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Judgment
Anand Byrareddy, J.—Heard the learned counsel for the petitioners and the learned counsel for the respondents. These petitions are considered and disposed of by this common order, having regard to the facts and circumstances.
The petitioners in the first of these petitions, are said to be the legal representatives of the owners of land bearing Sy. No. 64 of Koratagere Kasaba measuring 17 acres 10 guntas. One Chowdaiah, the original owner, died in the year 1991 and the petitioners have succeeded to his estate as joint owners and have filed the common petition. The land in Sy. No. 64 was said to be inam land and governed under the provisions of the Religious and Chartable Inams Abolition Act, 1955, and the petitioner''s father was said to be a permanent tenant who was granted occupancy rights by the Tribunal and therefore was the owner thereof, under whom the petitioners claim.
It transpires that vide preliminary notification which was duly published in the official gazette on 30/12/2004, as well as published in two newspapers on 17/12/2004, was issued invoking the emergency provisions u/s 17(1) of the Land Acquisition Act, 1894 (LA Act, for brevity), and the opportunity of filing objections, was therefore dispensed with. Though a personal notice dated 1/2/2005 was issued, it was issued in the name of the dead father of the petitioners and there was no reference in the said notice of the State, to have been dispensed with the enquiry as contemplated u/s 5A of the LA Act. Pursuant to the preliminary notification, the State had issued the final notification dated 15/2/2006 which was duly published in the gazette on 4/5/2006 and there was yet another preliminary notification dated 1/10/2005 in which, an intention was expressed to acquire yet another extent of 8 acres 8 guntas of the very same land bearing Sy. No. 64, for the purpose of disposal of garbage within the limits of Koratagere Town Panchayat and this was also issued invoking Section 17 of the LA Act and hence the enquiry contemplated u/s 5-A, was dispensed with. Again the notification was in the name of Chowdaiah who was no more and hence the personal notice issued in his name, was redundant.
Insofar as the earlier notification proposing to acquire 3 acres 2 guntas of land was concerned, the petitioners did bring it to the attention of the authorities that Chowdaiah was no more and the proceedings initiated, lacked jurisdiction. However, the respondents had proceeded further. Insofar as the subsequent notification for acquisition was concerned in respect of 8 acres 8 guntas, a corrigendum dated 21/4/2006 was issued, which was duly gazetted on 11/5/2006, to correct the notification issued, as pertaining for the purpose of garbage disposal in respect of constructing a channel for the Hemavathi river. However, inspite of several discrepancies, the authorities sought to proceed further on the basis of the above notifications. Though the-final notification was published in the official gazette on 16/10/2006, no further developments have been taken place. Though there were proposals to delete the land from acquisition proceedings on the footing that there were alternative lands available, no such measure was taken and after further correspondences, awards were passed in respect of respective acquisition of the said lands under the aforesaid proceedings, by awards dated 21/6/2008 and 14/11/2008 respectively. It is at that stage that the present writ petition came to be filed.
The second of these petitions is filed in the following background:
The petitioner No. 1 is said to be the widow of Late Nagaraju and petitioner Nos. 2 and 3 are her children. The said Nagaraju had died in the year 1999 and was holding the land in question, namely 17 acres 10 guntas in land bearing Sy. No. 64, which is again subject matter of the very same acquisition proceedings, which are referred to in the first of these petitions and is sought to be challenged on, more or less, the same grounds as urged in the aforesaid petition.
The petitioners in the first of these petitions were called upon by this court, in the first instance, to explain the delay in approaching the court, as is apparent from the fact that the petitioners seek to challenge the notification of the year 2006, in respect of which, one of the petitioners has filed his affidavit to explain the delay and the manner in which it has occasioned. The petitioner has drawn attention to the exchange of correspondence between the authorities where there was active consideration of deleting the land in question from the acquisition proceedings and it was thereafter shelved and the authorities sought to proceed further. It is this vacillation, insofar as the decision to drop the lands from the acquisition proceedings, which had prevented the petitioner from approaching this court straight away, when there was a move on deleting the lands in acquisition, without recourse to any such objection before this court. Hence such an explanation is accepted.
The learned counsel for the petitioners Sri. M.R. Rajagopal, would contend that the two sets of acquisition proceedings are vitiated in respect of the land of the petitioners. The particulars of which are reiterated herein for ready reference in tabular form:
The second set of acquisition:
Sy. No. 64 of Koratagere Town extent proposed for Acquisition: 8 acres 8 guntas.
Preliminary notification under sec. 4(1)
The learned counsel would point out that the discrepancies and the lapses is claimed from a perusal of the several dates on which the proceedings have meandered. It is straight away seen that, in respect of 3 acres 3 guntas of land in Sy. No. 64, the last of the publications as regarding the acquisition, was on 21/2/2005 and the final notification ought to have been issued within one year from the said date namely on or before 20/2/2006, but it has been issued on 4/5/2006. Therefore it is beyond one year and in contravention of Section 6(1) proviso II of the LA Act. Even the award, which may be seen, was passed after two years, because the last of the publication was made in the Village Chavadi on 22/8/2006, but in fact made on 6/5/2006 and the learned counsel would allege that there is tampering and overwriting insofar as the publication is concerned and takes serious objections to the same and would submit that it was apparently to overcome the lapse on the part of the authorities in having taken steps in accordance with law The award was passed on 21/6/2008,. and is clearly beyond two years and therefore the acquisition would lapse u/s 11A of the LA Act.
Insofar as the second acquisition aforesaid, is concerned., the last publication of Section 4(1) notification, was on 6/3/2006 in the Village Chavadi, in fact, it was gazetted on 3/11/2005 and the final notification was issued on 16/10/2006 and the award was passed on 14/11/2008. Therefore that would also be hit by Section 11A of the LA Act and hence the entire acquisition lapses. Accordingly the learned counsel would submit that the acquisition is void for the reason that Section 17 of the LA Act having been invoked in respect of both the acquisitions, it would require that the authorities did proceed with the expedition as required in terms of Section 17. The learned counsel would draw the attention to the tenor of Section 17, the text of which is reproduced hereunder, for ready reference:
Section 17. Special powers in case of urgency.--(1) In cases of urgency whenever the [appropriate Government], so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section 1). [take possession of any land needed for a public purpose]. Such land shall thereupon vest absolutely in the [Government], free from all encumbrances.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or Ghat station, or of providing convenient connection with or accesses to any such station, [or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances:
Provided that the Collector shall not take possession of any building or part of a building under this subsection without giving to the occupier thereof at least forty-eight hours notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3) In every case under either of the preceding sub-section the Collector shall at that time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and from any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
[(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3)-
(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the person interested entitled thereto, and
(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and
and where the Collector is so prevented, the provisions of section 31, Sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.
(3B) The amount paid or deposited u/s (3A), shall be taken into account for determining the amount of compensation required to be tendered u/s 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector u/s 11, the excess may, unless ''refunded within three months from the date of Collector''s award, be recovered as an arrear of land revenue].
(4) 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 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).
and would submit that the law is well settled, insofar, as Section 17 being invoked by the Apex Court in the decision of Sri Radhy Shyam (Dead) through L.Rs. and Others Vs. State of U.P. and Others, , has culled out the principles, especially with regard to the State having invoked Section 17, the procedure and the manner in which the acquisition proceedings will have to be approached to a culmination, in the following words:
(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry u/s 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired..
(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power u/s 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records.
(vii) The exercise of power by the Government u/s 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in Sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power u/s 17(1).
(viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government u/s 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Sections 5-A(1) and (2) is not at all warranted in such matters.
(ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.
The learned counsel would therefore submit, the manner in which the proceedings in the present case have gone on, would be totally contrary to the guidelines that have been issued by the Supreme Court and therefore, apart from the proceedings being vitiated, as already pointed out, it would also have to be struck down on the ground that the State has not proceeded in the spirit of Section 17 in acquiring the land, if at all the emergency provision could be invoked and hence petitions would have to be allowed.
The learned Government Pleader, on the other hand, while reiterating the sequence of events as found from the record, would not seriously dispute the dates as stated by the learned counsel for the petitioners, but however would add that, though the emergency provisions u/s 17 of the LA Act was invoked insofar as the challenge to the acquisition proceedings are concerned, the same cannot be denied that it is for a public purpose and since several parcels of land have to be acquired, the State having taken recourse to the provisions in the manner as aforesaid, cannot be said to be illegal and further insofar as the payment of compensation is concerned, an enquiry was conducted pursuant to the notice issued prior to the award having been passed and it is only after the petitioners were heard, that the award has been passed and it is also claimed that possession has been taken over and handed over to the Pattana Panchayath, in accordance with law and therefore the possession having vested in the State, the challenge to the acquisition proceedings would be bad in law and cannot be questioned at this point of time and it is claimed that the award has been passed on 14/12/2008. The contention that the notification and proceedings have been taken in the name of a dead person, would also not advance the case of the petitioners, as it was Chowdaiah''s name which was reflected in the revenue records and therefore the law does not require that the State conduct a rowing enquiry to proceed to acquire the land in the name of the person whose name is reflected in the revenue records. It is in this manner that the State Government would seek to justify the actions of the respondent. In the above facts and circumstances, the petitions would have to be allowed, as it is evident that the petitioners should succeed on three grounds. Firstly, there is a marked delay in issuing the final notification, insofar as the first acquisition in respect of 3 acres 3 guntas of land is concerned. As rightly pointed out by the learned counsel for the petitioners, the final notification was beyond one year and even the award was passed after two years and the last of the publications namely on 6/5/2006 and the award having been passed on 21/6/2008, was well beyond two years. Further, insofar as the second acquisition proceedings is concerned, the notifications were clearly in violation of the provisions of the LA Act. The award was passed on 14/11/2008 and was clearly hit by Section 11A of the LA Act. Further the very mariner in which the State has proceeded, after having invoked the emergency clause, would run counter to the law laid down by the Supreme Court, as expounded and the text of which is reproduced herein above and in the light of which, the petitions are allowed. The impugned annexures are quashed.