Orissa High Court
Sk. Ansar Alli And Anr. vs State Of Orissa And Ors. on 12 December, 2003
Equivalent citations: 2004(I)OLR177, AIR 2005 (NOC) 79 (ORI), 2004 A I H C 3827, (2004) 1 ORISSA LR 177, (2004) 2 LACC 558
Author: A.K. Patnaik
Bench: A.K. Patnaik, M. Papanna
JUDGMENT A.K. Patnaik, J.
1. The case of the petitioners in this writ petition is that they are the owners of land measuring Ac.0.012 decimals in Plot No. 301, Khata No. 151. Mouza-Jagannathpur, Tahsil - Mahanga in the district of Cuttack and they have constructed a residential house on the said land. Land Acquisition Case No. 17 of 1997 was initiated under the Land Acquisition Act, 1894 (for short, "the Act") for acquisition of the said land. The petitioners submitted their objection to the acquisition of the said land stating that they have constructed their residential house by incurring huge expenses, but the authorities did not pay any heed to the said objection. Thereafter notification under Sections 4 and 17 of the Act was issued on 4.5.1999 stating that the land measuring more or less Ac.2.23 decimals described in the schedule to the notification was urgently needed for construction of approach road to the High Level (for short, "H.L.") bridge over the river Badagenguti and that the provisions of Section 5-A of the Act will not apply to the land. Aggrieved, the petitioners have filed this writ petition with a prayer to quash the notification dated 4.5.1999 for acquisition of the said land.
2. A counter-affidavit has been filed by opposite party No. 2 Land Acquisition Officer, Civil, Collectorate, Cuttack stating therein that the H.L. bridge over the river Badagenguti was constructed but could not be put to use by the public due to non-construction of an approach road and the Executive Engineer, R & B Division, Kendrapara submitted a proposal to the Land Acquisition Officer for acquisition of Ac.2.23 decimals of land for construction of the approach road and notification under Section 4(1) with emergency Clause of Section 17 of the Act was issued by the Government of Orissa, Revenue Department, Bhubaneswar, on 20.3.1999 in respect of the aforesaid land dispensing with the provisions of Section 5-A of the Act. In the said counter-affidavit, it is further stated that the objections of the petitioners to the acquisition of the land submitted to the Collector were not taken into consideration as the land was to be acquired for construction of approach road to H.L. bridge already constructed over the river Badagenguti on application of emergency provisions of Section 17 of the Act dispensing with the requirements of Section 5-A of the Act and the declaration in respect of the land under Section 6 of the Act was issued on 20.12.1999 and the petitioners shall be paid compensation after the award is made under Section 11 of the Act.
3. Mr. S.S. Das, learned counsel for the petitioners, submitted that the fact that the land acquisition case is numbered as L. A. Case No. 17 of 1997 would show that the proposal for acquisition of the land of the petitioners was initiated way back in 1997 whereas the notification under Sections 4 and 17 of the Act was issued on 20.3.1999 after a gap of almost two years, he vehemently argued that this would show that there was no need to invoke the emergency provisions of Section 17 of the Act and dispense with the requirements of Section 5-A of the Act. He argued that if the emergency provisions of Section 17 of the Act had not been invoked and the provisions of Section 5-A of the Act had not been dispensed with then the objections of the petitioners to the acquisition of the land would have been taken into consideration and the petitioners would have been heard on their objections to the acquisition of the land under Section 5-A of the Act. He submitted that a valuable right has been conferred under Section 5-A of the Act on the person interested in the land to submit his objection to the acquisition of the land and such a valuable right cannot be taken away by the State in a casual manner by invoking the emergency provisions of Section 17 of the Act. In support of this submission, he cited the decisions of this Court in Sk. Abdul Hamid and Anr. v. The Land Acquisition Collector, Balasore and Anr. 1989 (I) O.L.R. 254 and in Chandramani Sahu and Ors. v. State of Orissa and Ors., A.I.R. 1996 Orissa 205. He also cited the decision in Narayan Govind Gavate v. State of Maharashtra and Ors., A.I.R. 1977 S.C. 183, in which the Supreme Court has held that while deciding whether or not to invoke the emergency provisions of Section 17 for the Act so as to dispense with the requirements of Section 5-A of the Act, the mind of the authority has to be applied to the question as to whether there is an urgency of such a nature that even summary proceedings under Section 5-A should be eliminated and it-is not just the existence of an urgency but also the need to dispense with the requirements of Section 5-A of the Act which has to be considered. Mr Das argued that in the present case the authority did not apply its mind to the aforesaid question as to whether the urgency for acquisition of the land of the petitioners was of such a nature as to justify dispensing with an inquiry under Section 5-A of the Act. He argued that since the petitioners had made objections to the acquisition of land, the authority could have made a summary inquiry under Section 5-A of the Act and completed the inquiry expeditious'ly before finally taking a decision to acquire the land.
4. Mr Debashis Das, learned Additional Government Advocate, on the other hand, submitted that although the proposal for acquisition of the land was initiated in 1997, the notification under Sections 4 and 17 of the Act was issued on 20.3.1999 and this pre-notification delay cannot vitiate the invocation of the emergency provisions of Section 17 of the Act so as to dispense with the requirement of Section 5A of the Act. In support of his submission, he cited the decision of the Supreme Court in Deepak Pahwa, etc. v. Lt. Governor of Delhi and Ors., A.I.R. 1984 S.C. 1721 and the decision of this Court in Dr. Madan Mohan Pradhan v. The Land Acquisition Officer (Civil), Cuttack and Ors.. 1990 (II) O.L.R. 584. He relied on the averments in the counter affidavit as well as the records produced before this Court to show that the notification invoking the emergency provisions of Section 17 of the Act was absolutely justified in the facts and circumstances of the case.
5. Mr. D. K. Dey, learned counsel appearing for the intervenor opposite parties 4 to 9 while supporting the aforesaid submissions of Mr. Debashis Das, contended that this Court in O.J.C. No. 1463 of 1996 issued a writ directing the State Government to carry out the plan for construction of the bridge and the State Government has now implemented the said directions of this Court and constructed the H.L. bridge over the river Badagenguti connecting the Mahanga area with the rest of the State, but the approach road to the bridge could not be constructed on account of this litigation and interim orders passed by this Court in this case on 22.11.2000 to the effect that the petitioners shall not be dispossessed from the disputed land. Mr Dey relied on the observations of the Supreme Court in Chameli Singh and Ors. v. State of U.P. and Anr., A.I.R. 1996 S.C. 1051, that lethargy on the part of the officers for pre and post-notification delay would not render the exercise of power to invoke urgency Clause invalid and when the Government on the basis of the material, constitutional and international obligation, formed its opinion of urgency, the Court, not being an appellate, forum, would not disturb the finding unless the Court conclusively finds the exercise of power mala fide.
6. We have perused the records produced before us and we find that the Executive Engineer, Kendrapara (R. & B.) Division, in his letter dated 16th of July, 1997 to the Land Acquisition Officer submitted a proposal for acquisition of Ac.2,29 decimals of land in village Jagannathpur for the left and right approach road to H.L. bridge on the river Badagenguti at 23rd Kilometers on Salepur-Chhatia road and after some correspondence with the office of the Revenue Divisional Commissioner, Central Division, Cuttack and the Government of Orissa in the Revenue and Excise Department, the Executive Engineer, Kendrapara (R. & B.) Division wrote to the Land Acquisition Officer (Civil), Cuttack for acquisition of Ac. 2.23 decimals instead of Ac.2.29 decimals of land by letter dated 22nd of February, 1999 and thereafter, the notification dated 20.3.1999 was issued under Sections 4(1) and Section 17 of the Act in respect of Ac. 2.23 decimals of land in village Jagannathpur including Ac.0.12 decimals of land of the petitioners. This is thus a case where there was a delay of one year and nine months from the date when the initial proposal was made by the Executive Engineer for acquisition of the land till the notification was issued under Sections 4(1) and 17(4) of the Act. In the facts and circumstances of the case, it is clear that the necessity of invoking the emergency provisions of Section 17 was on account of the facts that while the H.L. bridge over the river Badagenguti had been constructed, there was no approach road to the bridge and there has already been considerable delay of one year and nine months in acquiring the land for the said public purpose. In Deepak Pahwa, etc. v. Lt. Governor of Delhi and Ors. (supra), the Supreme Court has held that very often the delay itself makes the problem more and more acute and increases the necessity for urgency for acquisition and it is therefore not possible to hold that mere pre-notification delay would render the notification of urgency provision void. Similarly, in Chameli Singh and Ors. v. State of U.P. and Anr. (supra) the Supreme Court held that delay itself accelerates urgency and larger the delay, the greater the urgency. The Supreme Court further held that the lethargy on the part of the officers for the pre and post-notification delay would not render the exercise of power to invoke the urgency provision invalid on that account.
7. In the said case of Chameli Singh, the Supreme Court reiterated the settled position of law that the opinion of urgency formed by the appropriate Government to take immediate possession is a subjective conclusion based on materials placed before it and the Court, not being an appellate forum, would not disturb the opinion of the Government regarding such urgency unless the Court conclusively finds the exercise of power to be mala fide or colourable. In Narayan Govind Gavate v. State of Maharashtra and Ors. (supra) cited by Mr S.S. Das, learned counsel for the petitioners, the Supreme Court found that the land in that case was being acquired for industrial and residential purposes and the Supreme Court held that this in itself on the face of it does not call for any emergency acquisition so as to dispense with an inquiry under Section 5-A of the Act. In Sk. Abdul Hamid and Anr. v. The Land Acquisition Collector, Balasore and Anr. (supra) cited by Mr Das, learned counsel for the petitioners, a Division Bench of this Court found that Ac. 0.065 decimals of land were sought to be acquired by the Notified Area Council, Bhadrak for excavation of public drain for passage of excess rain water of certain area within Bhadrak and the Division Bench of this Court following the decision of the Supreme Court in the case of Narayan Govind Gavate (supra) held that the invocation of the emergency provision so as to dispense with the hearing of objection under Section 5-A of the Act was not justified in the facts of that case. Similarly, in Chandramani Sahu and Ors. v. State of Orissa and Ors. (supra) on which reliance was placed by Mr. S. S. Das, learned counsel for the petitioners, 25904 acres of land were sought to be acquired for construction of an industrial village near Panakpalli in the district of Ganjam and in the facts and circumstances of that case the Court quashed the notification under Section 17(4) of the Act dispensing with the notification under Section 5-A of the Act. In cases in which land is sought to be required for residential or industrial purposes or for a public drain, the very nature of the purpose for which the acquisition is made will not call for invoking the emergency provisions of Section 17 of the Act save in exceptional cases. But in the present case, the land of the petitioners is sought to be acquired for construction of approach road to H.L. bridge over the river Badagenguti which has already been constructed and the purpose for which the acquisition is to be made is so urgent in nature that the Government has formed an opinion that the emergency provisions of Section 17 of the Act should be invoked and the land should be acquired immediately dispensing with hearing or inquiry under Section 5-A of the Act. We cannot therefore hold that the aforesaid opinion of the Government regarding urgency is either vitiated by mala fide or colourable exercise of power so as to call for interference under Article 226 of the Constitution.
8. Mr. S. S. Das, learned counsel for the petitioners, next submitted that a reading of the provisions of the Act would show that action under Sub-section (1) of Section 17 of the Act can be taken only after notification under Section 4(1) and publication of declaration under Section 6 of the Act, but in this case the notification under Section 17(1) of the Act has been issued on 20.3.1999 whereas a declaration under Section 6 of the Act has been issued thereafter on 20.12.1999 and for this reason, the acquisition of the land of the petitioners is liable to be quashed by this Court. We are unable to accept this submission of Mr. S. S. Das. Sub-sections (1) and (4) of Section 17 are quoted herein below :
"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 a public purpose. Such land shall thereupon vest absolutely in the Government, free fromall encumbrances.
(2) & (3) xx xx xx (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of Subsection (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 land at any time after the date of the publication of the notification under Section 4, Sub-section (1)."
A plain reading of Sub-section (1) of Section 17 of the Act makes it clear that the said provision empowers, in case of emergency whenever the appropriate Government so directs, the Collector to take possession of the land for the need of the pubic purpose on expiration of fifteen days from the date of publication of the notice under Section 9(1) of the Act, whereas Sub-section (4) of Section 17 provides that in the case of any land to which in the opinion of the appropriate Government the provision of Sub-section (1) of Section 17 is 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 publication of the notification under Section 4(1) of the Act. Thus, the chronological order in which the different steps to be taken for acquisition of land in case of urgency, are : (1) opinion of the State Government that land has to be acquired urgently, (2) notification ot the State Government under Sub-section (4) of Section 17 directing that the provisions of Section 5-A shall not apply, (3) notification under Section 4(1) of the Act, (4) declaration under Section 6 of the Act in respect of the land, (5) publication of notice under Section 9(1) of the Act, and (6) taking possession of the land by the Collector under Sub-section (1) of Section 17 of the Act. In the present case, by the notification dated 20.3.1999 the State Government has not taken possession of the land under Sub-section (1) of Section 17 but has expressed its opinion that the land has to be acquired urgently and directed that provisions of Section 5-A of the Act shall not apply in respect of the land and has also issued a notification under Section 4(1) of the Act. Thereafter declaration has been issued under Section 6 of the Act in respect of the land on 20.12.1999. The records further indicate that notice under Section 9(1) of the Act has been published on 6.11.2000. After publication of the said notice, possession of the land measuring Ac. 0.211 decimals out of Ac.2.23 decimals has been handed over to the Executive Engineer, Kendrapara (R & B) Division, but the possession of the land of the petitioners could not be taken over on account of the interim order dated 22.11.2000 passed in Misc. Case No. 11935 of 2000 arising out of this writ petition.
9. Mr. S. S. Das, learned counsel for the petitioners. finally submitted that a plain reading of Sub-section (1) of Section 4 of the Act makes it clear that the notification under Sub-section (1) of Section 4 has to be published in the Official Gazette and public notice of the substance of the notification has to be given at convenient places in the locality. He cited the decision of the Supreme Court in Deepak Pahwa, etc. v. Lt. Governor of Delhi and Ors. (supra) for the proposition that such publication in the Official Gazette and public notice in the locality are mandatory and non-compliance of either of the aforesaid two requisites would render the land acquisition proceedings void. He argued that in the present case, no such notification under Section 4(1) of the Act has been published in the Official Gazette and no such public notice containing the substance of the notification has been given in the locality concerned. But we find that the notification under Section 4(1) of the Act has been published in the Orissa Gazette (Extraordinary) No. 540 dated April 5, 1999 and public notice of the substance of the notification under Section 4(1) of the Act has been given in the village on 17.1.2000 and the petitioner No. 1 appears to have also signed at the back of the said public notice given in the village on 17.1.2000. There is therefore no merit in the last contention made on behalf of the petitioners.
10. In the result, the writ petition is dismissed and the interim order passed by this Court on 22.11.2000 in Misc. Case No. 11935 of 2000 is vacated. Considering the facts and circumstances of the case, the parties shall bear their own costs.