification (Annexure 1/A) issued u/s 17 (1) and (4) of the Act. We have already held the said notification in Annexure 1/A to be bad and have quashed the same. Therefore, the declaration made u/s 6(1) without going through the procedure provided u/s 5A cannot be sustained and accordingly must be quashed. Normally, it would have been open for the State Government to follow the procedure provided u/s 5A and then make a declaration u/s 6(1) of the Act, but the amended provision of Section 6(1) as it now stands, would make it incompetent for the Stale to make such a declaration since the notification in Section 4(1) was made as early as on 26-3-1984. Even the Explanation to Section 6(1) will not be of any assistance, since the stay order that was passed by this Court was on 28-7-1987 which is more than three years after the notification issued u/s 4(1) of the Act on 26-3-1984. This being the position of law, the notification issued u/s 4(1) also has to be quashed and accordingly, we quash the same.

In the net result, therefore, both the notifications u/s 4(1) and Section 17 (1) and (4) of the Act, annexed as Annexures 1 and 1/A as well as the subsequent notification issued u/s 6 of the Act and the entire acquisition proceeding are hereby quashed. We would, however, make it clear that the Government would be free in starting afresh an acquisition proceeding if the purpose for which the land was sought to be acquired and the need for which the land was so acquired still exist.

The writ application is accordingly allowed, but in the circumstances, without any order as to costs.

K.P. Mohapatra, J.

I agree.