Prakash vs State of Kerala

Antony Dominic, J.—Issue raised being identical, these Writ Petitions were heard together and are disposed of by this common judgment.

For convenience, I shall be referring to the facts pleaded in W.P.(C) No. 11499/09.

The petitioner owns 40 cents of land in Sy. No. 1440 of Kadakampally Village of Thiruvananthapuram Taluk. Referring to letter dated 19.3.2008 from the Project Director of KSUDP, Ist respondent issued Ext.R1(a)order dated 24.4.2008, permitting acquisition of the lands mentioned therein for the purpose of establishing a waste treatment plant. In so far as it is relevant for these cases, the property in Sy. No. 1440 of Kadakampally Village is also included in Ext.R1(a)order. Subsequently, Ext.P1 Government order was issued on 30.10.2008 permitting acquisition of the properties mentioned therein invoking the urgency clause contained in Section 17 of the Land Acquisition Act (hereinafter referred to as ''the Act'' for short). In this order, as against the property in Sy. No. 1440 mentioned in Ext.R1 (a) referred to above, the property included was those situated in Sy. No. 1410. Subsequently, notification u/s 4(1) of the Act was published on 5.3.2009 and 7.3.2009, copies of which are Exts. P2 and P3. In these notifications, property included is that situated in Sy. No. 1440 and this notification also provided that the enquiry u/s 5A is dispensed with invoking powers of the Government u/s 17(4) of the Act. It was in these circumstances, this Writ Petition was filed challenging Exts.P2 and P3 notifications in so far as it includes property in Survey No. 1440 and contending that there was no justification to invoke the urgency clause and dispensing with the enquiry u/s 5A. It is also contended that property originally proposed for acquisition was the one in Sy. No. 1410 whereas in Exts.P2 and P3 notifications u/s 4(1) of the Act, the property notified for acquisition is the property in Sy. No. 1440.

The 3rd respondent entered appearance and filed its counter affidavit producing order dated 22.1.2009 issued by the 1st respondent correcting the survey number as 1440. It was thereupon that the Writ Petition was amended incorporating a challenge against the order dated 22.1.2009 by producing the same as Ext.P4.

I heard the learned senior counsel appearing for the Corporation, who made reference to the statement filed and argued in support of the acquisition proceedings.

Counter affidavit and an additional counter affidavit have been filed by the 3rd respondent. It was stated that the Government sanctioned land acquisition under the fast track method vide Government order dated 27.5.2008 and that in the said order, survey number 1410 happened to be mentioned on account of a bonafide clerical mistake. It is stated that, later, at the request of the Project Director, KSUDP, survey number was corrected as 1440 by Ext.P4 order. It is also stated that the sites was identified by the officials of the Kerala Water Authority, which is the implementing agency of Sewerage Project of Thiruvananthapuram Corporation under JNNURM and the identified land in Survey No. 1440 is the most suitable and ideal location with minimum cost of acquisition. It is also stated that the sketch which was produced at the initial stage of the acquisition proceedings itself will show that land in Sy. No. 1440 was the intended property and not the property situated in Sy. No. 1410. Third respondent has also produced Ext.R1(b), R1 (b1) and R1(c) in support of these contentions. It is further stated that the property in Sy. No. 1410 is far away from the proposed project site and cannot be used for the project without acquiring huge and vast extent of properties lying in between the property in survey number 1410 and remaining properties to be acquired, which is practically impossible and that if the property in Sy. No. 1410 is acquired, large number of owners of the properties will have to be dispossessed and that the property cannot be used for the purpose at all.

In so far as the invocation of the powers u/s 17 and the decision to dispense with enquiry u/s 5A of the Act are concerned, it is stated that the Government of India had launched JNNURM for planned development of key cities in the country during December, 2007 for a period of 7 years and that out of the 63 cities selected. Thiruvananthapuram and Cochin are the two cities from Kerala State. It is stated that one of the approved projects under JNNURM for Thiruvananthapuram Corporation is the improvement of the Sewerage system of Corporation and adjoining Panchayats for Rs. 21,541 lakhs of which 80% is Central Government share, 10% is State Government share and 10% is Urban Local Body share. It is stated that for the implementation of this scheme, 11 pump houses are required at various points of the city to collect and pump the sewerage to a modern sewerage treatment plant under construction at Valiyathura. According to the respondents, the site mentioned in the petition is for one of the 11 pump houses proposed at Edathara, which is intended to collect the entire sewerage from the areas of Anamugham, Cheruvaykkal, Akkulam, Ulloor and Pongummoodu of Trivandrum Corporation. It is stated that if the work could not be started and completed with the time frame, the financial help from Central Government "may loose" and that if that be so, the project itself will be lost.

Counsel for the petitioner contended that correction of the survey number is illegal. He also impugned the decision of the respondents in dispensing with the enquiry u/s 5A of the Act relying on the Apex Court judgments in Union of India v. Mukesh Hans 2004 (3) KLT 462 (SC), Union of India (UOI) and Others Vs. Krishan Lal Arneja and Others, and Essco Fabs Pvt. Ltd. and Another Vs. State of Haryana and Another, . On the other hand, learned Government Pleader reiterated the contentions in the counter affidavits, made available the files and relied on the Apex Court judgment in First Land Acquisition Collector and Others Vs. Nirodhi Prakash Gangoli and Another, .

The first issue to be resolved is the one regarding correction of survey number from 1410 to 1440. The note submitted by the KSUDP on 19.3.2008 and the Government Order dated 24.4.2008, show that land in Kadakampally Village, which was proposed to be acquired is in Sy. No. 1440. It was subsequently that the Government Order was issued on 27.5.2008, in which the Survey number was 1410. This according to the respondents, was due to a bonafide clerical mistake. The facts and the pleadings in the Writ Petition do not show any deliberate action taken by any of the authorities to change the survey number of the property from 1440 to 1410. Further, respondents have also explained the lie, location and the suitability of the property in Survey No. 1440, which also reinforces their plea that what was identified was the land in Sy. No. 1440. In the light of the explanation offered by the respondents, the contention that Sy. No. 14 10 came to be mentioned in the Government Order dated 27.5.2008 by way of a bonafide clerical mistake deserves to be accepted. It was therefore that the Government issued revised Government Orders on 30.10.2008 and 22.1.2009 changing the survey number into Sy. No. 1440 as against 1410 wrongly mentioned in the Government Order dated 27.5.2008. All these developments took place before Section 4(1) notification was issued and therefore, when Section 4(1) notification was issued, Sy. No. 1440 was rightly incorporated. Consequently, I do not find any merit in the objection raised by the petitioner against mentioning Sy. No. 1440 in Exts.P2 and P3 notifications issued u/s 4(1) of the Land Acquisition Act.

Now the remaining question is whether any valid circumstances have been made out by the respondents to dispense with the enquiry u/s 5A.

Section 17(1) of the Act provides that in cases of urgency, whenever the appropriate Government or the District Collector so directs, though no award has been passed, on the expiry of 15 days from the publication of the notice mentioned in Section 9(1), possession of any land needed for a public purpose can be taken by the District Collector. Section 17(2) also provides for taking of possession of land under acquisition in the unforeseen circumstances mentioned therein. However Section 17(4) provides as under:

(4). In the case of any land to which, in the opinion of the appropriate Government or the Board of Revenue the provisions of Sub-section (1) or Sub-section (2) are applicable, the appropriate Government or the Board of Revenue, as the case may be, may direct that the provisions of Section 5A shall not apply, and if it does so direct, a declaration may be made u/s 6 in respect of the land at any time after the date of the publication of the notification u/s 4, Sub-section (1).

This sub-section therefore provides that in circumstances appropriate for proceeding under Sections 17(1) and (2), the appropriate Government or the Board of Revenue, as the case may be, may direct that the provisions of Section 5A of the Act shall not apply, and, if it does so direct, a declaration may be made u/s 6 in respect of the land at any time after the date of the publication of Section 4(1) notification. Dealing with Section 17(4) of the Act, in Union of India v. Mukesh Hans 2004 (3) KLT 462 (SC), it has been held by the Apex Court that even in a case where Sections 17(1) and (2) are invoked, that by itself does not amount to dispensing with enquiry u/s 5A of the Act. The law laid down by the Apex Court in this behalf is contained in Paras. 32 and 33, which reads as under:

A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4) that by itself is not sufficient to direct the dispensation of 5A inquiry. It requires an opinion to be formed by the concerned Government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5A inquiry which indicates that the Legislature intended that the appropriate Government to apply its mind before dispensing with Section 5A inquiry. It also indicates the mere existence of an urgency u/s 17(1) or unforeseen emergency u/s 17(2) would not by themselves be sufficient for dispensing with Section 5A inquiry. If that was not the intention of the Legislature then the latter part of Sub-section (4) of Section 17 would not have been necessary and the Legislature in Section 17(1) and (2) itslelf could have incorporated that in such situation of existence of urgency of unforeseen emergency automatically Section 5A inquiry will be dispensed with. But then that is not language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with 5A inquiry does not mean that in every case when there is an urgency contemplated u/s 17(1) and unforeseen emergency contemplated u/s 17(2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government u/s 17(1) or the unforeseen emergency u/s 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry u/s 5A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the 5 A inquiry is inherent in the two types of urgencies contemplated u/s 17(1) and (2) of the Act.

An argument was sought to be advanced on behalf of the appellants that once the appropriate Government comes to the conclusion that there is an urgency of unforeseen emergency under Sections 17(1) and (2), the dispensation of enquiry u/s 5A becomes automatic and the same can be done by a composite order meaning thereby that there is no need for the appropriate Government to separately apply its mind for any further emergency for dispensation with an inquiry u/s 5A. We are unable to agree with the above argument because Sub-section (4) of Section 17 itself indicates that the "Government may direct that provisions of Section 5A shall not apply" which makes it clear that not in every case where the appropriate Government has come to the conclusion that there is urgency under Sub-section (1) or unforeseen emergency under Sub-section (2) of Section 17 the Government will ipso facto have to direct the dispensation of inquiry. For this we do find support from a judgment of this Court in the case of Nandeshwar Prasad and Another Vs. The State of Uttar Pradesh and Others, ) wherein considering the language of Section 17 of the Act which was then referable to waste or arable land and the U.P. Amendment to the said section held thus:

It will be seen that Section 17(1) gives power to the Government to direct the Collector though no award has been made u/s 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken u/s 17(1), taking possession and vesting which are provided in Section 16 after the award u/s 11 are accelerated and can take place fifteen days after the publication of the notice u/s 9. Then comes Section 17(4) which provides that in case of any land to which the provisions of Sub-section (1) are applicable, the Government may direct that the provisions of Section 5A shall not apply and if it does so direct, a declaration may be u/s 6 in respect of the land at any time after the publication of the notification u/s 4(1). It will be seen that it is not necessary even where the Government makes a direction u/s 17(1) that it should also make a direction u/s 17(4). If the Government makes a direction only u/s 17(1) the procedure u/s 5A would still have to be followed before a notification u/s 6 is issued, though after that procedure has been followed and a notification u/s 6 is issued the Collector gets the power to take possession of the land after the notice u/s 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration u/s 17(4) that it becomes unnecessary to take action u/s 5A and make a report thereunder. It may be that generally where an order is made u/s 17(1), an order u/s 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order u/s 17(1) or Section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand.

This principle has been reiterated by the Apex Court again in the judgment in Union of India (UOI) and Others Vs. Krishan Lal Arneja and Others, . Still later, in the judgment in Essco Fabs Pvt. Ltd. and Another Vs. State of Haryana and Another, , after referring to all previous authorities, it has been held in paras. 38 to 42 and 53 as follows:

We find considerable force in the above argument of the learned Counsel for the appellants. The scheme of the Act is clear which provides for issuance of preliminary notification under Sub-section (1) of Section 4 of the Act empowering the appropriate Government to issue such notification for acquisition of land needed or likely to be needed for any public purpose. Since the property belongs to a private individual, unless there is a "public purpose" as defined in Clause (f) of Section 3 of the Act, no acquisition of land can be made.

It is in exercise of power of eminent domain that a sovereign may acquire property which does not belong to him. In the circumstances, as a general rule, before exercise of power of eminent domain, law must provide an opportunity of hearing against the proposed acquisition. Even without a specific provision to that effect, general law requires raising of objections by and affording opportunity of hearing to the owner of the property. The Land Acquisition (Amendment) Act, 1923 (Act 38 of 1923), however, expressly made such provision by inserting Section 5A in the Act.

It is, therefore, clear that after issuance of preliminary notification u/s 4 and before final notification u/s 6 of the Act, the appropriate Government is enjoined to hear the persons interested in the property before he is deprived of his ownership rights. But then there may be cases of "urgency" or "unforeseen emergency" which may brook no delay for equisition of such property in larger public interest. The Legislature, therefore, thought it appropriate to deal with such cases of exceptional nature and in its wisdom enacted Section 17.

Whereas Sub-section (1) of Section 17 deals with cases of "urgency", Sub-section (2) of the said section coves cases of "sudden change in the channel of any navigable river or other unforeseen emergency". But even in such cases i.e. cases of "urgency" or "unforeseen emergency", enquiry contemplated by Section 5A cannot ipso facto be dispensed with which is clear from Sub-section (4) of Section 17 of the Act.

Sub-section (4) of Section 17 is an enabling provision and it declares that if in the opinion of the appropriate Government, the provisions of Sub-sections (1) or (2) are applicable, it may direct that the provisions of Section 5A would not apply. It is, therefore, clear that the Legislature has contemplated that there may be "urgencies" or "unforeseen emergencies" and in such cases, private properties may be acquired. But, it was also of the view that normally even in such cases i.e. cases of urgencies of unforeseen emergencies, the owner of property should not be deprived of his right to property and possession thereof without following proper procedure of law as contemplated by Section 5A of the Act unless the urgency or emergency is of such a nature that the Government is convinced that holding of enquiry or hearing of objections may be detrimental to public interest.

Section 17, no doubt, deals with special situations and exceptional circumstances covering cases of "urgency" and "unforeseen emergency". In case of "urgency" falling under Sub-section (1) of Section 17 or of "unforeseen emergency" covered by Sub-section (2) of Section 17, special powers may be exercised by appropriate Government but as held by a three-Judge Bench decision before more than four decades in Nandeshwar Prasad and reiterated by a three-Judge Bench decision in Mukesh Hans, even in such cases inquiry and hearing of objections u/s 5A cannot ipso facto be dispensed with unless a notification under Sub-section (4) of Section 17 of the Act is issued. The legislative scheme is amply clear which merely enables the appropriate Government to issue such notification under Sub-section (4) of Section 17 of the Act dispensing with inquiry u/s 5A if the Government intends to exercise the said power. The use of the expression "may" in Sub-section (4) of Section 17 leaves no room of doubt that it is a discretionary power of the Government to direct that the provisions of Section 5A would not apply to such cases covered by Sub-sections (1) or (2) of Section 17 of the Act.

Therefore, the law is settled that even in a case where Sections 17(1) and 17(2) are invoked, that by itself does not amount to dispensing with enquiry u/s 5A of the Act. The circumstances and the manner in which the enquiry u/s 5A can be validly dispensed with have been pointed out by the Apex Court in para. 16 of the judgment in Union of India (UOI) and Others Vs. Krishan Lal Arneja and Others, , which reads as under:

Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down u/s 5A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry u/s 5A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause u/s 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and inquiry u/s 5A of the Act could be completed. In other words, if power u/s 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen''s property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration.

In the judgment in First Land Acquisition Collector and Others Vs. Nirodhi Prakash Gangoli and Another, , the Apex Court has indicated the extent to which a decision taken u/s 17(4) of the Act can be made subject to judicial scrutiny and relevant portion of para. 4 of the judgment reads as under:

The question of urgency of an acquisition u/s 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers u/s 17(1) and (4) of the Act, and issues notification accordingly, the same should not be interfered with by the Court unless the Court comes to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide. Whether in a given situation there existed urgency or not is left to the discretion and decision of the concerned authorities. If an order invoking power u/s 17(4) is assailed, the Courts may enquire whether the appropriate authority had all the relevant materials before it or whether the order has been passed by non-application of mind. Any post notification delay subsequent to be decision of the State Government dispensing with an enquiry u/s 5(A) by invoking powers u/s 17(1) of the Act would not invalidate the decision itself specially when no mala fides on the part of the Government or its officers are alleged. Opinion of the State Government can be challenged in a Court of law if it could be shown that the State Government never applied its mind to the matter or that action of the State Government is mala fide. Though the satisfaction u/s 17(4) is a subjective one and is not open to challenge before a Court of law, except for the grounds already indicated, but the said satisfaction must be of the appropriate Government and that the satisfaction must be, as to the existence of an urgency. The conclusion of the Government that there was urgency even though cannot be conclusive but is entitled to great weight, as has been held by this Court in Jage Ram and Others Vs. State of Haryana and Others, . Even a mere allegation that power was exercised mala fide would not be enough and in support of such allegation specific materials should be placed before the Court. The burden of establishing mala fides is very heavy on the person who alleges it.

In the light of the law thus laid down by the Apex Court in the judgment referred to above, the question in this case is, whether on facts, respondents have made out a valid case for dispensing with the enquiry u/s 5A. from the files made available by the learned Government Pleader, it is seen that the District Collector forwarded proposals for invocation of the urgency clause and dispensing of 5A enquiry vide his proposals dated 18.12.2008 and 30.1.2009. These proposals made by the District Collector were dealt with by the office of the Land Revenue Commissioner and it is seen that the Assistant Commissioner passed an order on 26.2.2009 stating that since the project is for a public purpose, it is permissible to invoke the urgency clause. This proposal has been endorsed by the Land Revenue Commissioner by his order dated 27.2.2009. Based on the above, order No. LR C1-58476/08 dated 27.2.2009 has been issued from the office of the Land Revenue Commissioner. This order reads as under:

PROCEEDINGS OF THE COMMISSIONER OF LAND REVENUE (PUBLIC OFFICE BUILDINGS, MUSEUM JUNCTION, THIUVANANTHAPURAM - 33) (Present: Smt. K.B. Valsalakumari, I.A.S.)

No. LRCI-58476/08

Dt.27.2.2009

Sub:- Land Acquisition - Attipra, Cheruvakhal, Kadakampalli, Ulloor, Thiruvallam, Nemom Villages, Thiruvananthapuram Taluk Thiruvananthapuram District-Land for Sewerage Pumping Stations under JNNURM and KSUDP Projects sanction u/s 17(4) of the LA Act-orders issued.

Ref:- Lr. No. K15-68103/08 of the District Collector, Thiruvananthapuram dt. 18.12.2008 and 30.1.2009.

The District Collector, Thiruvananthapuram in his letter read above has requested sanction u/s 17(4) of the L.A. Act 1894 to dispense with the objection hearing provisions u/s 5A of the Act for the acquisition of 17666 M of land requisitioned by Secretary, Thiruvananthapuram Corporation for the Sewerage Pumping Stations under JNNURM-KSUDP Projects in view of the urgency of the proposal. The details of the land are given below:

------------------------------------------------------------------------ Name of Name of Name of Survey Total District Taluk Village Nos. Extent ------------------------------------------------------------------------ Thiruvanantha- Thiruvanantha- Attipra 145 1333 puram puram 358 1750 428 2205 Cheruvakkal 167 1619 Kadakampally 1440 2050 2359 1700 Ulloor 662 1575 Thiruvallom 410 986 Nemom 270 3128 525 1320 ------------------------------------------------------------------------ Total 17666M ------------------------------------------------------------------------

The Commissioner of Land Revenue having examined the proposal and being satisfied that the land is urgently required hereby directs in exercise of the power under Sub-section (4) of Section 17 of the L.A. Act 1894, that the provision for hearing of objection u/s 5A shall not apply to the acquisition of the above said land for the above purpose.

A reading of the files and the order thus issued show that it was only in view of the urgency of the proposal made by the District Collector that the Land Revenue Commissioner has ordered to dispense with the enquiry u/s 5A. Neither this order nor the files produced show that there was any application of mind by the Land Revenue Commissioner to the urgency pointed out by the District Collector and whether in the circumstances, enquiry u/s 5A of the Act is to be dispensed with. In my view, a very valuable right available to the affected persons has been taken away at one stroke of the pen and that too without any application of mind.

The aforesaid order passed by the Land Revenue Commissioner does not satisfy the requirements as indicated by the Apex Court in the judgments referred to above. Exts.P2 and P3 notifications to the extent it dispenses with enquiry u/s 5A of the Act needs to be interfered with. Accordingly, the notifications to that extent will stand set aside in so far as the petitioner''s land is concerned.

In view of the above, I dispose of this Writ Petition with the following directions:

(1) That it will be open to the Land Revenue Commissioner to reconsider the proposal made by the District Collector vide his letters dated 18.12.2008 and 30.1.2009 and applying the law laid down by the Apex Court in the judgments noticed above. On such examination, if he is satisfied that there exists valid circumstances justifying dispensing with the enquiry u/s 5A of the Act, it is open to him to pass fresh orders concerning the land of the petitioner in accordance with law and continue further proceedings on that basis.

(2) Otherwise, the respondents will continue the land acquisition proceedings after holding enquiry u/s 5A and in compliance with the other statutory requirements in so far as the petitioner is concerned.

In the light of the judgment in W.P. (C) No. 11499/09, W.P. (C) No. 15362/09 will also stand disposed of with similar reliefs.

Writ Petitions are disposed of as above.