JACOB MATHEW Vs. STATE

JUDGEMENT

(1.) Petitioners in O.P. No. 14278 of 1996 and 12973 of 1996 have challenged the validity of the Land Acquisition notification issued by the Special Tahsildar (LA) General, under S.4(1) read with S.17 of the Land Acquisition Act dispensing with S.5A enquiry under the Act. They are also seeking a direction to the respondents to implement the report made by the British Overseas Development Administration, BODA. According to the petitioners their report discloses that only 60% capacity of the existing pipeline is being utilised and with the help of Booster stations at Kalamassery 100% capacity of the existing pipeline can be utilised. Report also indicated that both the 42" and 36" pipeline laid along the pipeline road are in good condition. The total implementation cost for improving the quantity of drinking water as worked out in the report is Rs.11 crores and 64 lakhs. Additional quantity of water which could be brought to Ernakulam-Cochin area as per the proposal suggested in the report is 43.5 mld. It is their case that the report submitted by the BODA was approved by the Corporation of Cochin and the State Government.

(2.) Petitioners in O.P. No. 12973 of 1996 relied on the report submitted by the Kerala Industrial and Technical Consulting Organisation, KITCO, which was presented in a seminar organised by the Malayala Manorama Cochin 2000 A.D. held on 25.2.1996. Report also gives details of viable alternate schemes for increased water supply with such less costs and which could be carried out expeditiously in a much shorter time with better results and greater augmentation of water supply. It is their case that in the meeting held on 29.12.1995, officers of the Water Authority stated that pipeline would be drawn only through the existing pipeline and after acquiring land at a width of 8 metrs. However, the complaint of the petitioners is that later Kerala Water Authority backed out from the said proposal. Same is the contention of counsel for the petitioner in OP No. 7243 of 1996, as well.

(3.) However, the main legal contention raised by petitioners is that respondents have committed a grave error in invoking the emergency clause. According to them, the alleged purpose for invoking emergency clause is to augment the supply of drinking water at the earliest. However, the same cannot be achieved through the scheme formulated by the Water Authority, since it will take at least 5 years for completion. According to them the purpose of impugned notification is not to augment the supply of drinking water but to widen the pipeline road which connects Alwaye and Kochi, so as to gain better access to the International Airport at Nedumbassery. It is stated the scheme was formulated in 1991. The specific proposal to invoke the emergency clause was made in December, 1995. The impugned notification was issued only in August, 1996. The long delay coupled with the extraneous purpose for which S.17 has been invoked would demonstrate that the impugned notification is arbitrary and ultra vires S.17 of the Act. Counsel relied on the decision of this Court in Seshagiri Mailer v. Tahsildar, 1964 KLT 54 and contended that under S.17(4) of the Act, the Government have to form an opinion about the applicability of S.17(1) and 17(2). And when they so form an opinion and decide to dispense with the provisions of S.5A they must be fully aware that a very valuable right statutorily conferred on a citizen to object to the acquisition proposed is taken away. It is contended S.5A gives only 30 days time to a person affected or interested to file his objections to the proposed acquisition by a notification under S.4(1). Therefore any urgency that demands a dispensation with S.5A must necessarily be an urgency which will not brook a delay of 30 days. In other words, it is contended the statute itself impliedly speaks about the circumstances under which the dispensation can be made. An urgency to suit the convenience of the Government and at the same time depriving the citizen of a very valuable right, is not the one contemplated by the Act. Counsel also relied on the decision of the Supreme Court in State of Punjab v. Gurdial Singh. 1980 (2) SCC 471 and contended that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time need to give a hearing land acquisition authorities should not, having regard to Art.14 and 19, burke an enquiry under S.17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power. The indefensible resort to S.17 is evidence of the length to which the executive would go to come to terms with men wielding political power. Counsel also relied on the decision in Narayan Govind Gavate v. State of Maharashtra, 1997 (1) SCC 133 , and contended that the formation of opinion under S.17(4) is a subjective matter. The mind of the Officer or authority concerned has really to be directed towards formation of an opinion on the need to dispense with the inquiry under S.5A of the Act. Nevertheless, that opinion has to be based upon some relevant materials in order to pass the test which courts do impose. There may also be cases where the mind of the authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider. It is the case of counsel for the petitioners that there has not been application of mind by the respondents and there is no reason to exclude the applicability of S.5 A of the Land Acquisition Act.