Madhya Pradesh High Court
Yogesh Neema And Ors. And ... vs State Of M.P. And Ors. on 28 March, 2008
Equivalent citations: 2008(2)MPHT337
Bench: Chief Justice, Prakash Shrivastava
JUDGMENT A.K. Patnaik, C.J.
1. The two appeals have been filed under Section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the orders dated 14th January, 2008 passed by the learned Single Judge in W.P. No. 16250/2007 and W.P. No. 16752/2007. The material facts briefly are that for the Onkareshwar Dam, lands of several villagers were acquired and the displaced villagers were required to be rehabilitated in other localities. A Task Force was constituted for identifying the localities in which the displaced villagers were to be rehabilitated. On the basis of the recommendation of the Task Force, lands were acquired for rehabilitation of the displaced villagers and rehabilitation sites were established. One of the rehabilitation sites, namely Inpun rehabilitation site, as initially planned, was to comprise of 1200 plots, but more and more displaced villagers preferred plots at this Inpun rehabilitation site because amenities like Primary, Middle and High Schools, Panchayat Bhawan etc. were available in this rehabilitation site. The Task Force therefore recommended acquisition of 31.70 hectares of additional land for extension of the Inpun rehabilitation site. On the basis of the recommendation of the Task Force, the Executive Engineer, Narmada Development Division No. 32, Badwah recommended for immediate acquisition of additional land in his proposal dated 29-10-2007. Thereafter, 17.52 hectares of land were acquired by notification dated 7-11-2007 issued under Section 4 (1) of the Land Acquisition Act, 1894 (for short 'the Act') in Revenue Case No. 30/A-82/06-07 but the remaining additional land could not be acquired because of objections of the land owners before issuance of a notification under Section 4 of the Act. The Collector, East Nimar, Khandwa District in his letter dated 7-11-2007 sent a proposal to the Commissioner, Indore Division, M.P. for immediate acquisition of 11.04 hectares of land and the properties standing thereon and for permission for acquisition under Section 17(1) of the Act and for a separate permission to dispense with the provisions of Section 5-Aof the Act by invoking powers under Section 17(4) of the Act and for issuance of a declaration under Section 6 of the Act immediately after acquisition under Section 4 (1) of the Act. The Commissioner, Indore Division then issued an order dated 15-11-2007 granting permission to Collector, District Khandwa under Section 17 of the Act for acquisition of agricultural and measuring 11.04 hectares in Village Inpun, Tehsil Khandwa, District Khandwa and, thereafter, a declaration was issued on 26-11-2007 in respect of the land which was sought to be acquired. The appellants who were owners of land covered by the order dated 15-11-2007 issued under Sections 17 and the declaration dated 26-11-2007 under Section 6 of the Act filed two writ petitions under Article 226 of the Constitution numbered as W.P. No. 16250/2007 and W.P. No. 16752/2007. The learned Single Judge initially directed maintenance of status quo regarding possession of land by both the parties, but after hearing the parties dismissed the writ petitions by the impugned order dated 14th January, 2008. Aggrieved, the appellants have filed the two appeals.
2. Mr. Hemant Shrivastava, learned Counsel for the appellants submitted that the learned Single Judge has dismissed the writ petitions filed by the appellants relying on Ramniklal N. Bhutta v. State of Maharashtra , in which the Supreme Court has taken a view that in land acquisition matters, the High Court will not exercise its jurisdiction under Article 226 of the Constitution merely on the making out of the legal point but only for furtherance of interests of justice and that the Court will have to weigh the public interest vis-a-vis the private interest while exercising its discretionary powers under Article 226 of the Constitution. He submitted that the learned Single Judge has also relied on the observations of the Supreme Court in First Land Acquisition Collector v. Nirodhi Prakash , that the question of urgency and acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the State Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. He submitted that the learned Single Judge has lost sight of the judgments of Supreme Court in which it has been held that the right to be heard in an inquiry under Section 5-A of the Act is a valuable right of a land owner and this valuable right cannot be dispensed with arbitrarily and without application of mind by the Government under Section 17 (4) of the Act to the question whether it is necessary in a particular case of acquisition of land to dispense with the inquiry under Section 5-A of the Act. In support of this contention, he relied on decisions of the Supreme Court in Nandeshwar Prasad and Ors. v. U.P. Government and Ors. , Raja Anand Brahma Shah v. State of U.P. and Ors. , Ishwarlal Girdharlal Joshi v. State of Gujarat and Anr. , Narayan Govind Gavale and Ors. v. State of Maharashtra and Ors. , Om Prakash and Anr. v. State of U.P. and Ors. , Union of India and Ors. v. Mukesh Hans , Union of India and Ors. v. Krishan Lal Arneja and Ors. , Union of India and Ors. v. Deepak Bhardwaj and Ors. AIR 2004 SC 3289. He further submitted that in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and Ors. , the Supreme Court has held that the right to make objections under Section 5-A of the Act is akin to a fundamental right having regard to Article 300-A of the Constitution and therefore this right cannot be easily dispensed with by a mechanical order passed by the Government under Section 17 (4) of the Act. He submitted that the view taken by the learned Single Judge in the impugned order that the Court cannot examine in a judicial review the decision of the Government to invoke the provisions of Sub-sections (1) and (4) of Section 17 of the Act and dispense with the inquiry under Section 5-A of the Act is not correct in law.
3. Mr. R.N. Singh, learned Advocate General, appearing for the respondents, on the other hand, submitted that the Onkareshwar Project is an important power and irrigation time bound project of the Government of Madhya Pradesh for which land of various villagers had to be acquired and the villagers, many of whom are Scheduled Castes, had to be rehabilitated in rehabilitation sites as early as possible by acquiring and developing land. He submitted relying on the returns filed by the respondents that at the Inpun rehabilitation site developed for rehabilitation of the displaced villagers, there are amenities like Primary, Middle and High Schools, Panchayat Bhawan etc. and for this reason the displaced villagers have shown their preference for the Inpun rehabilitation site and therefore additional land was recommended to be acquired by the Task Force. He submitted that on the basis of the recommendation of the Task Force, the Executive Engineer, Narmada Development Division No. 32, Badwah recommended for immediate acquisition of additional land rehabilitation of the displaced villagers and the Collector sent a proposal dated 7-11-2007 for immediate acquisition of land measuring 11.04 hectares and also sought separate permission for invocation of Section 17 (1) of the Act and Section 17 (4) of the Act and the Commissioner, Indore Division exercising powers of the Government delegated to him issued the order dated 15-11-2007 for acquisition of land dispensing with the inquiry under Section 5-A of the Act in accordance with Section 17 (4) of the Act. He submitted that there was total application of mind to the urgency of acquiring additional land in Inpun rehabilitation site and to the need for dispensing with the inquiry under Section 5-A of the Act and therefore this is not a fit case in which High Court in exercise of its powers under Article 226 of the Constitution should interfere with the decision of the Government to acquire the additional land by dispensing with the inquiry under Section 5-A of the Act. He submitted that the learned Single Judge was therefore right in dismissing the writ petitions by relying on the judgments of the Apex Court in Ramniklal N. Bhutta v. State of Maharashtra and First Land Acquisition Collector v. Nirodhi Prakash (supra).
4. Sub-sections (1) and (4) of Section 17 of the Act are quoted herein below:
17. (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.
(2) *** *** *** *** *** (3) *** *** *** *** *** (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 publication of the notification under Section 4, Sub-section (1).
5. Sub-sections (1) and (4) of Section 17 of the Act arose for interpretation in Union of India v. Mukesh Hansh (supra), and the Supreme Court after considering its earlier decisions held that mere existence of urgency under Section 17 (1) of the Act though is a condition precedent for invoking Section 17 (4) by itself is not sufficient to direct the dispensation of Section 5-A inquiry and the Government must form a clear opinion that alongwith the existence of such urgency, there is also a need for dispensing with the Section 5-A inquiry. In the aforesaid case, in almost all the notings in the file, there was no reference to the need for invoking Section 17 (4) of the Act and these facts coupled with the findings of the High Court led the Supreme Court to hold that the decision of the Lieutenant Governor to dispense with Section 5-A inquiry suffered from the vice of non-application of mind.
6. Sub-sections (1) and (4) of Section 17 of the Act were again interpreted in Union of India and Ors. v. Krishanlal Arneja (supra), and the Supreme Court relying upon its earlier decisions held that even when there is no statement about the existence of urgency in the notification issued under Section 4 (1) read with Section 17 (1) of the Act, the Government could justify the urgency and the need to dispense with the enquiry under Section 5-A by invoking Section 17 (4) by reference to the surrounding circumstances, the nature of the public purpose, the real urgency that the situation demands etc. and the records of the case. The Supreme Court further held that in every case of urgency for acquisition of land covered under Sub-section (1) of Section 17 of the Act the normal procedure laid down in Section 5-A cannot be dispensed with and it is only when the Government after application of mind finds that there is need to dispense with the inquiry under Section 5-A of the Act that such a direction can be given by the Government under Section 17 (4) of the Act. In this case, the Supreme Court found that even after the Government took a decision to acquire the property in question, for almost two years no proceedings were initiated to acquire the property and all of a sudden the property was sought to be acquired by dispensing with the valuable right of the owners under Section 5-A of the Act.
7. Regarding the scope of judicial review in respect of orders under Sections 17(1) and 17 (4) of the Act, the Supreme Court observed in First Land Acquisition Collector v. Nirodhi Prakash Gangoli and Ors. (supra):
The question of urgency of an acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers under Sections 17 (1) and (4) of the Act, and issues notification accordingly, the same should not be interfered with by the Court unless the Court comes to the conclusion that the Appropriate Authority had not applied its mind to the relevant factors or that the decision has been taken by the Appropriate Authority malafide.
8. Keeping in mind the law laid down by the Supreme Court in the aforesaid decision, we may now examine the facts of the present case. The English Translation of the letter dated 7-11-2007 of the Collector and the order dated 15-11-2007 passed by the Commissioner on behalf of the Government under Section 17(1) and (4) of the Act are extracted herein below:
Office of the Collector, District: East Nimar, Khandwa (MP) No. .../13990/Land Acquisition/07, Khandwa dated 7-11-2007 To, The Commissioner, Indore Division, Indore (MP).
Sub: For permission to exercise urgency clause under Section 17 in the Land Acquisition cases of Village Inpun, Tehsil Khandwa, District Khandwa.
(1) Under the Omakareshwar Project, for the purpose of extension of the rehabilitation site Inpun, the proposals for immediate acquisition of 29.93 hectares of land comprised in 33 different survey numbers have been sent by the Executive Engineer, Narmada Development Division No. 32, Barwah. On examination of the proposals so presented it is found that the proceeding for acquisition of 17.52 hectares of land comprised in 21 survey numbers has been taken up in Revenue Case No. 30/A-82/06-07 in which the Notification under Section 4 (1) of the Act has been published at specified places and the declaration under Section 6 of the Act is being sent for publication.
(2) As against the total proposed area of 29.93 hectares sought to be acquired as mentioned in Para 1, the proceedings for acquisition of 17.52 hectares of land is already in progress, since before. In such a condition only 29.93 - 17.52 = 12.41 hectares of land is left for consideration. In this connection, on examination it has been found that 1.37 hectares of land comprised in 5 different survey numbers has already been acquired but the Sub Divisional Officer and the Land Acquisition Officer for the purpose of construction of a canal of Indira Sagar Project. Therefore, only 12.41 - 1.37 = 11.04 hectares of land remains to be considered for acquisition. Table No. 1 is enclosed and presented for clarification of the situation in Para 1 and Para 2.
(3) Therefore, in pursuance to the proposal received from Executive Engineer, Narmada Development Division No. 32, Barwah, it is in the propriety of things to immediately acquire 11.04 hectares of land and other properties thereupon, as comprised in Survey Nos. 1 to 12 mentioned in the Table.
(4) The Executive Engineer has requested for early acquisition of land and the properties thereupon in exercise of Section 17(1), 17 (4) of the Land Acquisition Act, 1894.
(5) Therefore, it is requested that permission for application of Section 17(1) may be granted for early acquisition of agriculture land and the properties thereupon as mentioned in Para 3.
(6) It is also requested that a separate permission may be granted under Section 17 (4) so that without following the provisions of Section 5-A, the declaration under Section 6 may be issued immediately after the issuance of notification under Section 4(1).
(7) As per above, it is requested that separate permission may be granted for 17 (1), 17 (4) as in aforesaid Paras (5) and (6).
Encl. : Land Acquisition Sd/- 7-11-07
Proposals, Village Inpun, S.B. Singh, Collector,
(Agriculture Land) enclosed East Nimar,
table. Khandwa (M.P.)
Office of the Commissioner, Indore Division, Indore
No. .../1599/5/Court/07, Indore, dated 15-11-2007.
To,
The Collector,
District Khandwa (M.P.)
Subject: For permission to exercise urgency clause under Section 17 in the Land Acquisition cases of Village Inpun, Tehsil Khandwa, District Khandwa.
Ref. : Your Letter No. 13990/Land Acquisition/07, dated 7-11-2007.
As per the aforesaid subject, kindly peruse the letter under reference.
(2) By the letter under reference, in respect of 11.04 hectares of agriculture land comprised in 12 Survey Numbers in Village Inpun, Tehsil Khandwa, District Khandwa, you have sought for separate permission under Section 17 (1) and 17 (4) of the Land Acquisition Act, 1894, for development of rehabilitation site for the oustees of Omkareshwar Project, as per the proposal of Executive Engineer, Narmada Development Division No. 32, Barwaha and it has been shown in the proposal so presented that the proceeding for acquisition of 17.52 hectares of land comprised in 21 survey numbers is underway in Revenue Case No. 30/A-82/06-07 in which Notification under Section 4 (1) has been published at specified places, and that the declaration under Section 6 of the Act has been sent for publication. It is also represented that against the total proposed area for acquisition, i.e., 29.93 hectares, the proceeding for acquisition of 17.52 hectares of land is already underway, therefore, in such a situation only 29.93 - 17.52 - 12.41 hectare of land remains for consideration. And as 1.37 hectares of land is shown to have been acquired under 5 different survey numbers for construction of canal of Indira Sagar Project, therefore, only 12.41 -1.37 - 11.04 hectares of land remains to be considered for acquisition.
Therefore, in pursuance to your proposal, for the agriculture land of total 12 survey numbers, total area 11.04 hectares in Village Inpun, Tehsil Khandwa, District Khandwa, permission is granted under Section 17 of the Land Acquisition Act, 1894.
Encl. : As per above. Deputy Commissioner
(Approved by Commissioner) (Revenue)
For Commissioner,
Indore Division, Indore.
9. It will be clear from the proposal contained in the letter dated 7-11 -2007 of the Collector, extracted above, that the purpose for which the land was being acquired was extension of the rehabilitation site at Inpun for rehabilitation of displaced persons of the Omkareshwar Project. The Omkareshwar Project is a dam being constructed for irrigation as well as generation of power in the State of Madhya Pradesh and is a time bound project and law is well settled that before submergence of any village by the dam is allowed, the rehabilitation of the people of the village must be completed. Thus, the nature of the public purpose for which the land was acquired itself warranted invocation of the urgency clause under Section 17 (1) of the Act and for this reason, the Collector had made-request in the proposal for permission for application of Section 17 (1) of the Act for early acquisition of the agricultural land and the properties situated thereon.
10. It further appears from the proposal contained in the letter dated 7-11-2007 of the Collector that permission was requested not only for application of Section 17 (1) of the Act but also under Section 17 (4) of the Act so that the provisions of Section 5-A of the Act were dispensed with and the declaration under Section 6 could be issued immediately after issuance of notification under Section 4 (1) of the Act. The reason for invocation of the provisions of Section 17 (4) of the Act given in Paragraph 7 of the reply filed by the respondents in W.A. No. 129 of 2008 is that before acquisition of the said land, certain objections and complaints were submitted by the land owners to the respondents on 27-4-2007 before issuance of notification under Section 4 of the Act on 7-11-2007 and hence the acquisition of the land for the urgent purpose of rehabilitating the villagers at the Inpun rehabilitation site would be delayed. Mr. Shrivastava argued that this cannot be a reason for dispensing with the enquiry under Section 5-A of the Act, particularly when for part of the land acquired for the same purpose, the provisions of Section 5-A of the Act were not dispensed with. We are unable to accept this argument of Mr. Shrivastava. If part of the land is acquired without any objections from the land owners speedily soon after issuance of notification under Section 4 (1) of the Act but the acquisition of other part of the land was being delayed because of the objections of the land owners, to expedite the acquisition for the urgent purpose and to avoid the delay of the enquiry under Section 5-A of the Act, the Government could invoke the provisions of Section 17 (4) of the Act and dispense with the enquiry under Section 5-A of the Act. The proposal contained in the letter dated 7-11-2007 of the Collector and the order dated 15-11-2007 passed by the Commissioner on behalf of the Government as well as the records of this case would thus show clear application of mind to not only the need for invoking the urgency clause under Section 17 (1) of the Act but also to the necessity of dispensing with the enquiry under Section 5-A of the Act in exercise of powers under Section 17 (4) of the Act. Hence, the requirements of Sub-sections (1) and (4) of Section 17 of the Act, as explained by the Supreme Court in the cases of Union of India v. Mukesh Hans and Union of India v. Krishanlal Arneja (supra), cited by Mr. Shrivastava are met and the contention of the appellants that invocation of Section 17(1) and (4) of the Act was vitiated by non-application of mind or by malafide is thus misconceived.
11. Mr. Shrivastava submitted that there were Government lands near the Inpun rehabilitation side which could be utilized by the Government for the purpose of rehabilitation at Inpun site and therefore, acquisition of the land of the appellants was unreasonable, arbitrary and in violation of fundamental rights of the appellants as enshrined under Articles 14, 19 and 21 of the Constitution of India. He further submitted that the reason given for the acquisition of the land of the appellants that more and more oustees preferred sites at Inpun rehabilitation site cannot be accepted by the Court. We are afraid, the question whether other Government land was available and could be utilized for extension of the Inpun rehabilitation site and whether Government should not acquire land only because oustees preferred lands in the Inpun rehabilitation site are matters of the subjective satisfaction of the Government. So long as the acquisition of land is for a public purpose and the urgency for the acquisition of land for public purpose was such as to require not only invocation of the urgency clause under Section 17 (1) but also dispensing with enquiry under Section 5-A in exercise of the powers under Section 17 (4) of the Act, the Court cannot interfere with the decision of the Government to acquire the land urgently by exercising its powers under Sections 17 (1) and 17 (4) of the Act. As has been held by the Supreme Court in First Land Acquisition Collector v. Nirodhi Prakash Ganguli and Ors. (supra), once the Court finds that the Government has applied its mind to need for invoking both Sub-sections (1) and (4) of Section 17 of the Act and there is no malafide in such a decision of the Government, the Court in exercise of its powers under Article 226 of the Constitution will not interfere with such a decision of the Government. We, therefore, do not find any merit in these appeals and we accordingly dismiss the same and vacate the interim orders of status quo, dated 5-2-2008. No order as to costs.