Madras High Court
Kodanad Estate vs The Principal Secretary To The ... on 6 April, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.1497 of 2011 and M.P.Nos.1 to 3 of 2011 Kodanad Estate represented by its Manager Mr.S.Natarajan Kodanad, Kothagiri Taluk, Nilgiris District. .. Petitioner Vs. 1.The Principal Secretary to the Government, Rural Development & Panchayat Raj Department, State of Tamil Nadu, Secretariat, Chennai-9. 2.The District Collector, The Nilgiris District, Udhagamandalam. 3.The Revenue Divisional Officer, Connoor. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent made in Tamil Nadu Government Gazette extraordinary in G.O.Ms.No.114, Rural Development and Panchayat Raj Department (Ma.AThi.4) Department, dated 31.12.2010 and the paper publication made in Dinamalar issue dated 11.1.2011 (Coimbatore) and relating to acquisition of lands of Kodanad Tea Estate and to quash the same as null and void. For Petitioner : Mr.Gurukrishnakumar for A.Navaneetha Krishnan For Respondents : Mr.P.S.Raman, Advocate General assisted by Mr.M.Dhandapani, Spl.G.P. - - - - ORDER
The short question that arises for consideration in this writ petition is whether the action of the respondent State in resorting to the provisions of the Land Acquisition Act, 1894 in acquiring the land belonging to the petitioner Estate for an alleged public purpose in providing road for the residents of Anna Nagar and Kamaraj Nagar hamlets in Kodanad village, Kothagiri Taluk, Nilgiris District and by invoking Sections 17(1) and 17(4) of the Land Acquisition Act through the impugned notification, dated 31.12.2010 and published in the government gazette on the same day are legal?
2.By the impugned notification, the State Government had invoked urgency clause under Section 17(1) and also dispensed with the enquiry under Section 5A by invoking Section 17(4) of the Land Acquisition Act. When the writ petition came up on 24.1.2011, this court had directed notices to be issued to the respondents and had granted an interim stay. Subsequently, the interim stay stood extended and when the matter came up, this court after referring to the order passed by the Supreme Court on 15.5.2008, directed the topo sketch of the area to be produced. Thereafter, on 15.2.2011, this court admitted the writ petition and had extended the interim order and also directed the matter to be listed before the appropriate Court. Thus, it was listed before this Court.
3.Aggrieved by the interim order, the respondent State has filed M.P.No.3 of 2011 for vacating the interim order together with supporting counter affidavit filed by the first respondent on behalf of all the respondents, dated 2.2.2011. Thereafter, the matter was heard on 7.3.2011 and 11.3.2011 and orders were reserved. It is at this stage, the petitioner has filed a rejoinder, dated 11.3.2011 and that a further time was taken by the learned Special Government Pleader to file a reply to the rejoinder, which was filed on 30.3.2011. The petitioner was also directed to circulate a copy of the order passed by the Supreme Court, dated 18.3.2011 as well as the paper book filed before the Supreme Court by the State in the Special Leave Appeal (Criminal)No.3817 and 3818 of 2008 which was also done.
4.Heard the arguments of Mr.Gurukrishnakumar, learned Counsel for Mr.A.Navaneedakrishnan, learned counsel appearing for the petitioner and Mr.P.S.Raman, learned Advocate General assisted by Mr.Dhandapani, learned Special Government Pleader for respondents.
5.The case relating to an access to the road by the residents of Anna Nagar and Kamaraj Nagar hamlets situated adjacent to the petitioner's Estate has a chequered history. Therefore, it is necessary to refer to briefly the history of events which had led to the filing of the present writ petition.
6.The road in which the residents of two hamlets were having access is passing through the petitioner Estate. The road is situated in the patta land belonging to the petitioner Estate. It runs through the Estate approximately for a length of 2.5 Kms. From time to time, the petitioner Estate had put restrictions on the use of vehicles and timings for access to the road. The Grama Sabha of the villages had requested the Government to acquire the road and to entrust it to the panchayat in its meeting held on 21.7.2007. But, however, the Sub Divisional Magistrate-cum-Assistant Collector, Coonoor had initiated proceedings under Section 133 of the Code of Criminal Procedure and had issued directions to the petitioner to keep open the Estate road for all times for all persons including vehicles without any obstruction or hindrance on the said road. The order passed by the Sub Divisional Magistrate came to be a subject matter of attack in Criminal Revision Case Nos.1486 and 1504 of 2007. The criminal revision came to be disposed of by a final order passed by this court on 28.4.2008 (the judgment since reported in 2008 (2) MLJ (Crl.) 402 Mad (Manager, Kodanad Estate, Kothagiri Taluk, Nilgiris District rep by R.Ravichandran Vs. Sub Divisional Magistrate and the Assistant Collector, Coonoor, Nilgiris District)).
7.In that case, this Court in paragraphs 12.2 to 12.7 had recorded the following findings:
"12.2.In the present case, the action of the SDM in taking cognizance of a complaint which did not address any question of any imminent danger or obstruction of a pathway, ought not to have taken note of by him. In addition, the petition signed by the villagers, which was addressed to the Grama Sabha and the Grama Sabha's resolution sent to the Collector wanted the State to find a permanent solution. There is no imminent threat of any obstruction had arisen.
12.3.A conjoint reading of all the Exhibits including the oral and documentary evidence clearly shows that the people of the two hamlets wanted only a free access to their vehicles and also the road being opened during night times without restriction and, therefore, there was no obstruction of passage as such for the public to use the pathway. The obstructions complained were in existence as stated by the deponents right from the year 1995 when the present management took over the Estate. It is as old as 12 years and hence, there was no occasion to use the emergency power under Section 133 Cr.P.C. by the SDM.
12.4.In any event, the complaint that the toll is being collected is not an issue coming within Section 133 Cr.P.C. and it is open to the private owners to collect toll to allow the Estate Road to be used each time when a vehicle was taken and it establishes that practice was done on licence granted by the owners of the property. If it is a dispute over licence conditions, then, it only relates to a civil right between the parties and the parties ought to have been relegated to the Civil Court's jurisdiction.
12.5.In the present case, even by the admission of the parties, the road was a private patta land and the public were allowed on a permissive usage of the road over the period and it does not create any public right overnight. Even assuming that such right is claimed in their favour, they should have approached the Civil Court to establish their right to free passage and ought not to have invoked the proceedings under Section 133 Cr.P.C. Further, while the complainants themselves have demanded for providing a public road, by resorting to land acquisition proceedings, in the evidence, they cannot turn back and say that they have a right to use the private road freely and resort to proceedings under Section 133 Cr.P.C. In the guise of exercising an emergency power under Section 133 Cr.P.C., the authorities cannot create new rights in favour of the so-called complainants.
12.6.In any event, after the preliminary order was passed by the SDM and when an objection was raised in the form of an interim response that the property was a private property, the SDM should have referred the matter for a Civil Court's decision under Section 137(2) Cr.P.C. and must have stayed his own proceedings. On the contrary, in the impugned order, there is no reference to the application of mind with reference to the exercise of discretion under Section 137(2) Cr.P.C. When a valuable right of a owner of a property is at stake, merely because there is a group demand or a mob desire, the power under Section 133 Cr.P.C. cannot be used or rather misused.
12.7.The evidence placed before the SDM does not disclose that there is any imminent danger to public tranquillity or peace and the complaint made by the local people is only a petition to the State to acquire the property."
8.But, even thereafter considering the plight of the residents, in paragraph 14, this court gave the following advice to the petitioner Estate, which reads as follows:
14.A word of advice:-
It is also needless to mention that the petitioner Estate will not deny access to the villagers of Anna Nagar and Kamaraj Nagar to use the pathway as it was done in the last 13 years with such restrictions and conditions as it may impose for utilising the Estate Road considering that it is the only access to the outside world."
9.Notwithstanding the findings rendered therein, the Sub Divisional Magistrate-cum-Assistant Collector filed a Special Leave Appeal before the Supreme Court in Special Leave to Appeal (Criminal)No.3817 and 3818 of 2008. The Supreme Court while ordering special leave had passed the following interim order on the SLP on 15.5.2008, which reads as follows:
"Whatever directions given by the learned Single Judge with regard to the use of the pathway running to the Estate be maintained until further orders."
10.Subsequently, on 3.1.2011, the Supreme Court on finding that the matters were ready for final disposal, had directed the interim order to continue till the disposal of the main SLP. During the pendency of the SLPs, a third party appeal was also filed in Special Leave to Appeal (Criminal)No.4138 to 4141 of 2008 by one Mani. Also a writ petition was filed under Article 32 in W.P.(Civil) Mo.232 of 2008. All the three matters were grouped together. In the SLP filed by the Sub Divisional Magistrate-cum-Assistant Collector with the support of the respondent State, he had raised several grounds. Out of which the following are relevant for the purpose of this writ petition and they read as follows:
"III....that the said road has been used as a pathway for the past 40 years by the villagers resulting in accrual of public right of free access in their favour.
...
XV.That the High Court erred in holding that only land acquisition proceedings ought to have been resorted to and ought not to have invoked section 133 of Cr.P.C cannot be countenanced in law as it defeats the very object of legislating section 133 of Cr.P.C."
.....
XXXIV.That the High Court erred in holding in paragraph 4.1 that the service road is situated in Kodanad limits and that it is a patta land belonging to the estate. Such finding of the High Court is not based on any materials."
11.Even after the final interim order was passed on 3.2.2011 and after orders were reserved in this writ petition, on 18.3.2011, the respondents moved the Supreme Court. The Supreme Court had passed the following order on 18.3.2011, which reads as follows:
"Heard the counsel appearing for the petitioners as also the counsel appearing for the Kodanad Estate. The High Court in the impugned judgment and order had made certain observations with regard to the free passage through the road to the effect that the respondent-Estate would not deny access to the villagers of Anna Nagar and Kamaraj Nagar to use the road as it was done in the last 30 years with such restrictions and conditions as could be imposed for utilising the said road, considering the fact that the same is the only access to the outside world for those villagers.
We are informed that the State of Tamilnadu has initiated appropriate steps for acquisition of the land in question where the road exists but the urgency clause which is invoked by the State has been challenged by the respondent no.1 herein and the said matter is pending before the High Court. We express no opinion with regard to the aforesaid case, which is pending in the High Court.
However, there is an allegation in the present petitions that restrictions are being put by the respondent no.1 in the free movement and use of the pathway during the night making it impossible for the villagers to have access to the outside world during the night in case there is some emergency. Counsel for the Respondent although disputed the aforesaid fact yet in the facts and circumstances, we deem it appropriate to pass following further orders.
Considering the said fact, we pass an order that the free passage through the said road shall be allowed during the day and night and the respondent No.1 shall not put any lock or create any obstruction in the movement of the traffic through the aforesaid road even during the night. However, it shall be open to the respondent No.1 to deploy watchman during the course of the night and there shall be a police picket at the place so as to restrict any movement of unruly elements using the road during the night."
12.On the one hand, the respondent State was contending before the Supreme Court that the pathway is not a private road, but a public pathway and that the petitioner is not entitled to prevent the access to the residents of the two hamlets. They are also not justified in putting restrictions to the movement of the residents of those two hamlets. Though in the criminal revision petition, this court after recording that it is a private road and the Estate is entitled to regulate the movement within the road, but yet this court in the interest of residents of the two hamlets had advised the petitioner Estate to continue the earlier practice so that the residents are not put to any difficulties. The Supreme Court in its first interim order took note of the said advice and made it as a part of its direction. Subsequently, the same interim order was also made absolute. Notwithstanding the same, the respondent State was able to get much wider order even on 18.3.2011 even while the cases are pending before this court and that the criminal revision was not finally disposed of.
13.But, however it is seen from the records that the respondent officials were continuing to indulge in one proceeding or other without showing any legal justification. On 10.1.2009, the Tahsildar, Kothagiri had issued a proceedings and informed the petitioner Estate that the Principal Commissioner-cum-Commissioner for Land Administration by a letter, dated 6.10.2008 had directed to sub divide Survey Nos.138/3, 139/1, 155/3, 155/4, 159 and 160/1,4,5 and 6 to an extent of 0.87.5 hectares for the purpose of acquiring the land by invoking the emergency clause and therefore, in order to permit the officials of the Department, they had requested the Estate Management to give permission to inspect the same vide letters dated 14.11.2008 and 5.12.2008. Since those letters have come back unserved, the petitioner Estate was informed that on 20.1.2009, the officials will be visiting the Estate for the purpose of measuring and sub dividing various survey numbers indicated in the proceedings. Challenging the said communication, the petitioner Estate had filed W.P.No.2172 of 2009 before this Court. In that writ petition, when notice was ordered, the Tahsildar, Kothagiri had filed an affidavit, dated Nil. On the basis of the said affidavit, this court by an order dated 12.2.2009 closed that writ petition. It is necessary to refer to the following observations made in paragraphs 2 and 3 of the order, which reads as follows:
"2.Today, on notice, the learned Government Pleader has filed an affidavit sworn by the Tahsildar, Kothagiri, wherein in paragraph 3, it has been stated as follows:-
"In respect of the notice for inspection issued in Na.Ka.A3.No.11919-08 dated 10.01.2009 impugned in the Writ Petition, it is submitted that this respondent will not re-issue the notice or carry out any field inspection of the land proposed to be acquired before the publication of notification under Section 4(1) of the Land Acquisition Act, 1894 and any further action would be pursued in accordance with law".
3.Recording this statement of the Tahsildar, Kothagiri, this writ petition is closed as no further orders are necessary....."
14.Even after this order, no steps were taken by the respondents for more than 1-1/2 years. But all of a sudden on 31.12.2010, they had issued the impugned notification invoking the urgency clause as well as emergency clause for acquiring the land and also to dispense with the enquiry under Section 5A. In the notification issued in G.O.Ms.No.114, Rural Development and Panchayat Raj Department, dated 31.10.2010, it was stated as follows:
Whereas, it appears to the Government of Tamil Nadu that the Lands specified in the schedule below and situated in the Kodanad Village, Kotagiri Taluk, The Nilgiris District is needed for the public purpose of developing of as public road to Anna Nagar and Kamaraj Nagar Hamlets, by Rural Development and Panchayat Raj Department. Notice to that effect is hereby given to all those to whom it may concern in accordance with the provision of sub-section (1) of Section 4 of the Land Acquisition Act, 1894 (Central Act 1 of 1894);
Whereas the residents of the Hamlets of Anna Nagar and Kamaraj Nagar of Kodanad Village Panchayat in kotagiri Panchayat Union, in the Nilgiris District, have been using the road in the land specified in the Schedule below over a long period of time;
And whereas the said land is in the possession of private owners and it is reported that the residents of the said Hamlets experience much difficulties in using the road in the above land and they are not allowed to use the road during night. Such restrictions have caused much suffering and hardship to the residents of the Hamlets, particularly during emergencies such as deliveries, accidents, etc., as the land specified below is required for public purpose urgently in exercise of powers conferred by the sub-section (1) of the Section 17 of the said Act, the Governor of Tamil Nadu hereby orders to acquire the said land;
Now, therefore, in exercise of the powers conferred by sub-section (2) of Section 4 of the said Act, the Governor of Tamil Nadu hereby authorizes the Revenue Divisional Officer, Coonoor and his staff and workmen to exercise the powers conferred by the said sub-section (2).
In exercise of powers conferred by sub-section (4) of Section 17 of the said Act, the Governor of Tamil Nadu hereby orders that Section 5-A of the said Act has been dispensed to this case in view of urgency as the same involves the right of several members of the public for ingress and egress to their Hamlets."
15.After setting out various survey numbers of the land, the total extent of acquisition was indicated as 1.31.34 hectares. Nowhere in the notification, the respondent State had referred to the earlier proceedings taken under Section 133 Cr.P.C. and various orders passed by this court as well as by the Supreme Court in this regard. It is attacking the attempt made by the respondents to take over the land in which private road is situated and also invoking the urgency clause as well as emergency clause including dispensation of Section 5A enquiry, the petitioner Estate has filed the present writ petition.
16.The contention raised by Mr.Gurukrishnakumar, learned counsel for the petitioner was that there was no necessity for invoking either urgency clause or emergency clause and that the order was issued with mala fide intentions. The attempt by the respondents was to give continuous trouble to the Estate in one form or other. There was no public purpose involved in the acquisition especially when the residents of the two hamlets were allowed to use the road . The restrictions if at all that was imposed was in the interest of safety and security of the Estate. When proceedings were initiated as early as in the year 2007, after four years invoking the urgency clause was illegal and that the power has been exercised in a mechanical fashion. Even if there was any urgency as required under Sections 17(1) and 17(2), there was no scope for dispensing with the enquiry under Section 5A which is a valuable right of the land owner which cannot be curtailed while acquiring the land belonged to the Estate. Since the criminal revision petitions are pending before the Supreme Court, it was wrong on the part of the respondents resorting to acquisition proceedings. By the conversion of private road into public road, the value of the Estate will be diminished and that safety and privacy of the residents of the Estate will be at stake.
17.It was further stated that while in the communication sent by the Principal Commissioner-cum-Commissioner for Land Administration, dated 6.10.2008 as evidenced from the letter written by the Tahsildar, Kothagiri, the land that was sought to be acquired was only 0.87.5 hectares, whereas in the present notification, there was greater demand of 1.31.34 hectares. This will clearly show the non application of mind. It is also stated that in the Nilgiris District, there are several hundred Estate which are having restrictions of usage of their road running through their Estates. But acquisition of private road of the petitioner Estate open to public was only pick and choose method. By converting the private road into public road, several illegal activities including drug trafficking become possible and that some miscreants were cultivating Kanja in the nearby Estate. A clear alternative pathway has been provided to the residents of the two hamlets. It was nothing but a mala fide intention in having resorting to the land acquisition proceedings without any justification.
18.In response to these allegations, in the counter affidavit filed along with vacate stay application, the respondents contended that this court in the criminal revision case had referred to the public demand for public road. Therefore, the resolution of the Panchayat council of Kothagiri, dated 10.7.2008 had requested the State Government to acquire the land by invoking urgency clause. The said resolution was forwarded by the District Administration on 30.7.2010 to the Commissioner of Land Administration for appropriate orders. It was thereafter the Commissioner of Land Administration on 6.8.2010 had requested the State Government to invoke the urgency clause. After considering the proposal by the District Collector as well as materials and considering the request of the general public, the Government had decided to invoke the urgency clause as the management of the Estate had imposed unreasonable restrictions to the general public at Anna Nagar and Kamarajar Nagar by imposing Gate passes and collecting huge toll fees from the poor agriculturists. During night hours, no one was allowed to use the road and that the residents of the two hamlets were facing great hardships especially the school going children, patients and pregnant women are suffering a lot due to restrictions imposed by the management. The management did not permit the usage of disputed road between 6.00 p.m. and 6.00 a.m. of the next day. The were also restricting the movement of tea leaves which will have to be transported within a reasonable time. The vehicles are not allowed to pass through the road. The school going children are made to walk 2-1/2 Kms to the school to take the school bus or the bus to reach the school. Therefore, considering the grave urgency, the Government had decided to invoke the urgency clause to acquire the land.
19.Before invoking the land acquisition proceedings, the District administration claimed that they had inspected the said land and after completing all formalities, the expenditure was also estimated by the Joint Commissioner of Land Reforms. When the Tahsildar, Kothagiri sent an information by letter dated 10.1.2009 for permitting them to do survey work. The petitioner had challenged the same. Subsequently, the Assistant Director of Panchayat and Audit, Uthagamandalam by letter dated 9.11.2009 had requested the acquisition of land belonging to the Estate in various survey numbers. The original extent to acquire the land that was estimated was revised approximately which is 1.31.34 hectares or 3.25 acres taking note of the width of the road. On perusing this proposal, the Government had issued the impugned G.O.Ms.No.114, Rural Development and Panchayat Raj Department, dated 31.10.2010 and approved and notified Section 4(1) notification invoking Section 17(1) of the Land Acquisition Act. Following this, declaration under Section 6 was also published on 22.1.2011. It is also stated that in the order passed in the criminal revision case, this court had observed that permanent solution is only the land acquisition and not by any other manner. But, in the counter affidavit filed by the respondent State, no special reasons were given for dispensing with the enquiry under Section 5A by invoking the clause under Section 17(4) of the Land Acquisition Act.
20.The petitioner in the rejoinder after reiterating the earlier contentions had stated that the alleged sufferings by the villagers including school going children, pregnant women as well as wastage of tea leaves due to delay in obtaining gate pass were made by the respondent State for the first time before this court. The management were issuing gate pass speedily without any delay. The allegation that an Award has been passed under Section 6 on 20.1.2001 was denied. Even when the matter came up on 24.01.2011, there was no reference of any Award being passed. It is also stated that there was no warrant for invoking the emergency clause and the action of the respondents were mala fide.
21.In the reply to the rejoinder, the respondent State had stated that paragraph 6 referred to the interim order passed by the Supreme Court on 18.3.2011. But it was stated that the proceedings under Section 133 Cr.P.C was only a temporary measure and did not ensure permanent relief. With reference to not taking over private roads of the other Estates, it was stated that there was no complaint received from the other Estates. But, curiously, in paragraph 4, for the first time in the reply to the rejoinder, the State Government had averred as follows:
"4....It is an admitted fact that the road belongs to the Estate and that is why the Government is going for acquisition of the land so that it could continue to be used by the public as well as the Estate management...."
22.Even in the counter affidavit, the respondents have not stated as to why the urgency clause was invoked. Even assuming that there was an urgency in the acquisition, as to why enquiry under Section 5A was said to be dispensed with.
23.The learned Advocate General had circulated the original files for the purpose of satisfying this Court that there were actually materials available with the respondents and that there was an application of mind. A perusal of the file clearly showed that it started with the resolution of Kodanadu Panchayat council and that after complaining about the restrictions in using the road and the sufferings by the residents of hamlets, a requisition was made for acquiring the land running to the length of 2-1/2 kms with width of 3-1/2 meters by invoking the emergency clause. This resolution of the panchayat communicated by letter, dated 18.7.2008 was addressed to the District Revenue Officer, Udagamandalam which was done after the order was passed by this court in the criminal revision on 28.4.2008. Before that date, already the Sub Divisional Magistrate had moved the Supreme Court and had obtained an order on 15.5.2008, the first interim order from the Supreme Court reinforcing the earlier advice given by this court in the criminal revision. But the reasons found in the resolution of the Panchayat were very similar reasons which was being utilized by the Sub Divisional Magistrate as part of the exhibits in passing the order under Section 133 Cr.P.C.
24.The contention raised by the Sub Divisional Magistrate before the Supreme Court was that it was a public road and the Estate management cannot obstruct the movement of the residents of that area. If according to the respondent, it is a private road as admitted in the reply to the rejoinder (extracted above) for the first time and that it belonged to the Estate and hence it requires acquisition, there was no need for the respondents to continue the special leave appeal (Criminal) before the Supreme Court. In essence, the respondents cannot take advantage of certain observations made by this court vide judgment in (2008) 2 MLJ (Crl.) 402, dated 28.4.2008 for the reasons to resort to land acquisition, yet at the same time, challenge the very basis of the said judgment before the Supreme Court. The Supreme Court had also passed an interim order and posted the matter for final hearing. Therefore, the respondent State has no compelling reason to invoke the urgency clause as recorded in the impugned notification. Even though the resolution of the panchayat, (a photocopy of which was enclosed in page 75 of the file) was dated 18.7.2008, the first proposal of the District Collector itself was by letter dated 31.12.2009, i.e., nearly after a period of one year and five months.
25.In fact, copies of the communications sent by the District Collector dated 03.12.2009, 24.12.2009 and 30.07.2010 as referred to in the letter of Principal Secretary and the Commissioner for Land Administration addressed to the first respondent, dated 6.8.2010 did find place in the file. In the communication dated 6.8.2010, the Principal Secretary and the Commissioner for Land Administration had only referred to the grievance projected in the panchayat letter, which was sent as early as on 18.7.2008 to the District Collector. In the first letter dated 03.12.2009, the District Collector in paragraph 4 wrote to the Principal Secretary and Commissioner for Land Administration as follows:
"4)This proposals deals with acquisition of dry land in village area with an extent of 0.87.5 hectares (or) 2.16 acres in kodanad Village, kotagiri Taluk, The Nilgiris district. The extent requisitioned by the requisitioning Department has been reconciled with the revenue records and found to be correct in terms of measurement. The sub division records will be prepared and submitted after publication of 4(1) notification. The Honourable High Court, Madras in its judgement dated 12.02.09 in WP.No.2172 of 2009 and MP No.1 of 2009 has directed to enter in land only after publication of notification under section 4(1) of the La Act 1894. The notification u/s 6 will be sent after the notification of 4(1)."
26.Even in the letter sent by the District Collector, dated 24.1.2010, the extent of the land was mentioned as 0.87.5 hectares and the compensation was worked out only in terms of that extent of land only. It was in a further communication dated 23.10.2010 that too on the basis of the discussion the District Collector had with the Secretary to the first respondent has sent a revised proposal increasing the extent of land to be acquired to 3.25 acres or 1.31.34 hectares. By the first two communications, the area was referred as an extent of 0.87.5 hectares. It is curious to note that in the communication dated 3.12.2009, the District Collector had mentioned an extent as 0.87.5 hectares of lands to be acquired and that in the further communication, dated 24.1.2010, once again the same extent was reinforced. But it was before this period, the Tahsildar, Kothagiri made an abortive attempt to inspect the properties by his letter dated 10.1.2009. But when the same was challenged, she filed an affidavit which was recorded by this court on 12.2.2009 that she will not reissue the notice to carryout any field inspection of the land proposed to be acquired before publication of the notification under Section 4(1). But in the letter dated 23.10.2010, the District Collector had revised the area of acquisition after having discussion with the Secretary to the Government, Rural Development Department. In the very same letter, the District Collector also referred in paragraph 5 that the order of the High Court only prohibits the entry into Kodanad Estate land for taking survey work till the publication of Section 4(1) notification. But the cost of the land acquisition can be prepared tentatively based on local enquiry without field inspection. Hence it is necessary to refer to the statement found in the letter written by the District Collector, Nilgiris to the first respondent, dated 23.10.2010, which was also referred as reference No.3 in the impugned G.O.Ms.No.114, Rural Development and Panchayat Raj Department, dated 31.12.2010. The said paragraph reads as follows:
"5)The Hon'ble High Court, madras in its Judgment dated 12.2.2009 in W.P.No.2172/2009 prohibits entry in to the Kodanad Estate lands for taking survey works etc., till the publication of 4(1) notification under LA Act. Therefore, the cost of the Land Acquisition is prepared tentatively based on the local enquiries and without field inspection."
27.After this letter, there was no other material in the file to show that any field inspection was conducted in the land in question. But the extent of the land to be acquired was increased and the cost was worked out on the basis of tentative proposal. But, the first respondent State curiously in their counter affidavit, dated 2.2.2011 in paragraph 12 had averred as follows:
"12....Prior to invoking the land acquisition proceedings, the District Administration inspected the said land for acquisition and after completing all formalities, the expenditure has also been estimated by the Joint Commissioner of Land Reforms."
(Emphasis added)
28.This statement made by the first respondent is not based upon any record. But, instead it is contrary to the materials on record found in the original file. It is for the first respondent State to explain as to when an inspection was done by the District administration especially when the District administration itself had given an undertaking that they will not conduct any inspection until the publication of the notification under Section 4(1). The District Collector had also reiterated the same contention on 23.10.2010.
29.These two factors, i.e., that the area to be acquired was doubled without any material and that without any field inspection, orders were passed invoking the urgency clause for acquiring the land of the petitioner Estate will clearly show that there was total non application of mind in acquiring the lands belonged to the petitioner Estate. In the same communication, dated 24.1.2010, the District Collector found that the road is a bitumen tar road and was in good condition and that the road was maintained by the owner by spending amounts. The same may be reproduced below:
"Apart from this 1.2 K.m BT road is in good condition the road has been maintained by owner by spending roughly calculated to an amount of Rs.21,17,988/-. The amount has to be paid to the land owner."
30.Further, in the communication, dated 23.10.2010, the District Collector had worked out the compensation on the basis of the existing three meters with Bitumen tar road on 2.189 Km length. But in the earlier communication, it was referred to as 1.2 Km as Bitumen Tar road. In the subsequent communication within two months, it was shown as 2.189 Kms. length. All these inconsistencies and wrong noting in the file revealed that the District administration as well as the State Government were not clear in their proposals for acquiring the land. Except by referring to the resolution of the year 2008 passed by the panchayat council, (which was sent immediately after the judgment of this court under Section 133 Cr.P.C. Proceedings) there was no other materials found in the file. Inspite of the panchayat's request for urgency clause to be invoked, there was no attempt on the part of the State to issue any notification immediately thereafter, thereby making it appear that even the understanding of the State, there was no real urgency in dealing with the issue. Neither the file showed any plausible reason for the four years delay in issuing the notification nor there was any ground urged to invoke the urgency clause in dispensing with the enquiry under Section 5A.
31.In this case, already in the criminal proceedings initiated under Section 133 Cr.P.C., the residents of the hamlets were assured of access and that in the interim order, dated 18.3.2011, the Supreme Court had directed the opening of the road without any hindrance to all. Further it is not the case of acquiring barren land for laying a new road, which may require measuring, leveling and tarring the road for a considerable length. Even as per the admission of the District Administration, a pucca and well maintained road is already in existence. The very proposal to pay development charges to the land owner will show that there was no case for any real urgency in the matter. Apart from that, there being no material to find that the Government had applied its mind in invoking the urgency clause and not hearing the objections of the land owner, i.e., the petitioner Estate. It is in these factual background, the legal contentions advanced by both sides will have to be looked into.
32.It is necessary to refer to Section 17 of the Land Acquisition Act, 1894 in its entirety as amended by the Tamil Nadu Amendment Act 68/1984.
17.Special powers in cases 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 public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.
["Explanation.-This sub-section shall apply to any waste or arable land, notwithstanding the existence thereon of scattered trees or temporary structures, such as huts, pandals or sheds".] * (2)[In the following cases, that is to say--] (a) 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 riverside or ghat station, or of providing convenient connection with or access to any such station, [(b)"Whenever in the opinion of the Collector, it become necessary to acquire the immediate possession of any land"--
(i)for the purpose of any library or educational institution, or
(ii)for the construction, extension or improvement of--
(A)any building or other structure in any village for the common use of the inhabitants of such village, or (B)any godown for any society registered or deemed to be registered under the Madras Co-operative Societies Act, 1932, (Madras Act VI of 1932), or (C)any dwelling-house for the poor, or (D)any irrigation tank, irrigation or drainage channel or any well or (E)any road".] * 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 sub-section 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-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for 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.
(3-A) 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 persons 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 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.
(3-B) The amount paid or deposited under sub-section (3-A), shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section 11, the excess may, unless refunded within three months from the date of the Collectors 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 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 sub-section (1). [The starred portions are the insertions by the State Amendment]
33.Mr.Gurukrishnakumar, learned Counsel appearing for the Estate referred to the following decisions:
34.The Supreme Court vide its judgment in Union of India v. Mukesh Hans reported in (2004) 8 SCC 14 had analysed the distinction between the application of Section 17(1) and Section 17(2) of the Land Acquisition Act. It had also emphasised the requirement of an enquiry under Section 5A and held it was not an empty formality. It is necessary to extract the following passages found in paragraphs 29 to 33 as well as paragraph 35 which is as follows:
"29.A careful perusal of the above section shows that sub-section (1) of Section 17 contemplates taking possession of the land in the case of an urgency without making an award but after the publication of Section 9(1) notice and after the expiration of 15 days of publication of Section 9(1) notice. Therefore, it is seen that if the appropriate Government decides that there is an urgency to invoke Section 17(1) in the normal course Section 4(1) notice will have to be published, Section 6 declaration will have to be made and after completing the procedure contemplated under Sections 7 and 8, Section 9(1) notice will have to be given and on expiration of 15 days from the date of such notice the authorities can take possession of the land even before passing of an award.
30.Sub-section (2) of Section 17 contemplates a different type of urgency inasmuch as it should be an unforeseen emergency. Under this section if the appropriate Government is satisfied that there is such unforeseen emergency the authorities can take possession of the land even without waiting for the fifteen-day period contemplated under Section 9(1). Therefore, in cases, where the Government is satisfied that there is an unforeseen emergency, it will have to in the normal course, issue a Section 4(1) notification, hold Section 5-A inquiry, make Section 6 declaration, and issue Section 9(1) notice and possession can be taken immediately thereafter without waiting for the period of 15 days prescribed under Section 9(1) of the Act.
31.Section 17(4) as noticed above, provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency or unforeseen emergency as required under sub-section (1) or (2) of Section 17, it may direct that the provisions of Section 5-A shall not apply and if such direction is given then Section 5-A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of Section 4(1) notification and possession can be made.
32.A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that 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 the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A 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 Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A 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 Section 5-A inquiry does not mean that in each and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act.
33.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 or unforeseen emergency under Sections 17(1) and (2), the dispensation with inquiry under Section 5-A 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 under Section 5-A. We are unable to agree with the above argument because sub-section (4) of Section 17 itself indicates that the Government may direct that the provisions of Section 5-A shall not apply (emphasis supplied) which makes it clear that not in every case where the appropriate Government has come to the conclusion that there is urgency and 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 the inquiry.......
35.At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act...."
The aforesaid reasoning came to be followed in the successive decisions of the Supreme Court.
35.The Supreme Court vide its decision in Sheikhar Hotels Gulmohar Enclave v. State of Uttar Pradesh reported in (2008) 14 SCC 716 had emphasised the need to guard against the overzealous authorities invoking the emergency clause to dispense with the enquiry under Section 5A. Paragraph 8 of the judgment may be usefully extracted below:-
""8.There is no gainsaying in the fact that this right to file objection under Section 5-A is a valuable right and the Governments are not given a free hand to dispense with Section 5-A. Section 5-A is only a safeguard against the arbitrary exercise of the power by the State. But one should also not lose sight of the fact that invocation of such a provision is also sometimes imperative as in order to meet the urgency of the situation it needs to be invoked in public interest. It depends upon case to case. Sometimes it may not be necessary at all and the State functionaries may sometimes out of overzealousness invoke this provision which would seriously jeopardise the interest of the people. Therefore, it depends upon case to case where in a given situation Section 5-A has been correctly invoked and the authorities were satisfied in an objective manner...." (Emphasis added)
36.The Supreme Court in Essco Fabs (P) Ltd. v. State of Haryana, reported in (2009) 2 SCC 377 held that mere invocation of Section 17(1) or Section 17(2) of the Land Acquisition Act by itself will not dispense with the enquiry under Section 5A and that there must be a notification under Section 17(4) is necessary to dispense with an enquiry under Section 5A of the Act. The relevant passages found in paragraphs 39,40,44,52 to 54 may be usefully extracted below:-
"39.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 5-A in the Act.
40.It is, therefore, clear that after issuance of preliminary notification under Section 4 and before final notification under Section 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 acquisition 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.
44....it is clear that even in cases falling under or covered by sub-sections (1) and (2) of Section 17 of the Act and where the Government intends to acquire land in cases of urgency or unforeseen emergency, it is still required to follow procedure under Section 5-A of the Act before issuance of final notification under Section 6 of the Act. It is only when the Government also makes a declaration under sub-section (4) of Section 17 that it becomes unnecessary to take recourse to procedure under Section 5-A of the Act.
52..... it is clear that normal rule for acquisition of land under the Act is issuance of notification under sub-section (1) of Section 4, hearing of objections under Section 5-A and issuance of final notification under Section 6 of the Act. Award will be made by the Collector, notice has to be issued to the landowners or the person interested and thereafter possession can be taken.
53.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 Prasad1 and reiterated by a three-Judge Bench decision in Mukesh Hans2, even in such cases, inquiry and hearing of objections under Section 5-A 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 under Section 5-A 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 5-A would not apply to such cases covered by sub-sections (1) or (2) of Section 17 of the Act.
54.In our opinion, therefore, the contention of learned counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by sub-sections (1) or (2) of Section 17 of the Act, sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections under Section 5-A of the Act. Acceptance of such contention or upholding of this argument will make sub-section (4) of Section 17 totally otiose, redundant and nugatory."
37.The Supreme Court in its decision in Mahender Pal v. State of Haryana, reported in (2009) 14 SCC 281 has held that even if the acquisition is for the public purpose of laying a road, an opinion must be formed by the Government that there exists an emergency. The sine qua non for forming an opinion there must exist a fundamental fact. The reasoning found in paragraphs 6 to 8 may be extracted below:-
"6.The Act has been enacted for the acquisition of land for public purposes and for companies. Having regard to the provisions contained in Article 300-A of the Constitution of India as also the provisions of the Act, the State in exercise of its power of eminent domain may deprive a person of his right to a property only when there exists a public purpose and a reasonable amount by way of compensation is offered for acquisition of his land. The Act fulfils the aforementioned criteria. It, however, lays down the detailed procedures therefor. It is also of some significance to notice that Parliament, by reason of the Act, has imposed further restrictions/conditions for acquisition of land for the benefit of the landowner.
7.Right to file an objection and hearing thereof to a notification issued by the appropriate Government expressing its intention to acquire a property is a valuable right. Such a valuable right of hearing and particularly in a case of this nature could have been taken away only if conditions precedent for exercise of this emergency power stood satisfied. Sub-section (4) of Section 17 of the Act is an exception to Section 5-A of the Act. An opinion of the Government in this behalf is required to be formed if there exists an emergency. Existence of the foundational fact for invoking the aforementioned provision is, therefore, a sine qua non for formation of opinion. Such subjective satisfaction must be based on an objective criteria. Ipse dixit on the part of the State would not serve the purpose. The appellants, in our opinion, had made out a case for examination of their cases in detail. The nature of constructions and other features of the land sought to be acquired have been noticed by us hereinbefore.
8.The purported public purpose for which the land is to be acquired is for laying down a road. We are not unmindful of the fact that the road connection is one of the purposes mentioned in sub-section (2) of Section 17 of the Act in respect whereof sub-section (4) thereof would apply. But the same would not mean that for the purpose of road connection irrespective of the nature of cases and/or irrespective of the nature of the road to be constructed; sub-section (4) of Section 17 of the Act could be invoked." (Emphasis added)
38.The parameters under which an order under Section 17(4) can be challenged came to be considered by the Supreme Court in Tika Ram v. State of Uttar Pradesh reported in (2009) 10 SCC 689. The following passages found in paragraphs 113 and 115 may be extracted below:-
"113..... The High Court was, undoubtedly, correct in holding that there was no necessity of a notice since the satisfaction required on the part of the executive is a subject of (sic subjective) satisfaction, which can only be assailed on the ground that there was no sufficient material to dispense with the enquiry or the order suffers from malice. We will deal with the question as to whether there was an urgency and what is the nature of urgency required.....
115.While considering as to whether the Government was justified in doing away with the inquiry under Section 5-A, it must be noted that there are no allegations of mala fides against the authority. No evidence has been brought before the judgment and the High Court has also commented on this. The housing development and the planned developments have been held to be the matters of great urgency by the Court in Pista Devi case828. In the present case we have seen the judgment of the High Court which has gone into the records and has recorded categorical finding that there was sufficient material before the State Government and the State Government has objectively considered the issue of urgency. Even before this Court, there were no allegations of mala fides. A notice can be taken of the fact that all the lands which were acquired ultimately came to be utilised for the Scheme. We, therefore, reject the argument that there was no urgency to justify dispensation of Section 5-A inquiry by applying the urgency clause." (Emphasis added)
39.The case in Tika Ram (cited supra) came to be quoted with approval in Nand Kishore Gupta v. State of Uttar Pradesh reported in (2010) 10 SCC 282. The following passages found in paragraphs 94 and 95 can be usefully quoted below:
"94.The law on this subject was thoroughly discussed in Tika Ram v. State of U.P.24 to which one of us (V.S. Sirpurkar) was a party. In that decision also, we had reiterated that the satisfaction required on the part of the executive in dispensing with the enquiry under Section 5-A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice.
95.It was also found on facts in Tika Ram v. State of U.P.424 that there was no charge of mala fides levelled against the exercise of power and there was material available in support of the satisfaction on the part of the executive justifying the invocation of the provisions of Section 17. The position is no different in the present case. The High Court in the present matter went a step ahead and examined the bulky original record itself to find that there was full material available."
40.The Supreme Court recently in its decision in Anand Singh v. State of Uttar Pradesh reported in (2010) 11 SCC 242 has held that the right to be heard under Section 5A is a valuable right and it makes the compulsory acquisition consistent with principles of natural justice. It was also held that before dispensing with an enquiry the Government must apply its mind and the power cannot be lightly invoked. If it is made for purposes not genuine, then judicial review is permissible. The Government must produce records to justify its action. Delay in acquisition will make the order invalid. It is necessary to extract the following passages found in paragraphs 41 to 48 of the judgment and it is as follows:
"41.The power of eminent domain, being inherent in the Government, is exercisable in the public interest, general welfare and for public purpose. Acquisition of private property by the State in the public interest or for public purpose is nothing but an enforcement of the right of eminent domain. In India, the Act provides directly for acquisition of particular property for public purpose. Though the right to property is no longer a fundamental right but Article 300-A of the Constitution mandates that no person shall be deprived of his property save by authority of law. That Section 5-A of the Act confers a valuable right to an individual is beyond any doubt. As a matter of fact, this Court has time and again reiterated that Section 5-A confers an important right in favour of a person whose land is sought to be acquired.
42.When the Government proceeds for compulsory acquisition of a particular property for 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 the 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 public purpose, etc. Moreover, the right conferred on the owner or 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.
43.The exceptional and extraordinary power of doing away with an enquiry under Section 5-A in a case where possession of the land is required urgently or in an unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of the exceptional power in dispensing with enquiry under Section 5-A. Exceptional the power, the more circumspect the Government must be in its exercise. The Government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5-A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A.
44.A repetition of the statutory phrase in the notification that the State Government is satisfied that the land specified in the notification is urgently needed and the provision contained in Section 5-A shall not apply, though may initially raise a presumption in favour of the Government that prerequisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which the power has been exercised. Upon challenge being made to the use of power under Section 17, the Government must produce appropriate material before the Court that the opinion for dispensing with the enquiry under Section 5-A has been formed by the Government after due application of mind on the material placed before it.
45.It is true that power conferred upon the Government under Section 17 is administrative and its opinion is entitled to due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary.
46.As to in what circumstances the power of emergency can be invoked are specified in Section 17(2) but circumstances necessitating invocation of urgency under Section 17(1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5-A may not be held and objections of landowners/persons interested may not be considered. In many cases, on general assumption likely delay in completion of enquiry under Section 5-A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realising that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously.
47.The special provision has been made in Section 17 to eliminate enquiry under Section 5-A in deserving and cases of real urgency. The Government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A. We have already noticed a few decisions of this Court. There is a conflict of view in the two decisions of this Court viz. Narayan Govind Gavate3 and Pista Devi6. In Om Prakash313 this Court held that the decision in Pista Devi6 must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate3. We agree.
48.As regards the issue whether pre-notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate Government before the Court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5-A." (Emphasis added)
41.Very recently the Supreme Court once again dealt with the purpose of land acquisition and the lethargy shown by the Government can vitiate the proceedings taken under Section 17 of the Land Acquisition Act in Dev Sharan and others Vs. State of Uttar Prdesh and others reported in JT 2011 (3) SC 102. The following passages found in paragraphs 15 and 36 may be usefully reproduced below:
"15.Admittedly, the Land Acquisition Act, a pre-Constitutional legislation of colonial vintage is a drastic law, being expropriatory in nature as it confers on the State a power which affects person's property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property, other rights become illusory. This Court is considering these questions, especially, in the context of some recent trends in land acquisition. This Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State.
36.This Court also held that in view of the ratio in Union of India V. Mukesh Hans MANU/SC/0773/2004 : (2004) 8 SCC 14, Sub-section (4) of Section 17 cannot be pressed into service by officers who are negligent and lethargic in initiating acquisition proceedings."
42.Per contra, Mr.P.S.Raman, learned Advocate General also referred to the following judgments.
43.The decision of the Supreme Court in Chairman & MD, BPL Ltd. v. S.P. Gururaja, reported in (2003) 8 SCC 567 was relied upon to contend that what was necessary to see in such proceedings is fair play in action. Reference was made to paragraph 34, which is as follows:
"34.Undue haste also is a matter which by itself would not have been a ground for exercise of the power of judicial review unless it is held to be mala fide. What is necessary in such matters is not the time taken for allotment but the manner in which the action had been taken. The court, it is trite, is not concerned with the merit of the decision but the decision-making process. In the absence of any finding that any legal malice was committed, the impugned allotment of land could not have been interfered with. What was only necessary to be seen was as to whether there had been fair play in action."
44.The decision in Bondu Ramaswamy v. Bangalore Development Authority reported in (2010) 7 SCC 129 of the Supreme Court was cited to contend that in the case of acquisition if it is for the benefit of general public, then the provision of adequate compensation is enough to reward the land owner. The following passages found in paragraphs 151 and 153(1) were relied upon by the State:
"151.There are several avenues for providing rehabilitation and economic security to landlosers. They can be by way of offering employment, allotment of alternative lands, providing housing or house plots, providing safe investment opportunities for the compensation amount to generate a stable income, or providing a permanent regular income by way of annuities. The nature of benefits to the landlosers can vary depending upon the nature of the acquisition. For this limited purpose, the acquisitions can be conveniently divided into three broad categories:
(i) Acquisitions for the benefit of the general public or in national interest: This will include acquisitions for roads, bridges, water supply projects, power projects, defence establishments, residential colonies for rehabilitation of victims of natural calamities.
(ii) Acquisitions for economic development and industrial growth: This will include acquisitions for industrial layouts/zones, corporations owned or controlled by the State, expansion of existing industries, and setting up special economic zones.
(iii) Acquisitions for planned development of urban areas: This will include acquisitions for formation of residential layouts and construction of apartment blocks, for allotment to urban middle class and urban poor, rural poor, etc. 153.1.In acquisitions of the first kind (for benefit of general public or in national interest) the question of providing any benefit other than what is presently provided in the Land Acquisition Act, 1894 may not be feasible. The State should however ensure that the landloser gets reasonable compensation promptly at the time of dispossession, so that he can make alternative arrangements for his rehabilitation and survival."
45.In Jai Narain v. Union of India reported in (1996) 1 SCC 9, the Supreme Court dealt with the acquisition of land for sewerage treatment plant was needed and hence urgency clause invoked and invoking the clause was not illegal. In that context, the Supreme Court held in paragraph 5 which is as follows:
5.The first contention raised by the learned counsel is based on the language of Section 4 of the Act. The power under Section 4 of the Act can be exercised when it appears to the Government that the land in any locality is needed or is likely to be needed for any public purpose. It is no doubt correct that the expression is needed indicates the existing need whereas the expression is likely to be needed refers to the future need. When the latter expression is used in the notification under Section 4 of the Act it may be suggestive of the fact that there may not be emergency to acquire the land, but the question of urgency cannot be determined solely by the expressions used in the notification under Section 4 of the Act. The 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. When a notification under Section 4 of the Act uses the expression is likely to be needed it may be necessary, in a given case, to examine the records or the attendant circumstances to satisfy that there was material before the Government justifying the order under Section 17, dispensing with the provisions of Section 5-A of the Act. If the public purpose on the face of it shows that the land is needed urgently, that by itself is a relevant circumstance for justifying the action under Section 17(4) of the Act. This Court in State of U.P. v. Pista Devi2 where urgency provisions were invoked to acquire the land for housing schemes held as under: (SCC p.257, para 5) In the circumstances of the case it cannot be said that the decision of the State Government in resorting to Section 17(1) of the Act was unwarranted. The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke Section 17(1) of the Act and to dispense with the compliance with Section 5-A of the Act.
46.In Chameli Singh v. State of Uttar Pradesh reported in (1996) 2 SCC 549, the Supreme Court has held that right to allotment of houses is a fundamental right and hence urgency clause can be invoked. In paragraph 4, it was observed as follows:
"4..... Right to social and economic justice conjointly commingles with right to shelter as an inseparable component for meaningful right to life. It was therefore, held that right to residence and settlement is a fundamental right under Article 19(1)(e) and it is a facet of inseparable meaningful right to life under Article 21. Food, shelter and clothing are minimal human rights. The State has undertaken as its economic policy planned development of massive housing schemes. The right to allotment of houses constructed by the Housing Board to the weaker sections, lower income group people under Lower Income Group Scheme was held to be a constitutional strategy, an economic programme undertaken by the State and that the weaker sections are entitled to allotment as per the scheme."
47.In Nand Kishore Gupta v. State of Uttar Pradesh reported in (2010) 10 SCC 282, the Supreme Court found that huge land required for project of construction of Express highway and industrial township Project lingering in litigation. The delay had already led to whopping escalation. If 5A enquiry is followed, it would have further escalated cost. It was waste of time and dispensation of 5A justified.
48.In Kishan Das v. State of Uttar Pradesh reported in (1995) 6 SCC 240, the Supreme Court found that possession was taken in 1976 by invoking urgency clause. Construction completed. Under circumstances court cannot go into question of urgency and exercise of power under Section 17(4) as it is belated.
49.In Rajasthan Housing Board v. Shri Kishan, reported in (1993) 2 SCC 84, the Supreme Court found that invocation of Section 17(4) was based on subjective satisfaction of the Government and the Court cannot weigh the material as an appellate authority. Hence it is necessary to refer to paragraph 14 of the judgment which is as follows:
"14.Shri Thakur further argued that the construction of houses by Housing Board is not of such urgency as to call for the invocation of the said power. We are not satisfied. Firstly, on this question the decision of the Rajasthan High Court is against the writ petitioners. The learned Single Judge negatived it as well as the Division Bench following the opinion of the third Judge. Secondly, we are satisfied that there was material before the Government in this case upon which it could have and did form the requisite opinion that it was a case calling for exercise of power under Section 17(4). The learned Single Judge has referred to the material upon which the Government had formed the said opinion. The material placed before the Court disclosed that the Government found, on due verification, that there was an acute scarcity of land and there was heavy pressure for construction of houses for weaker sections and middle income group people; that the Housing Board had obtained a loan of Rs 16 crores under a time-bound programme to construct and utilise the said amount by March 31, 1983; that in the circumstances the Government was satisfied that unless possession was taken immediately, and the Housing Board permitted to proceed with the construction, the Board will not be able to adhere to the time-bound programme. In addition to the said fact, the Division Bench referred to certain other material also upon which the Government had formed the said satisfaction viz., that in view of the time-bound programme stipulated by the lender, HUDCO, the Board had already appointed a large number of engineers and other subordinate staff for carrying out the said work and that holding an inquiry under Section 5-A would have resulted in uncalled for delay endangering the entire scheme and time-schedule of the Housing Board. If must be remembered that the satisfaction under Section 17(4) is a subjective one and that so long as there is material upon which the Government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority. This is the principle affirmed by decisions of this Court not under Section 17(4) but also generally with respect to subjective satisfaction."
50.In Bhagat Singh v. State of Uttar Pradesh reported in (1999) 2 SCC 384, the Supreme Court did not find fault with the invocation of Section 17(4) and in paragraph 10, it was observed as follows:
"10.In our view, the subjective satisfaction for dispensing with the inquiry under Section 5-A is based on sufficient material and cannot be faulted. The photographs as to the filthy state of the present mandi with garbage and stray cattle and pigs show that the place is so loathsome that it will be precarious and perhaps hazardous to store vegetables or foodgrains in the existing market. We are, therefore, of the view that the urgency clause was rightly invoked by the Government. There are also enough precedents in connection with acquisition of land for markets where Section 5-A has been dispensed with and such action was upheld."
51.The decision in Union of India v. Praveen Gupta reported in (1997) 9 SCC 78 was heavily relied upon by the State to contend that the urgency clause has been properly invoked and in such matter, the interference from Courts are uncalled for. Reliance was placed upon the following passages found in paragraphs 7,9,10 and 11 of the judgment, which are as follows:
"7.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 v. State of Maharashtra1; Dora Phalauli v. State of Punjab2 and State of Punjab v. Gurdial Singh3. The decision in Narayan Govind case1, has been distinguished by this Court in several cases. In the light of the ratio in a catena of decisions, this Court has consistently held that acquisition of the property for the planned development of the housing accommodation is urgent for acquisition and, therefore, dispensing with the enquiry under Section 5-A, exercising power under Section 17(4) has been held to be valid. It is true that in Dora Phalauli2 and Gurdial Singh3 cases, the two-Judge Bench of this Court in each of the cases held that enquiry under Section 5-A 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 enquiry under Section 5-A 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 enquiry 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 under Section 4(1) was justified. Shri Goswami, learned Senior Counsel for the Union of India, has relied upon the judgment of this Court in Jai Narain v. Union of India4. It is true, as pointed out by Shri Sanghi, that the acquisition in this reported decision was made for the establishment of sewerage plant as per the direction of this Court and, therefore, there was urgency.
.....
9.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 enquiry under Section 5-A in exercise of power under Section 17(4).....
10....The language of the notification is not conclusive but the Court is required to consider the material whether there is any urgency to exercise the power under Section 17(4) of the Act. The same view was taken by this Court in Jai Narain case4 referred to earlier.
11.Accordingly, we are of the view that mere mention in the notification that the land is likely to be needed for the public purpose does not take away the power of the appropriate Government to exercise the power of urgency clause under Section 17(4)."
52.A journey into the various decisions cited at the bar the following propositions of law will emerge:
a)A notice under Section 5A is a valuable right for a land owner.
b)The notice under Section 5A was contemplated not only as part of principles of natural justice but also part of fair procedure in commensurate with Article 300A of the Constitution.
c)Mere notification either under Sections 17(1) or 17(2) by itself will not result in the dispensing with the enquiry under Section 5A. There must be an order independently to that effect must be issued.
d)If the State do not justify the dispensation of the enquiry by producing materials in the file then the notification is not valid.
e)The dispensation of the enquiry under Section 5A can be attacked only when there was non application of mind or if it is visited with mala fides.
f)The lethargy of the officials or unexplained delay can be a good ground for interfering with an order under Section 17(4) of the Land Acquisition Act.
53.In the light of the above precedents, it has to be seen that the respondent State having gone to the Supreme Court challenging Section 133 Cr.P.C proceedings contending that it was a public road, ought not to have invoked the Land Acquisition Act proceedings without a final determination of the matter by the Supreme Court. This is especially for the reason that if ultimately the State succeeds before the Supreme Court, the case for acquiring the lands will become an academic issue. Further after having challenged the order passed by this court in the criminal revision petition, they cannot rely upon any portion of the order as a source or basis for invoking the reason for land acquisition.
54.The contention that there was real urgency involved also cannot be accepted. The resolution passed by the Panchayat was on general terms without any details and it was made as early as July, 2008. Basing upon the resolution, the State cannot invoke the urgency clause having allowed the matter to linger for over the last four years. Further the apprehension raised by the villagers as reflected in the resolution which formed the basis does not exist any more, especially after the interim order passed by the Supreme Court on 18.3.2011 throwing open the road for all times without any hindrance. The files did not contain any material to invoke the urgency clause. On the contrary, the correspondence showed that the District administration hardly had any clear data regarding the survey number and the extent of the land that was sought to be acquired. The revised proposal was also sent without any field inspection though in the counter affidavit, a statement was made contrary to the fact on hand.
55.Even assuming without admitting that there was reason to invoke the urgency clause, i.e., the State amendment provides for emergency clause to be invoked by the District Collector on the reasons set out under Section 17(2) which includes acquisition of the land for a public road, that by itself cannot be a reason for invoking the provisions under Section 17(2)(b) as inserted by the State amendment. Under the State amendment, the District Collector must form an opinion that it becomes necessary to acquire the immediate possession of any land for construction, extension and improvement of any road. In the present case, the road is already in existence. Therefore, it cannot be said that an opinion was formed by the District Collector in this regard. On the other hand, the State Government did not issue any notification under Section 17(2) either as per the Central Act or under the State amendment invoking the emergency clause. But along with the notification under section 17(1), the Section 17(4) was invoked by the State dispensing with the enquiry under Section 5A.
56.As can be seen from the long line of decisions, that the urgency clause found under Section 17(1) cannot be equated with the emergency clause set out under Section 17(2) read with Section 17(4). Therefore, the attempt by the learned Advocate General to rely upon the State amendment under Section 17(2) for justifying the impugned order is misconceived and not warranted under the facts of this case. Since in the impugned notification, the State Government had not referred to the application of Section 17(2), which involves certain mandatory conditions precedent, but it had only referred to Section 17(1) and there being no real urgency in invoking the clause to dispense with the valuable right of the land owner under Section 5A is wholly illegal and that the order is liable to be set aside on this ground also.
57.The impugned order of the Government had showed an undue haste, lethargy and non application of mind. The respondent State had not given any valid reason for dispensing with the enquiry under Section 5A. This is especially in the context that they themselves were not sure about the extent of land to be acquired. They had also not inspected the property in question as per their own admission. In the context of the order passed by the Supreme Court, dated 18.3.2011, even the so-called urgency or emergency provision under Sections 17(1) or 17(2) did not arise. The apprehension raised by the petitioner Estate that keeping open the road for all times for all people including vehicles may cause prejudice to them cannot be said to be wholly unreasonable or unjustified. In any event if only they were heard on this question and thereafter the Government had decided the matter, that would have allayed the fears expressed by the Estate.
58.A perusal of the pleadings and the original file clearly showed that there was an undue delay, which denies the State the invocation of urgency clause. There was total non application of mind on the part of the respondent State in issuing the impugned notification. Though in this case the alleged mala fide are not attributed against any particular person in the Government, certainly there is malice in law as set out above.
59.In view of the above, this court has no hesitation to set aside the impugned notification. Accordingly, the entire notification in G.O.Ms.No.114, Rural Development and Panchayat Raj Department, dated 31.12.2010 stands set aside. The writ petition will stand allowed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Principal Secretary to the Government, Rural Development & Panchayat Raj Department, State of Tamil Nadu, Secretariat, Chennai-9.
2.The District Collector, The Nilgiris District, Udhagamandalam.
3.The Revenue Divisional Officer, Connoor