State of Rajasthan and Another vs Avnish Kumar Gaur and Another

Arun Mishra, C. J.

The intra-Court appeals have been preferred as against the order dated 10th January, 2003 passed by the single Bench of this Court. Respondents had filed writ petitions assailing the Notification dated 10-7-2002 issued u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") and the Notification dated 2-11-2002 invoking urgency clause u/s 17(1) of the Act and dispensing with the inquiry u/s 5-A of the Act.

The land acquisition proceedings were initiated by the State of Rajasthan at the request of Jaipur Development Authority for widening stretch of Bhawani Singh Road from Rambag Circle to Indira Circle in the city of Jaipur. Bhawani Singh Road is main artery of Jaipur, which runs from "Ajmer Road" in the West to "Jawahar Nagar Bye-pass" in the East of Jaipur. The stretch in dispute relates to the part of the road, which is only 60 ft. wide. Rest of the road in most of the places is 100 ft. wide and in some of the places 165 ft. wide. The Jaipur Development Authority felt that the stretch in question was creating traffic chaos and congestion and as such, decided to widen the road from 60 ft. to 100 ft. and requested the State Government to acquire 20 ft. land from both the sides of the road for which aforesaid Notifications were issued. Though the Notification u/s 4 of the Act was also questioned, but the Division Bench of this Court has held the Notification u/s 4 to be valid vide judgment dated 7th May, 2004 passed in Ram Chandra Kasliwal v. State of Rajasthan (D. B. Civil Special Appeal (Writ) No. 576/2003 (D) arising out of writ petition No. 8191/2002) and Santokba Durlabhji Memorial Trust v. State of Rajasthan (D. B. Civil Special Appeal (Writ) No. 689/2003 arising out of Writ Petition No. 8184/02). In the writ applications, notification invoking urgency clause and dispensing with inquiry u/s 5-A was also questioned including the notice issued u/s 9 of the Act. Against the said judgment of the Division Bench of this Court dated 7th May, 2004, SLP No. 14479/2004 was preferred by Santokba Durlabhji Memorial Trust and the same was dismissed by the Apex Court vide order dated 6-8-2004.

In view of the aforesaid decisions of the Apex Court and the Division Bench of this Court, the only question remains is as to the validity of Notification dated 2-11-2002 invoking urgency clause u/s 17(1) and dispensing with the inquiry u/s 5-A of the Act. The single Bench by the impugned order has quashed the Notification dated 2-11-2002 issued by the State Government invoking provisions u/s 17(1) of the Act. However, liberty was given to the State Government to hold inquiry u/s 5-A of the Act. The single Bench observed that it does not appear on the face of the notification that any relevant material was ever placed before the State Government. The State Government has not examined any material to come to the conclusion whether the provisions contained in sub-section (1) or sub-section (2) of Section 17 of the Act were applicable or not. The proposed acquisition would mean the cutting of healthy trees on both sides of the road. There exists hospital also. At the same time, the single Bench has observed that it is no doubt true that free flow of traffic is the need of the day not only in Bhawani Singh Road but in entire Jaipur City, but at the same time aspect of noise and air pollution cannot be ignored. The children of educational institutions and patients of hospital cannot be exposed to such pollution. It was necessary for the State Government to adopt proper devices to prevent noise and air pollution but this aspect was not at all considered. Hence, notification dated 2-11-2002 invoking emergent provisions u/s 17 of the Act has been quashed. Aggrieved thereby, the State Government and the JDA have preferred the intra-Court appeals.

It was submitted by the appellants that front set back, which was available to the petitioners upto 40 ft. was required to be reduced to 20 ft. and the same would be in consonance with the Jaipur Development Authority (Jaipur Region Buildings) Regulations, 2000. Widening of road would help to avoid traffic hazard and the risk of accident would be minimized. u/s 13(3)(i) of the Jaipur Development Authority Act, 1982 (hereinafter referred to as "the JDA Act"), the Board is empowered to prepare a Master Plan for traffic control in Jaipur City and to take steps in a phased manner for its implementation. Historically, Jaipur has a tradition of being the first planned city of India after "Mohanjodaro". Jaipur has been known for its wide roads as is clear from the lay out of the Pink City, it has developed as urban centre. For the last decade, it has been felt that the main arterial roads of Jaipur need to be widened and developed in a systematic manner and in consonance with this objective, it was proposed to widen Bhawani Singh Road from Rambag Circle to Indira Circle. A meeting of the Jaipur Traffic Control Board (for short "the Board") was convened on 12-9-2001 and after due deliberation and discussion, the proposal made for widening of Bhawani Singh Road was accepted and approved by the Board. The appellants have further submitted that patch of the road, which is only 60 ft. wide, has bottleneck in the smooth functioning of the traffic as both roads after and before this patch are having the width of 100 ft. There is immense pressure of traffic on the road in question and widening of that road would help to ease out pressure of traffic on other major roads such as Tonk Road where as per the datas furnished by Superintendent of Police (Traffic) Jaipur Ciry during peak hours is 9335 vehicles per hour, on JLN Marg 5066 vehicles per hour and Govind Marg 3000 vehicles per hour. The pressure of traffic on Tonk Road has also increased multi-fold as during last year the Rajasthan Legislative Assembly has also been shifted to its newly constructed building and a large area adjacent to Rambag Golf/Polo Club just opposite Government Secretariat has been converted into Central Park. This is important road which while passing through major institutional areas cut across the entire city from west to east and from Ajmer Road connects the traffic to Jawahar Nagar bye-pass which in turn is connected with National Highways leading to Delhi, Agra and Kota. It was further pointed out in the return filed by the appellants that the said road is the main artery of traffic connecting Ajmer Road on the one hand and the Jawahar Nagar Bye-pass on the other. The said road not only caters to the residential areas but also caters to a wider area on either side such as Raja Park, Adarsh Nagar, Tilak Nagar, Jawahar Nagar etc. While the road from Bais Godown Circle to Ram Bagh Circle has been widened upto 100 ft. and road from Shanti Path to the Jawahar Nagar Bye-pass has also been widened upto 100 ft. but the patch of road from Indira Circle to Bhawani Singh Road has not been widened so far and it is still only 60 ft. In fact, the width of road between Ambedkar Circle and Rambag Circle immediately before patch of the road in question is 165 ft. Therefore, the said patch acts as a bottleneck for smooth functioning of the traffic. The problem is further aggravated by the fact that on the stretch in question, major educational institutions like Subodh School and College and major Hospital like Santokba Durlabhji Memorial Hospital and public offices like RSEB and Rajasthan Warehousing Corporation also lay. The problem is further compounded by the fact that during the peak hours in the morning when the children of the Subodh School and College come in waves and when the children leave in the afternoon, the entire patch is thoroughly blocked by the chaotic traffic condition. The chaotic condition of the traffic is created by the narrowness of the particular patch in question. Considering the fact that the patch in question is part and parcel of major artery and the fact that the patch in question tends to develop a blockage every single day, it was proposed to widen the road in question to ensure smooth and free flow of traffic and that proposal was accepted and approved by the Board in the meeting held on 12-9-2001. The decision has been taken in public interest.

It was further submitted by the appellants that earlier Santokba Durlabhji Memorial Hospital and Shri Vardhman Sthanakvasi Jain Shrawak Jaipur Sangh had agreed to part with 20 ft. wide strip towards Bhawani Singh road and then litigation followed. There were 21 plot holders on the southern side of the road and if the urgency clause would not be invoked much more delay would be caused in implementing the development plan of the JDA for widening of the road, as each one of them would enter into distinct and separate litigation, the process of development would remain stranded at different level of litigation before different Courts. The problem of increasing traffic on the road in question being real, there was justification for invoking urgency clause. It was invoked for bona fide reasons out of pressing necessity of widening of road to ease out the pressure of traffic. The Board has considered the matter and recommended to the State Government for immediate acquiring of 20 ft. land from both sides of the road for the purposes of widening and on the basis of the materials available on record and the report of the Board, which is a statutory body, the State Govern-ment has decided to invoke urgency clause and dispense with the inquiry u/s 5A of the Act. the decision was taken in objective manner.

Mr. R. P. Singh, learned Additional Advocate General and Mr. Rinesh Gupta appearing on behalf of the appellants have submitted that vide judgment dated 7th May. 2004 rendered by the Division Bench of this Court in D.B. Civil Special Appeal (Writ) No. 576/03 (D) and D.B. Civil Special Appeal (Writ) No. 689/2003, the validity of Notification issued u/s 4 of the Act has been upheld and that judgment has been affirmed by the Apex Court vide order dated 6-8-2004 passed in SLP No. 14479/2004. Counsel has further submitted that in view of the aforesaid decisions of the Apex Court and the Division Bench of this Court, invoking of Section 17(1) of the Act and dispensing with inquiry u/s 5-A could not be said to be illegal in any manner. The report of the Board was taken into consideration. There was overwhelming material to invoke urgency clause and dispense with inquiry u/s 5-A of the Act. Counsel has placed reliance on the decisions in First Land Acquisition Collector and Others Vs. Nirodhi Prakash Gangoli and Another, and Ganesh Ram v. State. 2011 (2) WLC (Raj) 1.

On the other hand, Mr. Amod Kasliwal, Mr. Prenay Kasliwal, Mr. Anant Kasliwal, Mr. Vaibhav Kasliwal and Mr. Akhil Simlote, learned counsel appearing on behalf of the respondents have submitted that invocation of urgency clause u/s 17(1) and dispensing with inquiry u/s 5-A of the Act could not be said to be proper in the instant case. Material was not considered by the State Government. The single Bench was right in quashing the Notification invoking urgency clause and directing inquiry u/s 5-A of the Act. They have placed reliance upon the decisions in Bondu Ramaswamy Vs. Bangalore Development Authority and Others, , Union of India (UOI) and Others Vs. Mukesh Hans etc., and Union of India (UOI) and Others Vs. Krishan Lal Arneja and Others, and the reasoning employed by the single Bench in paras 27 and 28 of the impugned order. Inquiry has been held u/s 5-A.

The single Bench has mentioned various decisions in paras 16 to 24 of the impugned order and quashed the notification invoking urgency clause & dispensing with inquiry u/s 5-A of the Act. The single Bench observed that it does not appear on the face of the notification that any relevant material was ever placed before the State Government. The State Government has only considered the letter of JDA and agreed to the proposal. The State Government itself neither examined any material nor formed opinion whether the provisions contained in sub-section (1) or sub-section (2) of Section 17 were applicable or not. The reasoning given by single Bench in paras 27 and 28 are quoted below :-

A bare look at the notification dated November 2, 2002 issued by the State Government dispensing with the inquiry u/s 5-A goes to show that the State Government only agreed to the proposal of JDA for widening the stretch of Bhawani Singh Road from Ram Bagh Circle to Indira Circle. It does not appear on the face of the notification that any relevant material was ever placed before the State Government. It is evident that the State Government only considered the letter of JDA and readily agreed to the proposal. The State Government itself neither examined any material nor formed opinion whether the provisions contained in sub-section (1) or sub-section (2) of Section 17 were applicable or not? Forming opinion on the basis of material is the condition precedent under sub-section (4) of Section 17 which is not fulfilled in the instant case. Their Lordships of the Supreme Court in Rohtas Industries Vs. S.D. Agarwal and Others, propounded thus (para 46)-

If it is established that there was no material upon which the authority could form the requisite opinion the Court may infer that the authority did not apply its mind to the relevant facts.

(Underlining is mine)

In the instant case it appears from the material on record that JDA has been visualizing the idea of widening the stretch of Bhawani Singh Road since 1993 but before it took any shape a piece of land adjacent to Bhawani Singh Road was allotted to the petitioner S.S. Jain Subodh Shiksha Samiti. It is also established that prior to issuance of notification, no survey was carried out as required under sub-section (2) of Section 4. The proposed acquisition would mean the cutting of healthy trees on both sides of the road. There also exists a hospital. It is no doubt true that free flow of traffic is the need of the day not only in Bhawani Singh Road but in entire Jaipur City but at the same time aspect of noise and air pollution cannot be ignored. Children of educational institution, patients of hospital and inhabitants of locality cannot be exposed to such pollution. It was necessary for the State Government to adopt proper devices to prevent noise and air pollution but this aspect was not at all considered. I am, therefore, satisfied that requisite opinion is lacking and condition precedent to the exercise of the power under subsection (4) of Section 17 is not fulfilled. The State Government did not apply its mind to the relevant facts before issuing notification under sub-section (4) of Section 17.

Coming to the aforesaid reasoning employed by the single Bench, the first reason is that it does not appear on the face of the notification that any relevant material was ever placed before the State Government. The single Bench ignored and over-looked that in the return it was averred by the appellants that in the meeting of the Jaipur Traffic Control Board held on 12-9-2001, proposal was made for widening of Bhawani Singh Road and after due deliberation and discussion, the proposal for widening Bhawani Singh Road was accepted and approved by the Board, which is a statutory body and on that basis, land acquisition proceedings were started and notification u/s 4 of the Act was issued. It was further averred that representation dated 21-8-2002 was submitted and petitioner in writ petition No. 8468/2002 and others were heard. Considering the fact that patch in question is part and parcel of major artery and the fact that patch in question tends to develop a blockage every single day, it was decided to widen the road to ensure smooth and free flow of traffic. The decision was taken in public interest. It was also averred in para 10 of the return that issue regarding widening of Bhawani Singh Road at the patch between Ram Bagh Circle and Indira Circle was mentioned at Agenda Item No. 36.14. In its 36th meeting, the Board emphasized urgency of the matter and suggested that land in question was required to be acquired on urgent basis. Thus, decision was taken by the State Government in accordance with the recommendations of the Board, which is a statutory body and inquiry u/s 5A was dispensed with and notice u/s 9 was issued for taking possession. It was also submitted that Jaipur Development Authority was trying to widen the road in question since 1990 and earlier Santokba Durlabhji Memorial Hospital and Shri Vardhman Sthanakvasi Jain Shrawak Jaipur Sangh, Jaipur had agreed to part with 20 ft. wide strip towards Bhawani Singh road and then litigation followed and there were 21 plot holders on the southern side of the road. Thus, due to the litigation it was not possible to widen the road for the last more than a decade. The position is worsening every day. It was also contended in the return that Santokba Durlabhji Memorial Hospital has given undertaking to part with the area of 20 ft. but when the action was initiated, it was assailed by way of filing writ petition No. 6148/93 and the said writ petition was dismissed observing that SDMH would have no objection to surrender 20 ft. strip, if 20 ft. strip on the other side was also taken. The objection taken was that land of other side was not being taken or smaller strip was taken because residential houses are said to be located on the other side. It is also apparent from the return and other materials available on record that efforts were being made by JDA to acquire land with effect from 1990. We are now in 2011.

Notification u/s 4'' was issued and declaration u/s 6 and notification invoking urgency clause u/s 17(1) dispensing with inquiry u/s 5A of the Act was issued on. 2-11-2002. Thus, there was ample material before the State Government in the shape of report of the Traffic Control Board, which has considered the gravity of the problem of traffic over the road in question and suggested for invocation of urgency clause. The traffic Control Board is a statutory body constituted u/s 13 of the JDA Act. The Board consists of Transport Commissioner, Chief Personnel Officer, Nagar Nigam, Jaipur, Managing Director, RSRTC, Superintendent of Police (Traffic), Secretary, JDA, Director (Finance) JDA, Director (Engg), Director, Town Planning, Additional Chief Engineer, PWD and Superintending Engineer, PHED and they have considered the matter and recommended to the State Government for immediate acquisition of 20 ft. wide strip on both sides of Bhawani Singh Road. This material was not required to be reflected in the notification. Thus, in our opinion, the single Bench has erred in observing that it should have been so reflected in the notification which was so issued. There was overwhelming material available on record and the report of the statutory Board to form the opinion with respect to acquisition and invocation of urgency clause. These facts were not required to be mentioned in the notification. It is not disputed that Bhawani Singh Road is main artery of Jaipur and though roads from basis Godown Circle to Ram Bagh Circle, Shanti Path to Jahawar Nagar Bye-pass and Hawa Sarak from Sodala to Bais Godown have been widened upto 100 ft. but patch of road in question has not been widened so far and it is still only 60 ft. and in fact, width of the road between Ambedkar Circle and Rambag Circle immediately before the patch of the road in question is 165 ft. and thus, area in question is definitely a bottleneck which was required to be widened. Thus, reasoning employed by the single Bench that material was not considered by the State Government is impermissible. It has been assumed that it is necessary that in the notification, it should be mentioned as to what was the relevant material placed before the State Government. The finding of single Bench that material was not taken into consideration by the State Government is based on assumption and reasoning being conjectural is liable to be set aside.

The finding of single Bench that no survey u/s 4(2) of the Act was conducted is also contrary to the material available on record. It was clearly mentioned in the return that survey u/s 4(2) was carried out. There was nothing to disbelieve the averments made in the return. The reasoning employed by the single Bench that some of the trees would be cut on both sides of the road in question is also impermissible reasoning. When widening of road is necessary, if some trees are to be cut, direction could have been issued for plantation, which would have taken care of apprehension with respect to environment. The single Bench has also mentioned that there exists hospital. Earlier the said hospital had agreed to surrender 20 ft. of land for widening of the road in question provided 20 ft. is taken from other side of the road. The road in question being '' artery of Jaipur and there was bottleneck, traffic hazard and congestion, its widening was necessary. Earlier assurances, which were given, were not fulfilled. Consequently, land acquisition proceedings had to be initiated.

The single Bench has also adopted a reasoning that noise and air pollution cannot be ignored. In view of the bottleneck which has been created, if road in question is not widened, in our opinion, that would cause more noise and air pollution, due to traffic stoppage, blowing of horns is inevitable. As vehicles are not able to move freely & speedily due to bottleneck, that would cause more environmental damage. How noise and air pollution could be prevented by not widening road has not been considered by the single Bench. Reasoning employed buttresses against the plea raised by the petitioners. In our opinion, noise and air pollution could be checked by widening road in question.

The single Bench has also observed that children of educational institution, patients of hospital and inhabitants of locality cannot be exposed to such pollution. As already stated above, there would be more noise and air pollution in case the road is not widened and for proper flow of the children and persons visiting the hospital, it is necessary to widen the road in question. The bottleneck creates more air and noise pollution. Thus, single Bench has gravely erred in law in quashing the notification invoking urgency clause u/s 17(1) and dispensing with inquiry u/s 5A of the Act.

In Union of India and others Vs. Praveen Gupta and others, in the matter of shifting of timber business from the walled city to the outskirts of the city for the purpose of relieving the traffic congestion in the walled city, the Apex Court held that invocation of urgency provision dispensing with the inquiry u/s 5-A of the Act was warranted. There was no need to pass any reasoned order to reach the conclusion that there was urgency so as to dispense with the inquiry u/s 5-A in exercise of power u/s 17(4) of the Act. The Apex Court laid down in paras 7, 8 and 9 thus:

Shri Sanghi, learned Senior Counsel has pointed out that there is no real urgency in this matter and the respondents could have been given an opportunity to contend that land is not needed for any public purpose. In support thereof, he placed strong reliance on the judgments in Narayan Govind Gavate and Others Vs. State of Maharashtra and Others, , Dora Phalauli Vs. State of Punjab and Others, , State of Punjab and Another Vs. Gurdial Singh and Others, . The decision in Narayan Govind''s case, has been distinguished by this Court in several cases. In the light of the ratio in catena of decisions, this Court has consistently held that acquisition of the property for the planned development of the housing accommodation is an urgent for acquisition and, therefore, dispensing with the inquiry u/s 5A. exercising power u/s 17(4) has been held to be valid. It is true that in Dora Phalavi and Gurdial Singh''s case the two Judge Bench of this Court in each of the cases held that inquiry u/s 5A may not be dispensed with in a cavalier manner denying the opportunity to file the objections, unless real urgency is shown. Each case has to be considered on its own facts. The very object of inquiry u/s 5A is whether the land proposed to be acquired is needed or is likely to be needed for the public purpose mentioned in the notification and whether any other suitable land other than the acquired land is needed for the said public purpose. In this case, the entire land in two villages was acquired. It is seen that timber business is being carried on in the walled city of old Delhi. It has become a source of traffic congestion and that it requires to be shifted urgently from the existing place to relieve the congestion by acquiring the concerned land for the public purpose namely, establishment of timber depots. It is true that a mention was also made that unauthorised construction has been made in the area proposed to be acquired. If the inquiry was conducted delay would defeat the very public purpose of acquisition for shifting of timber business from the walled city and establishment of the timber depots outside the walled city. Therefore, the urgency mentioned in exercising the power u/s 4(1) was justified. Shri Goswami, learned senior counsel for the Union of India, has relied upon the judgment of this Court in Muni Lal Vs. The Oriental Fire and General Insurance Company Ltd. and another, It is true, as pointed out by Shri Sanghi, that the acquisition in this reported decision was made for the establishment of sewerage plan as per the direction of this and, therefore, there was urgency.

But as stated earlier, since the acquisition is for shifting of timber business from the walled city to the outskirts of the city, shifting itself is for urgent purpose, viz., to relieve the traffic congestion in the walled city. Under those circumstances, the exercise of the power u/s 17(4) cannot be said to be unwarranted in this case. It is true that there was a delay, from the date of the notification u/s 4(1) of the Act in publication of the declaration u/s 6. When it was pointed out that no counter-affidavit was filed in the High Court explaining the delay, we directed the learned counsel for the State to produce the record. An averment has been made in the SLP that the delay was due to inquiry being conducted into the objections filed before Lt. Governor in this behalf and until the objections were over-ruled, declaration u/s 6 could not be published the note in the office file and the running file do indicate that certain persons kept on making representations right from 1983 and as far as present notification is concerned, objections had been received on 25-4-1990 and, thereafter, they have been considered after the Lt. Governor directed to enquire into the matter and submit the report. Consequently, they conducted the inquiry and submitted the report.

It is now settled legal position that decision on urgency is an administrative decision and is a matter of subjective satisfaction of the appropriate Government on the basis of the material available on record. Therefore, there was no need to pass any reasoned order to reach the conclusion that there is urgency so as to dispense with the inquiry u/s 5A in exercise of power u/s 17(4). It is then contended by Shri Sanghi that as per the revised Master Plan, only 37 hectares of land was needed for establishment of timber depots, though extensive land was sought to be acquired. When that objection was taken, we passed the order directing the competent officer to file an affidavit. By our proceedings dated August 24, 1995, it was observed as under :

In view of the specific averments made in the written submissions of the respondents regarding the location of the timber depots in terms of the master plan, it requires clarification by the Delhi Administration whether the lands in Siraspur and Libaspur are still required for the purpose mentioned in the notification, namely, planned development of Delhi and shifting of the timber depots from the Teliwara area into the new places.

The Apex Court has further laid down in the case of Nirodhi Prakash Gangoli (supra) that invocation of urgency clause is a matter of subjective satisfaction of appropriate Government and so long the purpose of acquisition and urgency to acquire continue to exist, exercise of power u/s 17(4) cannot be held to be mala fide. The Apex Court has laid down thus :-

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 the decision of the State Government dispensing with an inquiry u/s 5A 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. Bearing in mind the aforesaid principles, if the circumstances of the case in hand are examined it would appear that the premises in question was required for the students of National Medical College, Calcutta and the Notification issued in December, 1982 had been quashed by the Court and the subsequent Notification issued on 25-2-1994 also had been quashed by the Court. It is only thereafter the Notification was issued under Sections 4(1) and 17(4) of the Act on 29-11-1994 which came up for consideration before the High Court. Apart from the fact that there had already been considerable delay in acquiring the premises in question on account of the intervention by Courts, the premises was badly needed for the occupation of the students of National Medical College, Calcutta. Thus, existence of urgency was writ large on the facts of the case and therefore, said exercise of power in the case in hand, cannot be interfered with by a Court of law on a conclusion that there did not exist any emergency. The conclusion of the Division Bench of Calcutta High Court, therefore, is unsustainable.

In Rajasthan Housing Board and Others Vs. Shri Kishan and Others, the Apex Court has laid down that satisfaction of Government regarding urgency is subjective and where it was formed fairly and based on material, the Court would not examine the material as an appellate authority. In Union of India (UOI) and Others Vs. S.H. Ganshyam Dass Kedia and Others, , it was held that notification need not specifically recite nature of urgency. If record discloses consideration by the Government on the matter of urgency, High Court cannot sit as a Court of appeal over the subjective satisfaction of the Government. In Chameli Singh and others etc. Vs. State of U.P. and another, the Apex Court has laid down that the acquisition is part of the eminent domain of the State power and individual''s right of an owner must yield place to the larger public purpose. In Bhagat Singh Vs. State of U.P. and Others, it was held by the Apex Court that subjective satisfaction for dispensing with the inquiry u/s 5-A is based on sufficient material and thus, cannot be faulted. In Jai Narain and Others Vs. Union of India and Others, the Apex Court held that emergency must be reflected in the need of the acquisition. The existence of urgency is a matter which is entirely based on the subjective satisfaction of the Government. The Courts do not interfere unless the reasons given are wholly irrelevant and there is no application of mind. In Meerut Development Authority v. Satbir Singh (1996) 1 SCC 462, the Apex Court has laid down that urgency provisions should be invoked for housing development. These decisions have been referred to by the single Bench in the impugned order, but mandate of the decisions has been ultimately violated while passing the impugned order quashing notification invoking urgency clause and dispensing with inquiry u/s 5-A of the Act. From the materials available on record and the return filed by the appellants, we find that there are overwhelming material including report of the statutory Board constituted u/s 13 of the JDA Act, which has considered the matter and recommended to the State Government for immediate acquisition of 20 ft. land on both sides of the road in question for the purposes of widening and invocation of urgency clause and on the basis of the report of the Board and other materials on record, the decision was taken by the State Government to invoke the urgency clause and dispense with inquiry u/s 5-A of the Act. It was not necessary to mention facts and reasons for invocation of urgency clause in the notification. Thus, the decision rendered by the single Bench is contrary to the decisions referred to in the order.

The Division Bench of this Court in Mohan Singh v. State of Rajasthan 1996 WLC (Raj) UC 548 has laid down that in case of laying down bye-pass to resolve traffic congestion, judicial notice can be taken of urgency of situation. Minor delay in issuing notification u/s 17 after notification u/s 4(1) cannot necessarily imply absence of urgency.

In the case of First Land Acquisition Collector and Others Vs. Nirodhi Prakash Gangoli and Another, the Apex Court has laid down that urgency provision can be challenged on the ground of non application of mind. In the instant case, mind has been applied by the statutory Board and the State Government, The decision to invoke urgency clause cannot be said to be mala fide in any manner or not based on any material.

In the case of Ganesh Ram (supra), the Division Bench of this Court has held that dispensing with inquiry was justified as urgency of matter was proved because of dire need to have transport Nagar so as to relieve to traffic hazard. The decision to dispense with enquiry was not found to be suffering from mala fide or delay and it was taken after due application of mind. In the instant case, the decision to dispense with inquiry was taken by the State Government after due application of mind to the materials on record including the report of the statutory Board and it does not suffer from mala fide or arbitrariness.

As already stated above, Bhawani Singn Road is main artery of Jaipur and though roads from Bais Godown Circle to Ram Bag Circle, Shanti Path to Jahawar Nagar Bye-pass and Hawa Sarak from Sodala to Bais Godown have been widened upto 100 ft., but patch of road in question has not been widened so far and it is still only 60 ft. and in fact, width of the road between Ambedkar Circle and Rambag Circle immediately before the patch of the road in question is 165 ft. and thus, area in question is definitely a bottleneck which was required to be widened. The Traffic Control Board has considered the gravity of the problem of traffic, bottleneck and congestion over the road in question and recommended to the State Government for immediate acquisition of 20 ft. wide strip on both sides of Bhawani Singh Road. Considering the report of the Board and the fact that patch in question is part and parcel of major artery, and the fact that the patch in question tends to develop a blockage every single day and there was bottleneck, traffic hazard and congestion, it was decided to widen the road in question to ensure smooth and free flow of traffic. The decision was taken in public interest. Thus, there was overwhelming material available on record including report of the statutory Board to form the opinion to invoke urgency clause. Hence, single Bench has erred in quashing the notification invoking urgency clause and dispensing with inquiry u/s 5-A of the Act.

It is significant to note that declaration u/s 6 has also been issued, but the same has not been quashed. Without quashing declaration u/s 6, it was not open to direct inquiry to be made u/s 5-A of the Act; Thus, the decision of single Bench also suffers from the aforesaid infirmity. Apart from that, we find that dispensation of inquiry was rightly ordered considering the requirement of widening of road in public interest. Inquiry is held for the purpose of adjudging the suitability whether any other piece of land would be suitable for widening of the road. No other land being available or could have been contemplated as an alternative to the widening of the road at the place in question, thus, when other connecting roads have already been widened and the road in question being main artery of Jaipur and there is traffic problem, bottleneck, traffic hazard and congestion, widening of road in question is absolutely necessary. Thus, there was no necessity of holding any inquiry in the instant case. The emergency clause was rightly invoked considering the materials available on record including report of the statutory Board and judicial notice of such emergency can always be taken. In the case of Satbir Singh (supra), the Apex Court has held that for housing development, urgency prpvisions should be invoked and on the same principle, for widening of road in question, it can be said that urgency clause should be invoked. The materials available on record including the report of the statutory Board justify invocation of urgency clause and dispensation of inquiry u/s 5-A of the Act. The decision does not suffer from any illegality or arbitrariness, rather it was taken in public interest. Jaipur is now on international map and considering that aspect, when other connecting roads have already been widened upto 100 ft. widening of the road in question, which is main artery of Jaipur and there is bottleneck, traffic hazard and congestion, is absolutely necessary and considering the entire facts and circumstances of the case, if urgency clause was invoked and inquiry u/s 5-A was dispensed with, it cannot be said that the action of the State Government was illegal or arbitrary or mala fide. Hence, single Bench has gravely erred in quashing the notification invoking urgency clause and dispensing with inquiry u/s 5-A of the Act.

The learned counsel for the respondents have relied upon the decision in the case of Bondu Ramaswamy (supra) in which the Apex Court has observed that the following areas, with reference to the prevailing system of acquisitions governed by the Land Acquisition Act, 1894, require urgent attention of the State Governments and development Authorities :-

(i) absence of proper or adequate survey and planning before embarking upon acquisition;

(ii) indiscriminate use of emergency provisions in Section 17 of the LA Act;

(iii) notification of areas far larger than what is actually required, for acquisition, and then making arbitrary deletions and withdrawals from the acquisitions;

(iv) offer of very low amount as compensation by Land Acquisition Collectors, necessitating references to Court in almost all cases;

(v) inordinate delay in payment of compensation; and

(iv) absence of any rehabilitatory measures.

In the instant case, we find that proper and adequate survey and planning before embarking upon acquisition was carried out. The decision to invoke urgency clause u/s 17(1) cannot be said to be arbitrary or discriminatory, rather it was taken in public interest and based on overwhelming material including report of the statutory Board. When other connecting roads have already been widened and road in question is main artery and there was bottleneck, traffic hazard and congestion, widening of road in question was absolutely necessary and issuance of notification acquiring land and invoking urgency clause and dispensing with inquiry u/s 5-A cannot be said to be arbitrary in any manner. Thus, the above decision is of no help to the respondents as urgency clause has been invoked in public interest.

Counsel for the respondents have also relied upon the decision in the case of Union of India (UOI) and Others Vs. Mukesh Hans etc., in which the Apex Court has laid down that right of person u/s 5-A to object to the acquisition proceedings is not an empty formality but is a substantive right which can be taken away only for good and valid reasons and within the limitations prescribed u/s 17(4). Such a decision must be based on material on record. In the instant case, there is nothing on record to doubt the report of the statutory Board, which has examined the matter thoroughly and recommended widening of road and invocation of urgency clause. Efforts are being made for the last several years to take the land unsuccessfully and which remained unfructified. Considering pressing need of widening road in question, urgency clause was invoked in public interest. Thus, the above decision is also of no help to the respondents.

Counsel for the respondents have also relied upon the decision in the case of Union of India (UOI) and Others Vs. Krishan Lal Arneja and Others, in which the Apex Court has laid down that State authorities must have subjective satisfaction based on relevant material that real and genuine urgency existed and non invocation of the urgency clause would defeat the very purpose of the acquisition. In the instant case, the statutory Board has rightly considered the matter pertaining to widening of the road in question from 60 to 100 ft. and recommended for immediate acquisition of 20 ft. land from both sides of the road and invocation of urgency clause and on the basis of the report of the statutory Board and other materials available on record, the State Government invoked urgency clause and dispensed with inquiry u/s 5-A. The decision was appropriate considering the entire facts and circumstances of the case. No inquiry was in fact needed when widening of road in question was required from 60 to 100 ft., it being main artery and other facts mentioned in the return are not being disputed. Merely road could have been widened to lesser extent could not have been accepted considering the fact that there was bottleneck, traffic hazard, problem to the public at large, inhabitants and other institutions in the area. There was overwhelming material justifying invocation of.