Bombay High Court
Shri Narcinva Yeshwant Saldanha And ... vs The State Of Goa, By Its Chief Secretary ... on 5 October, 1994
Equivalent citations: 1995(4)BOMCR133
JUDGMENT M.S. Vaidya, J.
1. Rule made returnable forthwith by consent. Heard Mr. Rebello for the petitioners, Mr. Coelho Pereira, Advocate General, for the respondents Nos. 1 and 2 and Mr. Diniz for the respondent No. 3.
2. This is a writ petition under Article 226 of the Constitution of India seeking against the respondent Government an order or a direction quashing and setting aside the Notification under section 4 of the Land Acquisition Act, 1894 (vide Exhibit "A" annexed to the petition) which was issued on 5-1-1993 as also the declaration under section 6 (Exhibit "C") made consequent thereto. A provisional injunction was also sought restraining the respondents from taking possession of the land of the petitioners pending the hearing and final disposal of the suit. No interim relief was granted in the petition and, ultimately, the Government has produced on record Certificate, Exhibit "B", (page 111) showing that the possession of the land in question was taken by the Government on 22nd August, 1994.
3. The facts leading to the present petition pertain to the problem of garbage disposal faced by the Municipal Council of Panaji as well as the respondents on account of which the Government were obliged to set a Committee for introducing a scheme. The garbage collected from the city of Panaji was being regularly dumped scatteredly, without any treatment, within the precincts of Chimbel and a strip of land which had been acquired by the Government for the road widening at Kodamba Plateau, namely, the road which leads from Chimbel to Old Goa, via Kadamba. It was felt by the respondents that the said place was posing health hazard to the nearby citizens of the area and there had been objections to that effect from the residents of the neighbouring village. The respondent government through the Ministry of Urban Development, Government of India, therefore, entrusted the work of preparation of a community based Solid Waste Management project to the Regional Water and Sanitation Group of South Asia appointed by the World Bank and the Central National Development Plan. The work of the preparation of the project was entrusted to the Committee sometime in 1991. After the field investigations, the Committee found, as noted in final Report submitted in 1993, the following facts :-
"1. PRESENT SCENARIO
2. Panaji is a small but well developed town with a population of 42,915, as per 1991 GOI census. Wastes from communal bins in Panaji are transported by the Panaji Municipal Council (PMC) to an unsanitary dumping site at Chimbel, 7 km away. Construction wastes and silt are disposed off in low lying areas within Panaji.
3. The following are the major findings of the field investigations and a community need assessment survey, carried out during November and December 1992.
k Households, markets, restaurants and other establishments together generate about 22 tons of wastes per day. In addition, about 11.5 tons of construction wastes are generated daily.
k About 1.8. tons, 8 per cent of total wastes, are collected daily by waste pickers for recycling.
k The major issues raised by the community are the inadequate number and faulty design of bins, the irregular clearing by PMC workers, and the wet and unhygienic conditions around the bins.
k The community is willing to make a monthly payment of Rs. 10 per household, for a community-based primary waste collection system with an improved bin design and daily clearance through a mechanized system."
After the field investigations made by the Karnataka State Council for Science and Technology Team, the work of collecting data on quantity and of physical and chemical characteristics of wastes produced was carried on and the final report was prepared and published sometime in December, 1993. The experts concerned identified, at about that time, the land to be acquired. The ideal site was a quarry pit located at the site under acquisition which has been the subject-matter of the challenge. The respondent No. 3, Panaji Municipal Council, therefore, moved the respondent No. 1, Government, to evolve an emergent solution to the problem. A copy of the aforesaid Report was placed by the learned Advocate General for our perusal.
4. It was on this background that the Government of Goa issued, on 5-1-1993, a Notification under section 4 of the Land Acquisition Act for acquisition of three pieces of lands bearing Survey Nos. 48/2 part (admeasuring 3000 sq. metres), 73/1 part (admeasuring 7350 sq. metres) and 73/2 part (admeasuring 17650 sq. metres), all from village Curca, Taluka Tiswadi. As stated in the Notification, the land acquisition was "for disposal of garbage for Panaji Municipal Council jurisdiction and for access road at Talaulim and Curca villages of Tiswadi Taluka". Under the same Notification it was declared, "Whereas in the opinion of the Government the provisions of sub-section (1) of section 17 of the Land Acquisition Act, 1894 (Central Act 1 of 1894) (hereinafter referred to as "the said Act") are applicable" and, therefore, the Government notified under sub-section (1) of section 4 of the said Act that the said land was likely to be needed for the aforesaid purposes specified in the Notification. The Government further directed in the same Notification "under sub-section (4) of section 17 of the said Act that the provisions of section 5-A of the said Act shall not apply in respect of the said land". No directions were contained in this Notification to the Collector for taking possession of the land at any particular point of time or otherwise. The Notification notified that a rough plan of the said land, which was available for inspection in the Office of the Deputy Collector/Land Acquisition Officer, Collectorate of North Goa District, Panaji for a period of 30 days from the date of publication of the said Notification in the Official Gazette. Thus, in effect, section 17 was invoked only for the purposes of dispensing with the enquiry contemplated under section 5-A of the Act and not for immediate taking over of the possession of the land.
A Notification under section 6 was issued, admittedly within the period of one year from the date of publication of section 4 Notification, on 25-1-1994. Among other things, the said Notification notified, "Whereas the Government of Goa (hereinafter referred to as the "Government") being of the opinion that the acquisition of the said land is urgently necessary, hereby applies the provisions of sub-section (1) and sub-section (4) of section 17 of the said Act and directs that the Collector appointed under paragraph 2 below, shall at any time, on the expiry of fifteen days from the date of the publication of the notice relating to the said land under sub-section (1) of section 9 of the said Act, take possession of the said land." It may be noted that in this Notification the areas of the three survey numbers which were ordered to be taken possession of were lesser than the areas indicated in Notiication under section 4 issued on 5-1-1993. The areas specified in this latter Notification under section 6 were Survey No. 48/2 (admeasuring 2240 sq. metres), Survey No. 73/1 (admeasuring 1030 sq. metres) and Survey No. 73/2 (admeasuring 9186 sq. metres).
5. Though no objections from the persons interested in the land were called upon by the Government, the present petitioner, being the owner of Survey No. 73/2, filed his objections on 1st February, 1993 (vide Exhibit "B") contending that some part of Survey No. 73 belonging to him was an agricultural land and some part was used for stone quarrying (laterite stones) which could be used for the construction of houses and buildings. It was contended that if the said quarry portion was used for dumping garbage in the said place, the same was likely to cause nuisance for the enjoyment of the rest of the property and the agricultural operations in the rest of the part also would be adversely affected. It was also contended that the same would amount to health hazard to the petitioner and the villagers in the vicinity. It was also contended that during the rainy season the water from the land percolated usually in the hollow portion so as to bring about equilibrium of water resources in the area. It was next contended that it was not correct to acquire any portion of the land for construction of a road because there were no houses in the vicinity for which the road could be used as an access road. The main grievance of the petitioner was that he was never given any hearing in support of the contentions raised by him in the aforesaid objection petition.
6. The Government then proceeded to publish a notice under section 9(1) of the Land Acquisition Act on 1-2-1994 requiring the persons interested in the land from specifying their interest before the Collector of North Goa District and stating specifically that in view of the provisions of section 4 of the Act, the possession would be taken over after the expiry of the aforesaid period of 15 days, if necessary. In reply to this notice, the petitioner filed his say on 23rd February, 1994 (vide Exhibit "D") reiterating his objection regarding the exclusion of application of section 5-A of the Land Acquisition Act and opposing the application on the ground that the purposes for which the acquisition was sought to be made would amount to health hazard for the villagers. It was also contended that the said land had immense potential for building purposes and acquiring only 9186 sq. metres out of the total area of about 50,000 sq. metres of Survey No. 73/2 could diminish the value of the land as no person would like to purchase land near the garbage dump which was sought to be created. It was also contended that the garbage dump would destroy the beneficial use of the land. It was, therefore, contended that the acquisition proceedings should be dropped, but it was alternatively contended that the price of the land was above Rs. 100 per square metre and if at all the land were to be acquired, a compensation at the rate of Rs. 100/- per square metre should be awarded.
7. After receiving this say, the Land Acquisition Officer proceeded to pass an Award on 31-3-1994. Notice of the Award under section 12(2) of the Land Acquisition Act was issued on 9-8-1994 (see Exhibit "A", page 109). In the affidavit-in-reply on behalf of the respondent No. 1 it is stated that" not only that the monies for the payment of the said compensation covered under the award were deposited with the Government by the respondent No. 3 Municipal Council but the monies covering the cost of the execution of the project were also placed at the disposal of the respondent No. 3 and the respondent No. 3 had placed an amount of Rs. 1,33,004/- for payment of compensation of the acquired land." A warrant for possession of the acquired land was issued on 9-8-1994 and as stated in Certificate Exhibit "B" at page 111, the possession was taken on 22-8-1994.
8. It was a couple of days before the date of pronouncement of the Award that the petitioner filed the present petition on 29-3-1994. The owners of the remaining two pieces of land under acquisition have not preferred any writ petitions. It is clear from the affidavit of E.A. Cardozo, Under Secretary (Rev. & Urban Development) in Government of Goa (filed on 19th July, 1994) that the actual area acquired from the present petitioner was a pit to the extent of 5987 square metres and an area around the pit admeasuring about 4229 square metres. Thus, in all, a total area of 9186 sq. metres belonging to the present petitioner stood acquired under the acquisition proceedings in question.
9. Mr. Rebello, the learned Counsel for the petitioner, fairly conceded, at the very outset of his arguments, that looking to the material placed on record, the petitioner could hardly dispute that the land was being acquired for a purpose which was a public purpose. It was submitted that though the petitioner had contended in paragraph 5 of the petition that as the respondent No. 3 had already a dumping site at Kadamba Plateau, there was no need for acquisition of the land of the petitioner for that purpose and that his land was being acquired on account of extraneous reasons, there was hardly any material with the petitioner that could support the contention. The condition regarding the use of Kadamba Plateau for the purposes of dumping the garbage, as noted by the Experts' Committee in their observations already quoted above in the Report itself, was precarious and that it was found by the Experts' Committee to be "hazardous to the health of the persons in the locality." The petitioner had hardly any material with him to displace this fact-finding by the Committee of the Experts. Besides, in the face of the gravity and seriousness of the problem, it could hardly be said that any authority of the Government had acted with mala fides in proceeding to acquire the land in dispute.
10. The main contention of Mr. Rebello on behalf of the petitioner was that with all the facts that are placed before the Court on behalf of the respondents, there was hardly any room to say that the Government had any reason whatsoever to dispense with the enquiry under section 5-A of the Land Acquisition Act or, that the urgency was so much that the petitioner should have been deprived of his basic right of putting up his say and being heard in that respect, in the matter of application of the urgency clause so as to dispense with a hearing under section 5-A of the Land Acquisition Act. He submitted that, on given facts, this problem had struck the Government as early as 1991 and since then, Study Groups were entrusted with the fact-finding mission as well as the mission for preparation of a modern project for garbage management. Again, the said Committee of Experts had spent about two years in collection of data and in recording their findings of fact and further in finalising a report in that matter. Admittedly, the Report came to be submitted sometime in December 1993. Therefore, it was submitted that there was no immediate urgency as such, particularly for the purposes of dispensation of a short summary enquiry under section 5-A of the Land Acquisition Act. Again, it was submitted, though the Notification under section 4 of the Land Acquisition Act came to be issued on 5-1-1993, no progress was made in the matter by taking the requisite procedural steps and the Notification under section 6 was published about a year thereafter, i.e. on 25-1-1994. It was submitted, therefore, that when the Government Authorities themselves could proceed with a snail's pace in the matter in finalising the reports and taking the decision, there was no justification whatsoever for dispensation of an enquiry under section 5-A of the Land Acquisition Act. Relying upon several rulings to which we will refer later on in this judgment, he submitted that such a delay itself negatived the urgency which was spoken of in the matter on behalf of the Government and, further, it was only at the cost of a right of the petitioner to have been heard in an enquiry under section 5-A of the Land Acquisition Act that accelerated actions came to be taken only after Notification under section 6 was published on 25-1-1994. According to him, the law does not permit such a course to be adopted by the Government and therefore, the acquisition proceedings, the consequent passing of the Award and the taking over possession of the land were ultra vires the Act and were, therefore, void in law. He, therefore, prayed that Notifications under section 4 as well as section 6 of the Land Acquisition Act deserved to be quashed.
11. The learned Advocate General, in his turn, relied upon some other rulings and submitted that the main thrust of the contentions of the petitioner was that there was delay in the finalization of the project, that there was delay in issuing Notification under section 6 after the issuance of the Notification under section 4 of the Act and that, therefore, it should be presumed that there was no urgency in the matter. He submitted that when the object for which the land was being acquired itself was not in dispute and, further, when it was not in dispute that the question of disposal of garbage involved in it a health hazard to the villagers at one place or the other, it could hardly lie in the mouth of the petitioner that the project of the type that was now envisaged by the Government was not necessary at all with all possible promptitude and action on the part of not only the Government but also the respondent No. 3 Municipal Council. He submitted that in anticipation of the finalization of the project, as soon as the land was identified by the Study Groups, Notification under section 4 was issued on 5-1-1993 and the reasons for which the issuance of Notification under section 6 of the Act had to be delayed were satisfactorily accounted for and explained on behalf of the Government in their affidavits-in-reply. It was submitted that soon after the publication of Notification under section 4, the Military Authorities at Goa as well as in the villages at the site that was sought to be acquired had raised contentions before the Government in connection with the desirability of locating the Garbage Management Plant at the proposed place. It was submitted that those contentions were in the form of public grievances, such as, a health hazard to the localities around as well as to the Military Establishments at Goa and that, therefore, the Department had to make a further enquiry of its own, irrespective of the enquiry made by the Group of Experts, to ascertain whether or not, the contentions urged by the villagers and the Military Authorities had to be sustained. It was submitted that after that enquiry through its own officers, it was finally found that the project as such would not constitute a health hazard and that, therefore, a final clearance was given to the project and it was then that section 6 Notification came to be issued. The affidavit of the Under Secretary, Shri Cardozo, explains how this delay took place. It was also submitted by the learned Advocate General that apart from the personal type of contentions regarding the price level or the pecuniary loss that were sought to be raised by the petitioner in his two says filed by him with the Officers, his contention also was in the nature of raising a public grievance concerning health hazard to the villagers as also the health hazard to the proposed occupiers of plots in the area remaining with him after the acquisition. It was, therefore, contended that it was not that no enquiry whatsoever was made in the matter in respect of the contention of the public nature urged by the petitioner and that, therefore, the petitioner had no justification whatsoever to pose a challenge to the acquisition proceedings as such. The second contention was that though, right from the beginning, the petitioner was aware of the fact that he could challenge the acquisition on the ground of dispensation of an enquiry under section 5-A of the Land Acquisition Act, he chose not to do so till almost the date on which the Award came to be passed after the adopting of procedure according to law. He submitted that the writ petition deserved to be dismissed on the point of laches, particularly because in the intervening period not only the land stood acquired and vested on the Government on account of the possession taken over by the Government, but also because the funds required for the project have been acquired by the respondent No. 3 Municipal Council from various sources including the Government of India as well as the Agencies of the United Nations and other Public Financial Institutions. It was submitted that if such a project was now struck off, that would involve not only hardship to the people around, but also to the respondent No. 3 Municipal Council, as well as to the tax-payers in general as such because, that would ultimately amount to a huge wastage of public finances. According to him, therefore, in a way the petitioner would be estopped from challenging the acquisition. His next contention in this very context was that out of the three owners whose lands were sought to be acquired, it was only the petitioner who had challenged the acquisition and none else, which showed that the contentions urged on behalf of the petitioner were probably designed to delay the acquisition proceedings.
He submitted that the mere fact that there was some delay on account of certain procedure, which has been already explained, could not mean that there was no urgency in implementing the project in question and that the effort to delay the acquisition proceedings must not allow to succeed. It was submitted, further, that in fact, no prejudice was caused to the petitioner on account of the dispensation of an enquiry under section 5-A and in fact, no such prejudice was ever pleaded on behalf of the petitioner. Lastly, it was submitted that the petitioner had not raised in his petition any material ground to indicate the existence of mala fides for climinating the procedure contained in section 5-A of the Land Acquisition Act. The learned Advocate General submitted that the petition deserved to be dismissed.
12. Mr. Diniz, the learned Counsel for the respondent No. 3, supported all the pleas taken by the Advocate General and submitted further that after the acquisition process was complete according to law and the possession was taken, the work of construction of the road, as indicated in the Notification under section 4 of the Land Acquisition Act, has been undertaken for the management of the garbage and for its appropriate conversion to use it according to scientific principles, the importance of which could hardly be overemphasized.
13. The learned Advocate General was right, in our view, in submitting that the urgency involved in introducing such a project and implementing it as fast as possible was really above board and the happenings in the recent times (e.g. epidemic of plague etc.) have confirmed the urgency involved in the implementation of the project. It is pertinent to note that the project in question was not handled in a haphazard manner. The fact-finding was entrusted to a Committee of Experts and the project was also prepared with the assistance of not only National Experts but International Experts as well. We need not go into the details of the scientific way in which the disposal is sought to be managed hereafter if the project in question is to be implemented. Even when the Notification under section 4 was promulgated and when the Military Authorities and the villagers in the vicinity had raised a grievance about the health hazard involved in the implementation of the project, the Government had got it enquired into through their own Agencies and it was on account of that time, as explained by Mr. Cardozo, the Under Secretary to the Government, in his affidavit-in-reply, that the subsequent action of issuing Notification under section 6 of the Act was delayed to more than 11 months. It is not that any of the respondents had been indiligent in the matter. Diligently enough, the project had been finalized, the decision had been taken and the funds from various sources have been made available to the respondent No. 2. There was a truth in the submission of the learned Advocate General that if such a project is now allowed to be delayed, that by itself, might amount to a further health hazard. Such a delay would really defeat the very object of the project in question.
14. The petitioner contended in his petition that the decision to invoke urgency clause was taken by the Government without having at hand any material justifying the said invocation of the urgency clause. Indeed, the petitioner has submitted this in his petition only on account of the time spent from 1991 to 1994 in finalization of the scheme and the implementation thereof. The manner in which this period of 3 years from 1991 to 1994 came to be used by the Government for studying the problem for devising the solution, for preparing the project and for taking a decision in respect of the implementation of the project and further, for re-considering the project in the light of objections for public grievances raised by Military Authorities and the villagers in the vicinity indicates that all along the Authorities had been diligent and the passage of the time which is complained of on behalf of the petitioner has been satisfactorily explained by the respondents. As against this, the petitioner had hardly any material with himself to plead in his writ petition to lay a foundation for his contention that the decision to invoke the emergency clause was taken without having any material at hand. In this context, it is also advisable to note that the challenge in the present form has come, not from all the owners whose land have been acquired, but only from an owner of the property whose land admeasuring 9186 sq. metres has been acquired out of a large property. Again, it is also important to note that what was sought to be acquired was a pit which appeared on the site in question on account of the working of a quarry and the portion surrounding thereof. Even if such a land was to be used for building purposes, one fails to understand to what extent the same could have been used. As it is, there is hardly any material on record to show that the land in question was so valuable that people were jumping at it to purchase it at higher prices. On the other hand, in the context of the construction of the road itself, it was the contention taken by the petitioner himself at the earlier stages that the need was not genuine because there were no houses at all to whom the approach could be provided by constructing a new road.
15. One of the contentions urged before us by Mr. Rebello was that section 6 of the Land Acquisition Act has been since amended and as per the amended section, if the Notification under section 6 was delayed for more than one year from the date on which the Notification under section 4 was published, the acquisition proceedings by itself would be vitiated. He submitted that bearing in mind the considerations on account of which such amendment has been made in the Act, there was every reason to suppose that when the Notification under section 6 in the present case was delayed for more than 11 months from the date of publication of Notification under section 4 of the Act, that fact, by itself, could indicate that there was, in fact, no diligent activity on the part of the Government. As pointed above, this contention has been factually negatived by the respondent No. 1 by giving appropriate explanation as to why the publication of Notification under section 6 had to be delayed for a period of about 11 months and a few days more. Therefore, the abovesaid contention cannot be sustained.
16. The contention pressed before us by the Advocate General that the petitioner has been guilty of laches in preferring the application also has some force in it. Indeed, soon after the publication of Notification under section 4 of the Land Acquisition Act on 5-1-1993 so as to invoke under section 17 for dispensing with an enquiry under section 5-A of the Act, the petitioner had filed an objection on 1-2-1993 contending that the invocation of the emergency clause was uncalled for. Therefore, the petitioner was aware of his rights at that time. The same contention was again pressed when he filed his reply dated 23-2-1994 to a notice under section 9(1). It is to be noted that though, at that time, the Collector was authorized to take possession of the proposed acquired land within 15 days from the date of the issuance of the notice, the possession was not in fact taken under that emergency clause. It was taken only after the Award dated 31-3-1994 was passed. The present petition was filed on 29-3-1994, i.e., only a couple of days before the Award was passed. When the writ petition came to be filed in this Court, this Court had declined to grant an interim relief, as a result of which, the possession was ultimately taken on 22-8-1994. The land has been since handed over to respondent No. 3 for the execution of the project and in the intervening period, the respondent No. 3 has acquired from various sources, including an international source, the funds required for the project. If, at this stage, the project is allowed to be blocked that would not only mean a loss of public finances but also perpetration of a public nuisance and a health hazard by implicitly allowing to continue the unscientific disposal of the garbage by respondent No. 3 at Kadamba Plateau.
17. This point has been recently considered by this Court in the Writ Petition No. 654 of 1993 decided on 29th March, 1994. On the basis of the rulings in The Ramjas Foundation and others v. Union of India and other, , Hari Singh and others v. State of U.P. and others, , and Tamil Nadu State Housing Board, Madras v. Shammugha Sundara Nadar and others, , this Court had taken a view that a petition of the present type could be dismissed on the ground of laches. In Babu Singh and others v. Union of India and others, , the petition was filed after an inordinate delay of about 5 years from the date of the Award and no explanation was offered why the filing of the writ petition was delayed so much. While considering the question of laches, the Supreme Court observed, "if a person allowed the Government to complete the acquisition proceedings on the basis that the Notification under section 4 and Declaration under section 6 were valid and then attacked the Notification on the grounds which were available to him when the Notification was published, it would be a permit on dilatory tactics". In the present case, true it is that the petitioner had contended before the concerned Authorities that the invocation of the emergency clause was not well warranted, he did not approach this Court though it was realized very shortly after the first say was filed, that the Government was intending to proceed ahead with the implementation of the project. The result was that in the intervening period all the further steps were taken and, in our opinion, if the wheels were again to be turned back at this stage, that could hardly be done without doing considerable harm not only to the public purpose but also to the public finances.
In P. Chinnanna & others v. State of Andhra Pradesh & others, , the Supreme Court had an occasion to consider the question of laches and the consequential losses that could result to the public finances on account of an action sought from the Supreme Court, if the same was allowed. Certain fresh ground regarding the validity of the Notifications under section 6(1) of the Act was examined by the Supreme Court but while doing so, the Supreme Court itself cautiously recorded "such examination cannot, therefore, be understood as laying down that, notwithstanding the lapse of time or laches in raising a legal ground in proceeding under Article 226 of the Constitution or a proceeding under Article 136 of the Constitution, there is an obligation on the part of the Court concerned to examine such fresh ground. In fact, in relation to acquisition proceeding involving acquisition of land for a public purpose, the Court must be averse to entertain writ petitions involving the challenge to such acquisition where there is avoidable delay or laches, since such acquisition, if set aside, would not only involve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good." True it is that the facts on which the Supreme Court made the above observations were very complicated and the fresh ground was allowed to be raised by the Supreme Court for the first time several years after the initial decision of the Court below, but the thrust of the observations made above is clear enough to support the view that we have been taking in the present proceedings as detailed above on the point of laches. In view of the considerations we discussed, we think that the contention raised on behalf of the Government on the point of laches on the part of the petitioner deserved to be sustained. Accordingly, we uphold that contention.
18. As regards the other points urged on behalf of the petitioner, our attention was invited to the decision in Sadruddin Suleman Jhaveri v. J.H. Patwardhan and others, , in which a Division Bench of this Court had pointed out that for exercise of powers under section 17(1) of the Land Acquisition Act (as it stood prior to the amendment), five essential conditions, which were not depending on subjective satisfaction of the Authority, had to be fulfilled and their fulfillment had to be objectively proved. According to section 17(1), as it then was, the five concepts involved therein were : (1) the existence of urgency, (2) a direction from the appropriate Government or the Commissioner, (3) waste or arable land, (4) need for a public purpose and (5) need for a Company. On the facts of the case, the Bench had found that the Authority, who had to consider the relevant question, had not applied his mind to consider whether or not, the land sought to be acquired was an arable land or a waste land. Therefore, the Court had come to the conclusion that there was no application of mind. It was in those circumstances, that the invocation of section 17(1) of the Act was set aside.
19. Later on, in Raja Anand Brahma Shah v. The State of Uttar Pradesh and others, , the Supreme Court itself held that the opinion of the State Government for the purposes of section 17(4) of the Land Acquisition Act could be challenged as ultra vires in a Court of law only if it could be shown that the State Government had never applied its mind to the matter or that the action of the State Government was mala fide. Similar view was expressed in Rajbali and others v. State of Uttar Pradesh and others, A.I.R. 1983 All. 78, observing that the decision of the State Government, whether or not, urgency existed could not be questioned in any Court provided the Government had applied its mind and acted in good faith. It is only in a case of mala fide exercise of power that the Court can interfere. In the matter which was before the Supreme Court, on facts, the Supreme Court has held that non-application of mind on the part of the Government Authority was proved because the land was a forest land and not arable land. Consequently, the Supreme Court did not hesitate in setting aside the acquisition, though vesting of the land in the Government had already taken place in that case.
20. In Narayan Govind Gavate etc. v. State of Maharashtra and others, , the land was acquired for development of industrial areas and residential tenements for persons to live on industrial estates. This was considered as a public purpose by the Government in the case of acquisitions which were sought to be made in the year 1965. The Supreme Court found that, from the statement of the public purposes in the relevant notification, for which the land was to be acquired indicated the absence of any such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under section 5-A of the Act. While deciding the case, the Supreme Court pointed out that "the purpose of section 17(4) of the Act is, obviously, not merely to confine action under it to waste and arable land but also to situations in which an inquiry under section 5-A will serve no useful purpose or, for some overriding reason, it should be dispensed with." The Supreme Court pointed out that it was not just the existence of an urgency but the need to dispense with the enquiry under section 5-A which had to be considered. Subsequently, in State of U.P. v. Smt. Pista Devi & others, , where the lands were acquired for housing purposes, the Supreme Court observed that the Court could take judicial notice of the fact that a provision of housing accommodation in these days had become a matter of national urgency and that in the circumstances, it could not be said that the decision of the Government in resorting to section 17(1) and dispensing with the compliance of section 5-A was unwarranted.
21. Considering this legal position with reference to the facts of the present case, we find that, in the present case, there is nothing on record to indicate that in taking the decision to dispense with the enquiry under section 5-A of the Land Acquisition Act, the Authorities of the respondent Government had acted mala fide or that they were guilty of non-application of mind. Indeed, on the other hand, the decision was taken in public interest, with due application of mind and after considering all the facts placed before the Government by a Committee of Experts, and particularly, those indicating need or an urgent action. Again, even when, after issuance of Notification under section 4, certain objections were taken by the Military Authorities and the villagers on the ground of public nuisance, the Government had caused an enquiry to be made and had ultimately decided to proceed with the implementation of the project and had then issued the Notification under section 6 of the Land Acquisition Act. Under such circumstances, we are unable to say that the invocation of the emergency clause in the present case was unwarranted or that, on that ground, the acquisition proceedings were liable to be set aside. As regards the lapse of time from 1991 (i.e. setting up of the Experts' Committee) to January, 1993 (issuance of Notification under section 4), we have already found that factually the time was properly spent in collecting the data and in preparing the project report. In addition, our attention was invited in this context to the decision in Deepak Pahwa etc. v. Lt. Governor of Delhi and others, , where it was held that the pre-notification period does not ipso facto render the invocation of urgency provision void.
22. Thus, considering the case from all the angles, we do not think that the grievance of the petitioner raised in this petition deserved to be sustained. This petition must be dismissed. Accordingly, we dismiss the same but with no order as to costs. The Rule is discharged accordingly.