Madras High Court
V. Doraiswami Pillai (Died) And Another vs The Government Of Tamil Nadu And Others on 11 January, 1990
Equivalent citations: AIR1990MAD321
Author: A.S. Anand
Bench: A.S. Anand
ORDER Sathiadev, J.
1. The legal representative of the petitioner in W.P. No. 8086 of 1982 is the appellants, and the three respondents therein are the respondents herein.
2. The Writ Petition was filed to quash the notice issued on 7-6-1982 under Ss. 9(3) and 10 of Land Acquisition Act in respect of the lands situated in R.S. Nos.20/2, 20/3, 20/4 and 20/5 of an extent of 4.05 acres in Koilpattu Village. It is claimed that at no point of time prior to the impugned notice, there was any notice served on the owner of the land or any intimation given in any other manner by public announcement, etc. in the village. On 29-6-1982 the writ petitioner appeared before the third respondent and submitted that the lands should not (be?) acquired, and in spite of it, in or about first week of Aug., 1982, a notice under S. 12(2) was served determining the compensation at Rs. 13,972.50. It was learnt that the acquisition was for providing house sites for Adi Dravidas. By invoking urgency provisions under S. 17(4) of the Act valuable opportunity of putting forth the objections to S. 5-A enquiry had been deprived unjustly and illegally in a kind of acquisition proceedings in which there could be no urgency involved. It being a colourable exercise of power, and under the facts and circumstances of the case, no valid ground having been made out to dispense with the requirements of S. 5-A enquiry, the writ petition had been filed for the reliefs claimed therein.
3. Learned Judge in dismissing the writ petition, held that the Collector had given sufficient reasons for invoking urgency provi sions of the Act, and that publication had been made in convenient places and that private need of an owner of land will have to give way to public need.
4. Mr. R. S. Venkatachari, learned counsel for the appellant, in his elaborate and extensive submissions, would contend that the formation of opinion to dispense with S. 5-A enquiry was the outcome of the stereotyped approach made in acquisitions relating to provision of house sites for Adi Dravidas, and, therefore, it is a coulourable exercise of power, which had resulted in valuable lands being acquired unjustly. But the Learned Judge has already extracted the relevant portions of the Collector's report found at page 92 of the records produced under rule nisi, which takes note of the condition in which the concerned Adi Dravida families are living and as to why it has necessitated the extension of Harijan Colony in the village. Apart from it, the records also disclose that there were about 57 huts in the existing Colony where 122 independent families reside in a state of congestion and insanitary condition and as such 65 Harijan families, who are houseless, have to be urgently provided with sites. No poramboke, assessed or unassessed lands are available nearby. The total requirement for the 65 Harijan families work out to 4.05 acres. Thus, it was found out that there were certain huts in which two or three families were living in a single hut.
5. Yet, what is contended by Mr. R. S. Venkatachari is that, in every acquisition for providing house sites to Adi Dravidas, the acquiring authorities repeat the same mantra that they are living in highly congested condition, and if epidemic breaks out, there would be deaths, and insanitary conditions prevail in the Harijan Colony, and therefore, they would not be valid grounds to dispense with a valuable right of owner being heard in S. 5-A enquiry, which may not take few days to conclude and further in such acquisition proceedings, when authorities themselves take several months and some times years to process the proposals for acquisitions and thereafter take several years to conclude the acquisition proceedings, the time taken to hold S. 5-A enquiry would never be held as affecting the public purpose aimed to be achieved in a matter of this nature.
6. The first of the decisions relied upon by him is Marimuthammal v. State of Madras, (1970) 1 Mad LJ 227 which dealt with acquisition for providing house sites for Harijans by dispensing with S. 5-A. enquiry, and the learned Judge held that when the authorities had taken three years to decide whether to acquire or not, the professed urgency that there may be outbreak of epidemic in the locality could not be aground made as a clock for the tardy action and that a mere mechanical repetition that they are living in a congested quarter should never the allowed as an excuse to dispense with S. 5-A enquiry,
7. A Division Bench of this Court in Muthu Gounder v. Government of Madras, (1968) 2 Mad LJ 349, while dealing with an acquisition to provide house sites for Harijans, held that directive from the Government to invoke urgency clause in such matters would be on the face of it arbitrary, and if there were facts on which fair and reasonable conclusion can be formed, then the Court will decline to interfere, though it may take a different view on the question of urgency.
8. Learned Counsel Mr. R. S. Venkatachari would then refer to Narayan v. State of Maharashtra, , which dealt with an acquisition to develop an area for industrial and residential purpose, and taking note of the purpose involved therein, it was held that on the face of it, it does not call for any such action; barring exceptional circumstances, as to make immediate possession without holding S. 5-A enquiry imperative, and when such things generally take sufficient period of time, and the holding of S. 5-A enquiry would not be an impediment for the execution of the scheme, and hence elimination of such an enquiry was not justified. Reliance is placed on the following passage there in para 41.
"Again, the uniform and set recital of a formula like a ritual or mantra, apparently applied mechanically to every case, itself indicated that the mind of the Commissioner concerned was only applied to the question whether the land was waste or arable and whether its acquisition is urgently needed.
Nothing beyond that seems to have been considered. The recital itself shows that the mind of the Commissioner was not applied at all to the question whether the urgency is of such a nature as to require elimination of the enquiry under S. 5-A of the Act. If it was, at least the notifications gave no inkling of it at all. On the other hand, its literal meaning was that nothing beyond matters stated there were considered."
By taking note of the recitals found in the notification which did not say that any opinion was formed on the need to dispense with an enquiry, dispensing with the enquiry was held to be defective.
9. The decision reported in Yesho Nathu Mahajan v. State, , points out that providing house sites cannot he said to spring into existence overnight unless it results in some unexpected exceptional or extraordinary situation or development such as an earth quake or flood or some specific clear-cut time-bound project likely to be rendered ipso facto nugatory and infructuous by even much lapse of time to hold the enquiry. It was held that application of urgency clause cannot be a substituted for the laxity on the part of the State administration in expeditiously initiating acquisition proceedings.
10. A learned Judge in Motiyan v. State, , after considering a number of decisions, held that the question regarding the urgency under S. 17(4) is not immune from judicial review, and that the authority has to apply his mind to the nature of urgency involved, before dispensing with S. 5-A enquiry.
11. A Division Bench of this Court in Chinnamma v. State, , held the invocation of urgency provision will depend upon the circumstances of each case, and if the records of the Government do not indicate any application of mind by the Government pertaining to urgency, then the acquisition would be invalid.
12. A learned Judge of this Court in Periyathambi v. Special Thasildar, , held that the records should show the materials for opinion formed by the Government, but if they do not throw light whatever on the circumstances constituting the urgency, then dispensing with S. 5-A enquiry is unjust.
13. A Division Bench of the Bombay High Court in Narayan Govind v. The State, (1971) 73 Bom LR 872, pointed out that the burden is upon the State to show the urgency involved, and if no proof whatever is forthcoming, and when the State fails to produce any relevant material or record, then the formation of the opinion to dispense with S. 5-A enquiry would be illegal.
14. Learned Counsel would then refer to S.T.A. Devasthanam v. State of Tamil Nadu. (1978) (1) Mad LJ (HC) 118, wherein the learned Judge stated that no material had been placed before him such as might indicate the existence of any urgency for the acquisition. In the counter-affidavit, it was stated that Government of India had formulated the scheme to provide dwelling sites to poor workers, and that Government of Tamil Nadu in turn had taken a policy decision to implement it on a warfooting. This was held as hardly a reason for dispensing with S. 5-A enquiry.
15. He then refers to the decision reported in Dora Phalauli v. State of Punjab, , in which it was held that a mere direction to the Collector to take action under urgency provisions of the Act is not a legal and competent fulfilment of the requirement of the law. A Full Bench decision of the Andhra Pradesh High Court in K. Gangaram v. Tahsildar Metpally, (1983) 1 Andh WR 354 : (AIR 1984 NOC 5), is to the effect that the Court must examine whether there are materials which would reasonably justify the dispensing with S. 5-A enquiry, that in respect of acquisition initiated for providing house sites to Harijans alone S. 5-A enquiry could be dispensed with and that any direction by the Government must be scrupulously avoided and the Land Acquisition Authority must consider whether taking of immediate possession would not brook the minimum delay involved in holding S. 5-A enquiry. Learned Counsel no doubt refers to the decision in N. Pitchaiah v. The Dist. Collector, , but it was a case wherein possession was not taken within the period of three months from the date of notification under S. 4 of the Act. Yet another decision by another learned Judge of the same High Court is reported in Krishna Reddy v. Collector, Mahaboobnagar, (1986) 1 Andh WR 436, which dealt with Andhra Pradesh Amendment Act, 1983 and dispensing with of S. 5-A enquiry.
16. A Learned Judge in Haripada Man-dal v. STate, , held that there was no illegality in issuing a notification and direction together, and what is required is that Government must take a decision to make the notification and take another decision to issue direction under S. 17(4). In State of U. P. v. Radhey Shyam, , by reference to Amendment Act 68 of 1984, it was held that even though prior to the amendment it was permissible for the Government to issue a notification under S. 4(1) and make a declaration under S. 6 simultaneously, such a procedure cannot any longer be held valid, and that S. 6 declaration must be made on a subsequent date to that of S. 4(1) notification. This decision would have no application to the acquisition made in this case which was prior to the Amendment Act 68 of 1984, a Division Bench in Sk. Abdul Hamid v. Land Acquisition Collector, Baiasore, , took the view that, when a proposal originated in 1984, was given shape in 1988, it would not be fit case for applying S. 17(4) of the Act.
17. These decisions emphasise that before formation of the opinion about invocation of urgency provisions, the Government will have to apply its mind about 'the need' for invoking the urgency provision and its opinion should be based on relevant materials, and when its action is questioned, under the facts and circumstances of each case, it should discharge the burden by showing as to what are the relevant materials taken into account for the formation of its opinion.
18. It is not necessary to spell out the reasons in the notification as published, and the records produced under rule nisi could be looked into to find out as to what are the materials which prompted the formation of such an opinion. In respect of this acquisition proceeding, the materials had been gathered as extracted above, which disclose the 'need' for invoking the urgency clause. The number of families living in the existing colony, the fact that two or three families live in the same hut, unhygenic conditions prevailing in the locality, etc., are all relevant factors to take a decision whether the colony requires to be extended to relieve the existing conditions. Hence, this is not a matter wherein the opinion had been arrived at, either because of a general directive issued by the Government that urgency clause must be invoked for providing house sites to Adi Dravidas or without gathering necessary and relevant particulars the opinion came to be formed. It is at this juncture, learned Government Pleader points out that the decision to invoke or not to invoke urgency clause cannot be made justiciable, and that it is only the existence or non-existence of the relevant materials for the formation of the opinion would alone be gone into by Courts. Only when mala fides are alleged or that there is an absence of application of mind, invocation of urgency clause could be assailed. In support of this contention, he refers to the decision reported in Raja Anand v. State of U.P., ,in which it was held as follows (para 8) :
".....But even though the power of the State Government has been formulated under S. 17(4) of the Act in subjective terms the expression of opinion of the State Government can be challenged as ultra vires in a Court of law if it could be shown that the State Government never applied its mind to the matter or that the action of the State Government is mala fide....."
Hence, in the absence of any allegation of mala fides and factual particulars as found in the records having not been disputed, and when they are opposite and relevant materials, which could be looked into for invoking the urgency provisions, this is not an instance wherein a mantra is being repeated in the absence of materials or that in implementing any directive or policy decision to invoke urgency provision, without rhyme or reason, S. 5-A enquiry had been dispensed with. With reference to certain number of families living in the colony and the manner in which they were being accommodated, it was opined that the need to dispense with S. 5-A enquiry was inescapable.
19. Yet, learned Counsel Mr. R. S. Venkatachari, would still submit that, when the authorities have taken nearly two years to decide whether to acquire the lands or not, and when they have lethargically gone about the matter taking their own time, the pre-notification delay clearly shows that the time that would be taken for holding a S. 5-A enquiry would not in any manner defeat the public purpose, and this is a relevant factor as held in the decisions above referred to by him to vitiate the acquisition proceedings. In C. Chenchamma v. District Collector, Nellore, , it was held that acquisition of land for dwelling house for poor Harijans is a matter of urgency, and that S. 5-A enquiry could be dispensed with, and if there is some material for the Government to arrive at such a decision, then Court would not interfere with this subjective decision arrived at based on relevant materials. Similar is the view taken by another Division Bench of the same High Court reported in A. Sathyanarayana Rao v. Dist. Collector, Karimanagar, AIR 1982 Andh Pra 465. In State of U.P. v. Pista Devi, , which dealt with Housing Scheme for the general public, and for which urgency clause under S. 17(4) was invoked, it was held that the provision of housing accommodation has become a matter of National urgency and that any post notification delay in completing the proceedings cannot be a ground to invalidate the urgency provisions being invoked in the absence of any kind of mala fides. The decision of the learned Judges in Kasireddy Papaiah v. Govt. of Andhra Pradesh, , was approved in Deepak Pahwa v. Lt. Governor of Delhi, . It was referred to hold that tardy actions of officials in completing the proceedings could not be relied upon, when the need to invoke the urgency provision existed. The pre-notification delay was considered as an irrelevant factor and that it would not in any manner offset or affect the opinion being arrived at, about the existence of the urgency on the date, when the decision was taken. In that decision, it was further held that the greater the delay the more acute the problem and increases the urgency for acquisition. The relevant passage from the Andhra Pradesh decision extracted therein is to" the effect :
"Delay on the part of the tardy officials to take further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of the issue of the notification and to hold that there was never any urgency".
It was held therein that provision of house sites to Harijans is an urgent and pressing necessity and that the invocation of the emergency provisions of the Act cannot be said to be improper in the absence of mala fides, merely because of the delay on the part of some Government officials. Hence, the time taken for formation of the opinion being short or long cannot be a ground to prevent the invocation of the urgent provision.
20. In Deepak Pahwa v. Governor of Delhi, (supra) it was further held in para 8 as follows:--
".....Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. It is, therefore, not possible to agree with the submission that mere pre-notification delay would reader the invocation of the urgency provisions void."
21. In Jage Ram v. State of Haryana, : it was held at page 875 (of SCR) : (at page 1035 of AIR) :
".....That fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the notification was issued, there was urgency or not, the conclusion of the Government in a given case that there was urgency entitled to weight, if not conclusive."
22. In State of U. P. v. Pista v. Devi, it was held (at pp. 2028 and 2029 of AIR) :
"...... In the circumstances of the case it cannot be said that the decision of the State Government in resorting to S. 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.....
6..... We are of the view that in the facts and circumstances of this case the post-notification delay of nearly one year is not by itself sufficient to hold that the decision taken by the State Government under S. 17(1) and (4) of the Act at the time of the issue of the notification under S. 4(1) of the issue Act was either improper or illegal."
23. In Valjibhai v. State of Bombay, five learned Judges have held (Para 5) :
"A declaration as to public purpose of acquisition of land made by the Government is final, except where it is colourable exercise of power."
24. In State of Punjab v. Gurdial Singh, two learned Judges of the Supreme Court have held that the selection of a land for acquisition for public purpose is left to the discretion of the Government subject to Arts. 14, 19 and 31 of the Constitution, and that Courts would not interfere with the choice made unless it was done with oblique ends or otherwise void.
25. In Ratilal v. State of Gujarat, it was again reiterated that it cannot be claimed that a housing scheme for a limited number of persons cannot be considered as a public purpose, and that need of a Section of the public would be a public purpose and that it ordinarily the Government is the best authority to determine whether the purpose in question is a public purpose or not.
26. These decisions go to show that in the absence of any oblique motive, the question as to whether the purpose is a public purpose or not, and whether the urgency provisions could be invoked or not, are not for judical review. Hence, in the light of these authoritative pronouncements of the Supreme Court, the decisions relied upon by the learned counsel for petitioner, as referred to earlier, cannot be of any assistance to hold that the pre-notification delay or the post-notification delay by officialdom would always constitute a ground to vitiate the invocation of urgency provisions under the facts and circumstances of a particular case. In the instant matter, factual particulars taken into account justify the 'need' to invoke the urgency provisions on the date when the decision was taken i.e. because of the conditions found to be prevailing in the colony, it was felt that if a S. 5-A enquiry is to be held, it would delay in taking possession of the property and that the circumstances were such that there was need to dispense with S. 5-A enquiry.
27. Lastly, learned Government Pleader by referring to the statement made by the writ petitioner on 29-6-1982 in Award Enquiry, would submit that he having not raised the objections to the acquisition proceedings, and having claimed only enhanced compensation; he was not entitled to file the writ petition. On the same day before deposing in the award proceedings, he had also filed a statement that the proceedings could be dropped because he is in need of the land to carry on cultivation, and if it is to be acquired, then he should be given compensation of Rs. 300/-to Rs. 400/-per cent, so that he could purchase alternate lands and the like. What should have happened was that, he would have come with such a prepared written petition to participate in the award enquiry, and after filing such a statement, while deposing before the Officer, he had finally stated that he has no objection to the acquisition of land subject to proper compensation being paid. This being his final stand, irrespective of whatever he might have stated earlier in the petition filed, it has to be construed that he had not challenged the invocation of the urgency provisions, nor ever made a grievance about dispensation of S. 5-A enquiry this should have been the only ground on which he could have been non-suited, but since learned counsel Mr. R. S. Venkatachari, had made extensive submissions on other points, they had been dealt with herein above.
28. Hence, this writ appeal is dismissed.
29. After the judgment was pronounced, learned Counsel for the appellants sought leave to appeal to the Supreme Court. The judgment has been pronounced by this Court on the basis of the law as settled by the Supreme Court. In our opinion, there is no substantial question of law which may require adjudication by the Supreme Court. The prayer is rejected.
30. Appeal dismissed.