NATWARLAL JERAMBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this group of special civil applications the petitioners challenge the notifications issued under secs. 4 and 6 of the Land Acquisition Act (hereinafter referred to as the Act) acquiring their lands for the extension of village site urgently under sec. 17(4) of the Act by dispensing with the inquiry under sec. 5A of the Act. In Special Civil Application Nos. 1603 and 1604 of 1967 the lands that are sought to be acquired are respectively S. Nos. 11 and 14 situated in village Kholeshwar Taluka Kamrej District Surat. In these petitions the notifications under secs. 4 and 6 of the Act were issued on January 24 1967 and October 6 1967 respectively. In Special Civil Application No. 864 of 1967 the lands that are sought to be acquired are S. Nos. 925 950 954 and 953 situated in village Ichchhapore Taluka Chorasi District Surat. The notifications under secs. 4 and 6 of the Act were issued on February 16 1967 and May 30 1967 respectively. In all these petitions the lands are sought to be acquired to accommodate the flood stricken residents of the respective villages. The acquisition notifications are challenged in the petitions on various grounds but at the time of argument the points pressed were:-

(2.) In order to appreciate the contentions it is necessary to refer to the relevant provisions of the Act. Sec. 4 of the Act provides that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to the effect shall be published in the Official Gazette. Sec. SEE of the Act provides that any person interested in any land which has been notified under sec. 4 sub-sec. (1) as being needed or likely to be needed for a public purpose or for a company may within thirty days after the publication of the Notification under sec. 4 of the Act object to the acquisition of the land The objections are to be addressed to the Collector. The Collector then has to give the objector an opportunity of being heard. After the inquiry the Collector has to submit his report to the Government Sec. 6 of the Act provides that when the appropriate Government is satisfied after considering the report if any made under sec. 5A sub-sec. (2) that any particular land is needed for a public purpose a declaration shall be made to that effect. The declaration is required to be published in the Official Gazette. The said declaration of the Government that the land is required for public purpose or for a company is conclusive evidence that the land is needed for a public purpose or for a company. After such a declaration proceeding for determining the compensation payable to the owner of the lands which are acquired is to be put in the motion after giving notices to the persons interested in the land. The Collector after holding an inquiry gives his award determining the compensation payable to the owners of the lands whose lands are acquired. Sec. 16 provides that when the Collector had made an award under sec. 11 of the Act he may take possession of the land which shall there upon vest absolutely in the Government free from all encumbrances. Sec. 17 of the Act provides that 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 sec. 9 sub-sec. (1) take possession of any land needed for public purpose or for a company. Such land there upon vest absolutely in the Government free from all encumbrances. Sub-sec. (4) of sec. 17 of the Act provides that in cases of any land to which in the opinion of the appropriate Government the provisions of sub-sec. (1) or sub-sec. (2) are applicable the appropriate Government may direct that provisions of sec. 5A shall not apply and if it does so direct a declaration may be made under sec. 6 in respect of the land at any time after the publication of the notification under sec. 4 sub-sec. (1). It is thus clear that under sec. 17(1) and (4) of the Act before an appropriate Government can direct that the provisions of sec. 5A of the Act are to be dispensed with the Government has to be satisfied that the case is one of urgency. Though the satisfaction under sec. 17(4) of the Act is subjective one and not open to a challenge before a Court of law the appropriate Government must be satisfied in respect of an objective fact namely the existence of urgency. Such a satisfaction can only be arrived at by the appropriate Government after applying its mind and taking into account relevant consideration regarding the urgency. The condition precedent to the exercise of powers under sec. 17(1) and (4) of the Act is that the Government must be satisfied that the possession of the land is required urgently. The question is what is the meaning of the phrase in cases of urgency occurring in sec. 17(1) of the Act so that the appropriate Government can dispense with under sec. 17(4) of the Act the procedure of statutory inquiry contained in sec. 5A of the Act enabling the owner to raise objection before the acquiring authority. The provisions of sec. 5A of the Act enjoin a hearing to a person who is entitled to oppose acquisition. This is a statutory right vested in a person who is entitled to oppose acquisition. What sub-sec (4) of sec. 17 empowers the Government is that in the case of any land to which in the opinion of the appropriate Government the provisions of sub-sec (1) or sec (2) are applicable the appropriate Government may direct that the provisions of sec. 5A of the Act would not apply. The phrase in case of urgency has to be read in the light of the provisions of sec 5A of the Act. The urgency contemplated by the provisions of sec. 17(1) and (4) of the Act therefore must be of such a character that it cannot broke the delay of the period of inquiry under sec. 5A of the Act. The urgency must be such that the period required for inquiry under sec. 5A of the Act would cause great prejudice or inconvenience so as to defeat the very purpose of acquisition and the purpose of acquisition cannot be fulfilled. The urgency must be such that the purpose of acquisition cannot await the period of 30 days and the reasonable period of the inquiry under sec. 5A of the Act. Normal procedure of acquisition under the Act is to issue a notification under sec. 4 of the Act and to give the person affected an opportunity to file his objections which are to be heard by the Collector and to be considered by him and the Government before the issuance of notification under sec. 6 of the Act. The provisions contained in sec. 17(1) and (4) of the Act are in the nature of exception to this normal procedure. Cases in which compliance with the procedure prescribed by sec. 5A of the Act can be dispensed with are those in which on account of the exceptional circumstances of the case acquisition does not brook any delay and is urgent. The provisions of sec. 17(1) and (4) of the Act deprive a person of his statutory right of filing objections and of being heard and therefore are rarely to be exercised or could be exercised only when the condition precedent to the exercise of the power is fulfilled. It is true that the provisions of sec. 17(1) and (4) of the Act provide that the Government has to be satisfied that the lands are urgently needed and this opinion of the Government is not justifiable but it is to be noted that the opinion of the Government must be based on the objective fact and the condition precedent to the exercise of power under sec. 5A of the Act must be fulfilled. The condition imposed by sec. 17(1) is a condition upon which the jurisdiction of the State Government depends and it is obvious that by wrongly deciding the question as to the urgency of the land the State Government cannot give itself jurisdiction to give direction to the Collector to take immediate possession of the land under sec. 17(1) of the Act. It is well established that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact the High Court is entitled in a proceeding of writ to determine upon its independent judgment whether or not that finding of fact is correct. Even though the power of the State Government has been formulated under sec. 17(4) of the Act in subjective terms the expression of opinion of the State Government can be challenged as ultra vires in Court of law if it could be shown that the State Government misconstrued the provision of the section or never applied its mind to the matter or the State Government did not honestly form that opinion or there were no materials upon which the authority could form the requisite opinion or the action of the State Government was mala fide. Vide Raja Anand Drahma Shah v. The State of Uttar Pradesh and others A.I.R. 1967 S.C. 1081 and Rohta's Industries Ltd. v. S. D. Agarwal and another A.I.R. (1969) S.C. 707. If therefore in a case wherein the lands under acquisition are not actually needed urgently but the appropriate Government forms such an opinion the Court of law can interfere. The provisions of sec. 17(1) and (4) of the Act have been interpreted in the same way in which we have done by the Mysore High Court in Thirumalaiah v. State of Mysore and another A.I R. 1963 Mysore 255; and Kashappa Shivappa v. Chief Secretary to the Government of Mysore and others A.I.R. 1963 Mysore 318 and by the Kerala High Court in K. Seshagiri Maller and others v. Special Tehsildar for Land Acquisition Kozhikode and another A.I.R. 1965 Kerala 92

(3.) Thus having laid down what is necessary to be established to invoke the exercise of power conferred under sec. 17(1) and (4) of the Act let us apply the law to the cases before us. In Special Civil Application Nos. 1603 and 1604 of 1967 the facts are similar. In both the petitions the petitioners have alleged that there was no need to apply the urgency clause. The urgency clause was applied at the time of issuance or the notifications under sec. 4 of the Act. The Officer who issued the notifications under sec. 4 of Act is now dead and the Government is not in a position to file his affidavit to show the reasons why the urgency clause was sought to be applied in these cases. Shri S. N. Sawant and Shri V. V. Ramasubbarao Under Secretaries to Government of Gujarat have filed affidavits on behalf of the State Government stating that the present village site of Kholeshwar village is situated on the bank of river Tapti and the bank has been damaged every year by flood water. It was therefore feared that the people of the village would be in danger. The population of the village is also increasing and the existing village site was not found sufficient to accommodate the growing population of the village. The existing residential sites were in low lying area and were not suitable for accommodating the population. The officers further stated that the residences of village Kholeshwar had applied on October 21 1963 to the Taluka Development Officer Kamrej requesting that the village was situated just on the bank of river Tapti and the bank was damaged from year to year and as such it was feared that the village would come into danger at any moment. It was further alleged in this application that the population of the village was increasing and the village site was not sufficient to meet the requirement. After inquiry at various levels the Government in Revenue Department by order dated June 10 1966 accorded sanction to acquire land under S. Nos. 11 and 14 of the village. After preliminary inquiries the Government was prima facie satisfied that it was necessary to acquire the land urgently. The notification under sec. 4 of the Act were issued on January 24 1967 applying the urgency clause and the public notices under sec. 4(1) of the Act were issued on March 13 1967 The notices mere published on the notice board of the Taluka Office on March 24 1967 at the village Chora on March 20 1967 and on the site on March 20 1967 The petitioners were served with the notice under sec. 4(1) of the Act on March 21 1967 informing that the lands were being acquired under the urgency clause and the provisions of sec. 5A of the Act were not applicable. It is thus clear that the application to acquire the land was made by the village people on October 22 1963 and the notification under sec. 4(1) of the Act acquiring the land urgently were issued only on January 24 1967 This conduct of the Government clearly indicates that the State Government waited for a long period before issuing the notification under sec. 4(1) of the Act dispensing with the proceeding under sec. 5A of the Act. It appears that as the lands were sought to be acquired to accommodate flood stricken people the authorities took the view that the urgency provisions contained in sec. 17(1) and (4) of the Act automatically applied to the case. The urgency provisions can apply only if the process of acquisition could not brook the delay of the period of 30 days and the reasonable period required red for an inquiry under sec 5A of the Act. The facts of the case clearly indicate that the instant cases are not one which could be covered by the provisions of sec. 17(1) and (4) of the Act inasmuch as the application to acquire land was made by the village people to the Government in the year 1963 the Government decided to take the land in the year 1966 and ultimately the notifications under sec. 4 of the Act dispensing the provisions of sec. 5A of the Act were issued on January 24 1967 It is to be noted that the notifications were issued in January 1967 at which time there was no danger of any flood nor was there any material on the record to show that the population had so increased at the time that it could not broke the delay of 30 days and the reasonable period of inquiry under sec. 5A of the Act.