Indian Kanoon - Search engine for Indian Law

3.For the purpose of convenience, we refer to the facts in W.A.2681 of 2009 and W.P.(C)No.22883 of 2009 from which the writ appeal arises. However, factual difference, if any, will be referred to at the appropriate place.

4.The appellant in W.A.2681 of 2009 filed W.P.(C) No.22883 of 2009. He has lands in Kasaragode District. Ext.P2 is a notification issued under Section 4(1) read with Section 17(4) of the Act. The purpose of the acquisition as per notification was for the rehabilitation of Tsunami victims affected or likely to be affected. According to the appellants, the land acquisition proceedings were initiated in  WA2681/09&c.cases February, 2009 for rehabilitation of the people affected in Tsunami attack happened on 26.12.2004. According to them, the District of Kasaragode was not at all affected by Tsunami. Since there are no such persons in Kasaragode District, who are affected by Tsunami, the acquisition for the said purpose is of no use. According to the appellants, they are having land only for meeting residential purpose. Admittedly, the first petitioner, who is the first appellant, does not own any property therein, but he approached this Court since notice was issued to him. According to them, Ext.P2 notification is for the purpose of rehabilitation of Tsunami victims and provisions under Section 17(4) of the Act have been invoked in this case. The notification is challenged on the ground that it is issued in an arbitrary manner and without application of mind. It is  WA2681/09&c.cases contended that other barren land, which are more suitable are available and for reasons best known to the authorities, such lands are given a go-by and property belonging to the appellants is sought to be acquired, which is arbitrary and unfair. Referring to the Tsunami Rehabilitation Programme, rehabilitation was for persons, who are affected by Tsunami and whose houses were destroyed. Almost all the persons directly affected by Tsunami had already been rehabilitated. It is also contended that invoking of emergency clause under Section 17(4) of the Act at this distance of time amounts to mala fide intentions and motives. They would further contend that the right of the owner to point out the land to be acquired has been lost by invoking the emergency provision and dispensing an enquiry under Section 5A. There is no justification for invoking the emergency  WA2681/09&c.cases clause. W.A.2681 of 2009 arises from out of the judgment in W.P.(C).No.22883 of 2009. Ext.P2 is the relevant notification produced in the case. It is contended that as per the Programme, the rehabilitation has to be done in a phased manner and even those who are occupants, having residential building upto 500 metres of High Tide Line of the sea coast are to be rehabilitated in the first part. If the last of the priority is ultimately to be implemented, the petitioners, whose land is within 500 metres of sea coast, are not suitable for the purpose for which it is acquired. Since one of the purposes for which acquisition is made is to rehabilitate even a possible victim of tomorrow, there arises no emergency for dispensing the enquiry under Section 5A. Elaborating the argument, it was contended that mere exigency of emergency is not sufficient. Both emergency as also the need for  WA2681/09&c.cases dispensing the enquiry is to be shown by the authority.

7.Being confronted with the judgments of this Court referred earlier and referred to by us as above, an attempt was made to distinguish the present case from the facts of those cases. It was pointed out by the learned counsel Sri.Narayanan appearing in W.A.2681 of 2009 that, the purpose of the acquisition in the present appeal is for rehabilitation of Tsunami victims and Tsunami  WA2681/09&c.cases Rehabilitation Scheme is not the purpose as is found in the notification, which was considered in the judgment in W.P.(C)No.5158 of 2009. According to him, the purpose is different. In the case of Tsunami Rehabilitation Scheme, victims of Tsunami and people who are living in coastal regions are to be rehabilitated, whereas there exists no such Scheme when the acquisition is for rehabilitation of Tsunami victims only as in the present case. It is further pointed out that even as per the Scheme, there are four priorities, namely, (1) to provide houses for people who are victims of Tsunami; (2) to rehabilitate persons, who are living within 10 metres of the high tide line; (3) to rehabilitate persons who live within 200 metres of the high tide line; and (4) to rehabilitate persons, who are living within 500 metres of the High Tide Line. Therefore, according to him, it is evident  WA2681/09&c.cases that ultimate proposal and goal of the Government is to rehabilitate persons, who are living within 500 metres of the High Tide Line. It is pointed out that lands belonging to the appellants in W.A.2681 of 2009 is lying within a distance of 460 metres of the High Tide Line, whereas in the case of appellants in W.P.(C)No.5158 of 2009, the land started from 342 metres and ending beyond 500 metres from High Tide Line. According to him, the contention regarding providing of alternate site found in W.A.No.2686 of 2009 cannot be equated with the finding of the judgment in W.A.No.5158 of 2009. It is submitted that the land sought to be acquired is "Nanja III" land and the alternate site offered was rejected on the ground that the land offered was "Nanja III" land. Since the very land that is proposed to be acquired is Nanja III, the rejection of the alternate site on the said same  WA2681/09&c.cases ground is illegal. Learned Government Pleader, however, points out that the land proposed to be acquired in the case of the appellant is Punja and not Nanja, i.e. to say land proposed to be acquired is a "VAYAL", whereas the alternate site proposed is a wet land.

8.We may now proceed to consider the points, which are covered by the decision of this Court in W.A.5158 of 2009, since, the said decision is also rendered by a Division Bench of this Court in respect of similar acquisition to rehabilitate Tsunami victims and we are bound by the said decisions except there exists any factual difference leading to a different conclusion to be reached.

9.Petitioners in W.P.(C)No.5158 of 2009 were also owners of various extents of land at Chavakkad  WA2681/09&c.cases Taluk in Thrissur District. Ext.P2 is the notification made in the said writ petition issued under Section 4(1) of the Act. There also the land was acquired invoking the provisions of Section 17(4) of the Act dispensing with the enquiry under Section 5A. Declaration was also made by the Land Revenue Commissioner under Section 6 of the Act as in the present case. Representations made to the authorities by the petitioners therein also did not yield any favourable results. The challenge was with reference to Exts.P2 to P4 therein. The main ground raised by the petitioners therein was that the urgency clause has been invoked without any justification and that the land is not suitable for constructing residential buildings. Further it is covered by CRZ notification. Even an allegation of mala fide, that the petitioners therein owe allegiance to another political  WA2681/09&c.cases ideology, was put forth as a ground to challenge the same. A specific contention was raised that the land was acquired not to rehabilitate any person hit by Tsunami. As part of the Tsunami Rehabilitation Programme, the Government has decided to resettle families residing in vulnerable areas on sea coast by providing them with new houses at safer place. There the land proposed to be acquired starts from a distance of 342 metres from the sea shore. Though the CRZ notification as per which construction is prohibited, the prohibition only applies to an area within 200 metres and between 200 to 500 metres from the High Tide Line, construction can be made for the benefit of the fishermen community. It was contended by the State that substantial number of persons, who are the beneficiaries of the Scheme, are the fishermen, who can settle in the area within 200 to 500  WA2681/09&c.cases metres from the High Tide Line. After referring to the averments made in the writ petition as also in the counter affidavit, this Court found that the invocation of the emergency clause under Section 17(4) for acquiring other lands under the Tsunami Rehabilitation Programme has already been upheld by this Court in several decisions, one of which is W.P.(C)No.181 of 2009. Actually as per the original plan, the Scheme was to be completed by 31.3.2009. But, on the request of the State Government, the Central Government extended the time for acquisition upto 30.6.2009 and completion of the Scheme upto 31.12.2009. Because of the time constraint, emergency clause was invoked. This submission of the State was accepted and the writ petition was dismissed. After referring to the relevant provision of CRZ notification extracted in Page 11 of the judgment, it was found that the measurement of  WA2681/09&c.cases the land from the sea wall has been correctly made and the acquired land from 342 metres from the sea wall upto 500 metres can be used for fishermen among the beneficiaries, going by the terms contained in the notification, as aforesaid, namely, construction, re-construction of dwelling units for customary uses like residence etc. is found permissible.

WA2681/09&c.cases

11.The learned single Judge, while considering the contentions advanced by the petitioners with reference to the purpose of acquisition, held that the purpose of the acquisition, which has to be stated for public information, need not be so specific that, all the clauses of a scheme, which would be operational, will have to be disclosed. The larger impression that the public gather is that the land is acquired for the purpose of providing relief in connection with Tsunami. Preventive action in management of Tsunami is always the first preference, having regard to the devastating effect that Tsunami has proved worldwide. Therefore, the mere description using the term "XaH^N_ L^G_Dxaf? IaHxG_U^XJ_HagUI_" - rehabilitation of those affected by the Tsunami - does not, in any manner, conclude that, the purpose, as notified, did not include the  WA2681/09&c.cases preventive rehabilitation, having regard to future anticipated calamities. But, to our mind, even in Ext.P2 notification, the purpose stated is not only for rehabilitation of Tsunami victims, but also, who are likely to be affected. Thus the measure taken is to acquire the land for rehabilitation of the affected and also likely to be affected in future and it cannot be said that the purpose of acquisition is not for any public purpose. As a matter of fact, this being the first time that the State has to meet such exigencies as a result of Tsunami, which happened for the first time as far as our State is concerned, if the State thought it fit that instead of searching for land for rehabilitation in future, it is necessary to provide land taking into account of the future contingencies, this Court cannot say that the wisdom of the Government in acquiring the land to meet such  WA2681/09&c.cases exigencies is not for any public purpose. As regards the notification of the emergency clause is concerned, it has been shown by the Government that the fund is provided by the Central Government and unless the fund is expended before the expiry of the financial year, the Scheme itself may fail without adequacy of the fund. When this Court upheld the similar notification issued proposing to acquire land for rehabilitation of Tsunami victims, who are likely to be affected invoking the emergency provision and dispensing an enquiry under Section 5A and having upheld the same, a different yardstick cannot be followed, merely because, the area where the land is situated happened to be different from the area to which earlier notification was issued and upheld. Since Tsunami has affected people of the coastal line, mostly fishermen community in different parts of  WA2681/09&c.cases the State, different notifications were issued. Since the land sought to be acquired are different, definitely the notification by the respective authority would have some minor difference. But over all, the whole purpose of the acquisition in connection with the Tsunami is to rehabilitate the persons who fell a victim of the same or likely to be affected and the same is implemented by framing a scheme in a phased manner. When there is a challenge made against an acquisition by the State, the Court can grant relief, if only it is found that either the notification is not for any public purpose or that it was issued with any mala fide intention. But, in this case, the averments regarding alleged mala fide is too vague. Merely because the appellants' land is acquired is no reason to hold, in the absence of further reasoning, that proposed land is acquired with any malafide  WA2681/09&c.cases intention or motivation. Which is the land most suited for the purpose of acquisition is always for the Government to decide and not for the court to say. We may, in this connection, refer to the decision in Union of India v. Anand Singh Bisht [(1996) 10 S.C.C. 153)]. Paragraph 3 of the decision reads as follows: