Nirmala Devi & Another vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

The application, seeking condonation of delay, is not opposed by the learned counsel for the respondents, and the delay is, therefore, condoned.

Heard Sri Vikas Bahuguna, learned counsel for the appellants-writ petitioners and Ms. Pooja Banga, learned Brief Holder for the State Government.

This appeal is preferred by the appellants (petitioners in Writ Petition (M/S) No. 1628 of 2013) aggrieved by the order of the Learned Single Judge dated 04.10.2018 dismissing the Writ Petition, and vacating the stay order passed earlier on 26.08.2013. The jurisdiction of this Court was invoked by the appellants-writ petitioners herein seeking a writ of certiorari to quash the notification dated 20.06.2013, purportedly issued under Section 6 (1) r/w Section 17 (4) of the Land Acquisition Act, 1894; a writ of certiorari to quash the notification issued under Section 4 (1) of the Land Acquisition Act dated 06.12.2012; a writ of mandamus commanding the second respondent (Collector cum Land Acquisition Officer, Dehradun) to hear the petitioners objections under Section 5-A of the Land Acquisition Act, 1894, to prepare its report, and send it for the decision of the appropriate Government; and a writ of mandamus commanding the first respondent to decide the objections, under Section 5-A of the Land Acquisition Act, 1894, in accordance with law.

Facts, to the limited extent necessary, are that the appellants herein are the owners of various extents of land in different khasra numbers of Village Ajabpur Kalan, Pargana Parwadoon, Tehsil Sadar, District Dehradun. A notification was issued by the State Government, under Section 4 (1) of the Land Acquisition Act, 1894, on 06.12.2012 proposing to acquire the appellants-writ petitioners lands for the purpose of construction of a link road from Deep Nagar to Haridwar Bypass Road, Dehradun. The notification dated 06.12.2012 itself records that, under Section 4 (1) of the Act, the Government was pleased to notify, for general information, that the lands mentioned in the schedule were needed for a public purpose namely, for construction of a Link Road from Deep Nagar to Haridwar Bypass Road in District Dehradun; and under Section 5-A of the said Act, any person interested in the land may, within thirty days after the publication of notification, make objections to the acquisition of land, or of any land in the locality, in writing to the Collector Dehradun. The appellants-writ petitioners filed their objections on 27.12.2012 contending, among others, that just behind the back of the acquired land, were lands belonging to Sri Subardhan Shah.

Sri Vikas Bahuguna, learned counsel for the appellants-writ petitioners, has taken us through the order passed by the second respondent in reply to the objections received from the land owners under Section 5-A of the Act. This specific objection of land being acquired for extraneous reasons, and to benefit Sri Subardhan Shah and the Construction Engineer, has not been dealt with in the order passed under Section 5-A of the Act.

Sri Vikas Bahuguna, learned counsel for the appellants-writ petitioners, would submit that Sri Subardhan Shah was then the Commissioner, Garhwal Division, and he along with one of the Engineers of the Construction Division, owned lands ad-measuring 30 bigas besides the lands proposed to be acquired; and the subject lands were sought to be acquired for the purpose of a Link Road only to extend them undue benefit. While the appellants-writ petitioners' claim that their objections were not considered, the fact remains that the objections of their co-owners were considered. However this specific objection, of lands sought to be acquired for extraneous reasons, was not dealt with in the order passed by the second respondent, under Section 5-A of the Act, on 17.04.2013. Curiously the Section 6 declaration, notified on 12.06.2013, states that the notification dated 05.12.2012 (which was published on 06.12.2012) was issued under Section 4 (1) r/w Section 17 (4) of the Land Acquisition Act, 1894, even though the Section 4 (1) notification published on 06.12.2012 makes no reference to Section 17 (4) of the Land Acquisition Act. On the contrary, the said Section 4 (1) notification dated 06.12.2012 specifically states that objections were invited from the persons interested in the land under Section 5-A of the Act.

Sri Vikas Bahuguna, learned counsel for the appellants-writ petitioners, would submit that the urgency clause, under Section 17 (4) of the Act was invoked, along with the Section 6 declaration, on 12.06.2013 more than six months after the Section 4 (1) notification was issued on 06.12.2012, only to overcome the failure of the authorities to deal with the appellants-writ petitioners specific objections, under Section 5-A of the Act, that the subject land was being acquired only to benefit Sri Subardhan Shah (the then Commissioner, Garhwal Division), and one Construction Engineer of the Department.

Section 17 (4) of the Land Acquisition Act stipulates that in the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply; and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4(1) of the Act. Invocation of the urgency clause, under Section 17 (4) of the Act, would enable the State Government to dispense with the Section 5-A inquiry.

As noted hereinabove, in the present case, the urgency clause, under Section 17 (4) of the Act, was invoked not along with the notification issued under Section 4 (1) of the Act dated 06.12.2012, but along with the Section 6 declaration notified on 12.06.2013 more than six months after the Section 4(1) notification was issued, after objections were submitted by the appellants-writ petitioners on 27.12.2012, and after orders were passed on the appellants-writ petitioners' objections on 17.04.2013.

The counter affidavit, filed by the respondents in the writ petition, is silent as to why the State Government chose to invoke the urgency clause, under Section 17 (4) of the Act, six months after the notification under Section 4 (1) of the Act was issued, and after the objections of the land owners was considered under Section 5-A of the Act. It does appear that, failure on the part of the respondents to deal with this specific contention of the appellants-writ petitioners that the acquisition was resorted only to benefit Sri Subardhan Shah and the Construction Engineer (this specific allegation has not even been denied in the counter affidavit), was the reason for invoking the urgency clause under Section 17 (4) of the Act. Failure on the part of the respondents, to deal with this specific objection in their counter affidavit, does lend credence to the submission of Sri Vikas Bahuguna, learned counsel for the appellants-writ petitioners, that the urgency clause, under Section 17 (4) of the Act, was invoked, six months after the notification issued under Section 4 (1) of the Act, only to avoid dealing with these inconvenient objections raised by the appellants-writ petitioners under Section 5-A of the Act.

Section 5-A confers a valuable right on the land owner. When the Government proceeds for compulsory acquisition of a particular property for a public purpose, the only right that the owner, or the person interested in the property, has, is to submit his objections within the prescribed time under Section 5-A of the Act, and persuade the State authorities to drop acquisition of that particular land by setting forth the reasons such as the unsuitability of the land for the stated public purpose, the grave hardship that may be caused to him by such expropriation, availability of alternative land for achieving the public purpose etc. Moreover the right conferred on the owner, or the person interested to file objections to the proposed acquisition, is not only an important and valuable right, but also makes the provision for compulsory acquisition just and in conformity with the fundamental principles of natural justice. (Ram Dhari Jindal Memorial Trust Vs. Union of India and others: (2012) 11 SCC 370; Anand Singh and another Vs. State of Uttar Pradesh and others: (2010) 11 SCC 242; Raja Anand Brahma Shah Vs. State of U.P: AIR 1967 SC 1081; Jage Ram Vs. State of Haryana: (1971) 3 SCR 871; Narayan Govind Gavate Vs. State of Maharashtra: (1977) 1 SCC 133; State of Punjab vs. Gurdial Singh: (1980) 2 SCC 471; Deepak Pahwa Vs. Lt. Governor of Delhi: (1984) 4 SCC 308; State of U.P. Vs. Pista Devi (1986) 4 SCC 251; Rajasthan Housing Board Vs. Shri Kishan: (1993) 2 SCC 84; Chameli Singh Vs. State of U.P: (1996) 2 SCC 549; Meerut Development Authority Vs. Satbir Singh: (1996) 11 SCC 462; Om Prakash Vs. State of U.P: (1998) 6 SCC 1; Union of India Vs. Mukesh Hans: (2004) 8 SCC 14; Hindustan Petroleum Corpn. Ltd. Vs. Darius Shapur Chenai: (2005) 7 SCC 627; Mahadevappa Lachappa Kinagi Vs. State of Karnataka: (2008) 12 SCC 418; Babu Ram Vs. State of Haryana (2009) 10 SCC 115 and; Tika Ram Vs. State of U.P: (2009) 10 SCC 689).

The urgency clause, under Section 17 (4) of the Act, is invoked only in case of grave urgency. No explanation is forthcoming, from the respondents, as to why they thought it necessary to invoke the urgency clause under Section 17 (4), along with the Section 6 declaration, on 12.06.2013 more than six months after the Section 4 (1) notification was issued on 06.12.2012. The reference, in the Section 6 declaration dated 12.06.2013, to the fact that the urgency clause under Section 17 (4) of the Act was invoked along with the Section 4 (1) notification, is belied on a bare reading of the Section 4 (1) notification dated 06.12.2012 which makes no reference to the urgency clause, under Section 17 (4) of the Act, having been invoked. On the contrary, the said Section 4 (1) notification dated 06.12.2012 specifically invites objections, from the persons interested in the land, under Section 5-A of the Act.

In the order under appeal, the learned Single Judge has not dealt with these issues. On the contrary, the learned Single Judge has observed that, while the objections were considered, the names of the appellants-writ petitioners could not be transcribed therein; and failure to transcribe their names would not mean that their objections were not considered.

We are satisfied, therefore, that the declaration under Section 6, along with invocation of the urgency clause under Section 17 (4), vide proceedings dated 12.06.2013 must be set-aside. The appellants-writ petitioners' objections under Section 5-A of the Act shall be dealt with afresh, by the second respondent, in accordance with law.

Ms. Pooja Banga, learned Brief Holder appearing on behalf of the State, would submit that, since an interim order was passed by this Court on 26.08.2013 which continued to remain in force till the writ petition was disposed of by order dated 04.10.2018, exclusion of this period would still enable the authorities to consider the objections under Section 5-A, and to issue the Section 6 declaration, since the time stipulated, under Section 11 (A) of the Land Acquisition Act, 1894 and its proviso, would require the period, during which the stay granted by the High Court remained in force, to be excluded in computing the period for a declaration to be issued under Section 6 of the Act.

On the other hand Sri Vikas Bahuguna, learned counsel for the appellants-writ petitioners, would submit that, in terms of Section 24 (1) (a) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (the "2013 Act" for short), since no award has been passed before 01.01.2014, the entire proceedings initiated under the Land Acquisition Act, 1894, would lapse; and the respondents have no other alternative except to initiate land acquisition proceedings afresh in terms of Section 11 (1) of the 2013 Act.

As this writ petition was instituted in the year 2013, before the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 Act came into force on 01.01.2014, this specific contention has not been raised in the Writ Petition. We see no reason, therefore, to examine this contention in the present proceedings. Suffice it to leave it open to the appellants-writ petitioners to raise this additional objection, in proceedings under Section 5-A of the Land Acquisition Act, 1894, and to contend before the second respondent that the land acquisition proceedings, initiated pursuant to the Section 4 (1) notification dated 06.12.2012, has lapsed in its entirety.

The Special Appeal stands disposed of accordingly.

No costs.