V KRISHNA REDDY Vs. COLLECTOR MAHABOOBNAGAR

JUDGEMENT

(1.) The Petitioner is the owner of Acs. 6-03 guntas of land situated in Survey No. 151 of Chimmaguntapally Village, Mahaboobnagar District, He says that he had dug up a big well costing him more than Rs. 1,00,000/-in an adjacent land and with the water drawn from that well, he has been irrigating land situated in the above Survey No. 151 raising paddy and groundnut. Out of the above cultivated land, the District Collector Mahabobnagar by his notification under Section 4(1) of the Land Acquisition Act dated 3rd March, 1981 proposes to acquire Acs. 4-25 guntas. Local publication of Section 4 (1) notification was made immediately thereafter. But possession is not taken so far. It is still with the petitioner. The petitioner has filed this Writ Petition on March 23, 1981 challenging the acquisition. The Petitioner has raised several points of objections to the acquisition. But in view of what I propose to say in this judgment I need not consider all of them. It is the admitted case of the parties that the District Collector has dispensed with the enquiry under Section 5-A of the LAND ACQUISITION ACT, 1894 and published Section 6 declaration on the same day on which Section 4(1) notification has been published in the Gazette. Sri Narasimha Reddy, learned counsel for the petitioner, has argued that the publication by the Collector dispensing- with the Section 5-A enquiry is illegal and ultravires of the Collector's powers under the Act. The Collector drives his authority to dispense with Section 5-A from Section 17 of the Land Acquisition Act. Interpreting the powers of the Collector to dispense with Section 5-A enquiry in cases where the proposal was to acquire lands to be given as house sites to Harijans, a Full Bench of this Court in Ganga Ram V. Tahsildar, Metpally (1) 1983 (1) An.W.R. 354 held that Section 5-A enquiry cannot be dispensed with unless it is found that public interest involved in acquisition is of that degree of urgency that it does not brook the delay of even the minimum time needed to give a hearing to the land owners under Section 5-A of the Land Acquisition Act. In support of the above common sense view, the full Bench has relied upon the decision of the Supreme Court reported in State of Punjab V. Gurdayal Singh (2) A.I.R. 1980 S.C. 319. The Full Bench has also referred to another decision of the Supreme Court in Narayan V. State of Maharashtra (3) A.I.R. 1977 S.C. 183 and held that it is not just the existence of urgency that can justify dispensing with the enquiry under Section 5-A of the Act. The Full Bench elaborately discussed the Madras amendment and held that excepting in rarest of rare cases Section 5-A enquiry cannot be dispensed with. It is also held that dispensing with Section 5-A inquiry should not be done machanically and that it is necessary that there is enough material before the Collector that would reasonably justify dispensing with Section 5-A enquiry. That Full Bench decision is not overruled on this Point. I think that so long as it is remembered that Sec 5-A of LAND ACQUISITION ACT, 1894 enacts a rule of fair play and principles of natural justice and that principles of natural justice would apply to all State acts affecting property rights, the Full Bench decision cannot legally be overruled. I gather Kasireddi Papaiah's decision (4) 1 975 (1) A.P.L.J. 70 which deals with a situation arising out of the tardy official to take possession of the land even after dispensing with 5-A inquiry has nothing to do with the present discussion. Applying those decisions, it must be held that Section 5-A enquiry cannot be dispensed with machanically. It is not shown tome that acquisition in this case does not brook even 30 or 40 days' delay needed for holding enquiry under Section 5-A. I am not shown any meteria! spread on the record justifying the dispensing with statutory inquiry. I am, therefore, constrained to hold that enquiry under Section 5-A has been dispensed with most machanically and for that reason, the action is illegal. I follow the Full Bench decision fully.

(2.) But Sri Ramakrishna, had vehemently and at a considerable length argued that Act 9 of 1983 has by implication overruled the Full Bench decision on the question of exercise of discretion in individual cases. He also relied upon the unreported judgment of my learned brother Ramaswamy, J. in W. P. No. 5856 of 1984 dated: 10-8-1984. I have closely listened to the learned Government Pleader's argument. But I am unable to find any substance in his contention. The Full Bench has dealt with several questions, for example, it held that there must be simultaneous local publication of the substance of Section 4 (1) notification. The Full Bench has also held that the preparatory time taken for initiating land acquisition proceedings is relevent for considering whether Section 5-A enquiry has been properly dispensed with or not. The Full Bench had also considered the question as to how the discretion of the Collector to dispense with Section 5-A enquiry should be exercised. The Full Bench has also dealt with the question of failure of the Collector to take possession after Section 5-A enquiry is dispensed with. Out of these various issues. Act, 9 of 1983 has chosen and picked up only three issues for legislative solution. Act 9 of 1 983 mentions only three grounds on the basis of which acquisition of land cannot be invalidated. Sec. 5 of Act 9 of 1983 declares that no acquisition should be deemed to be invalidated on the ground that there was no simultaneous local publication or on the ground that a declaration has been made under Section 6 of the Act after considerable delay in cases where Section 5-A enquiry has been dispensed with Finally, it deals with the situation where possession of the Land has not been taken immediately following the dispensing with Section 5-A enquiry. These saving provisions do not rule out the application of principles of natural justice to the acquisition of lands for house sites. As a fact those provisions have nothing to say on the question of application of principles of natural justice contained in Sec. 5 A and the discretion embodied in Sec. 17 of the Act of the old Act. The remaining 3 or 4 sections of the amending Act do not lay down any rule relating to the dispensing with 5-A enquiry. I am, therefore, of the opinion that it is still open to the land owners to challenge the acquisitions on the grounds other than those which are mentioned under Section 5 of the Amending Act. Section 4 of the Amending Act provides that where section 5-A enquiry has been dispensed with, the Collector shall take possession of the land within three months. If an over worked and under motivated tardy Collector fails to take possession within the above three months. Section 4 of the Amending Act directs Section 5-A enquiry shall be held. The result would be to invalidate the earlier order made by the authorities dispensing with Sec. 5-A inquiry and Sec. 6 declaration made by the authorities. A close look at this amending Section would show that what the Legislature in Act 9 of 1983 had overruled is not the Full Bench decision, but those decisions of this Court which have held to the contrary that delay that occurred subsequent to the dispensing with Section 5-A enquiry would not invalidate the earlier dispensing notification dispensing with Section 5-A enquiry. For the first time, the Legislature accepted the theory that subsequent omission of the Collector to take possession would invalidate the earlier action of dispensing with Sec. 5-A inquiry. Thereby the Legislature has overturned a part of Kasireddy Papaiah's case (4) (Supra). Now, it is abundentlv clear that by reason of the legislative declaration made in Act 9 of 1983 where the notification dispensing with Section 5-A enquiry is not followed by taking possession within the stipulated time, both the notification dispensing with 5-A enquiry and Section 6 declaration would become retrospectively invalid. I am making these observations to show that the Legislature has accepted the Full Bench decision on the point of subsequent failure to lake possession of Land. But the point with which we are concerned in this case is whether the Act 9 of 1983 has anything to do with exercise of discretion of the authorities in dispensing with Section 5-A enquiry. That question not being the subject matter of Act 9 of 1983 has not been dealt with by Act 9 of 1983 at all. It must be taken, therefore, to have been left by the Legislature where it has been found by the Full Bench. I am therefore, of the clearest opinion that the arguments of the learned Government Pleader that the Act No. 9 of 1983 has overruled the Full Bench decision regarding the exercise of discretion of the authorities relating to the dispensing with Section 5-A enquiry is incorrect. In my opinion, it is impossible to hold that the Legislature had nddressed itself to any question that has not been mentioned in the provisions of the statute. It is most significant that the provisions of Act 9 of 1983 and in particular Section 4 of that Act have nowhere dealt with the powers of the authority relating to dispensing with Section 5-A enquiry. What is deal* with by Act 9 of 1983 is not a situation for valid dispensing with Section 5-A enquiry Similar is the position under Section 5 of the amending Act. Nowhere under these provisions, the Legislature has dealt with this question as to how the discretion of the Collector to dispense with Section 5-A enquiry should be exercised. It must, therefore, be held that the matter is still governed by the principles and test laid down by the Full Bench. For these reasons, I am unable to aqrea the contention of the learned Government Pleader according to whom, it is no longer possible for the petitioner to challenge the validity of the land acquisition on the ground that Section 5-A enquiry has been dispensed with improperly or arbitrarily or unreasonably. The question whether any Legislature of this countr, would ever be competent to exclude an inquiry under Article 226 regarding the exercise of statutory discretion under Sec. 1 7 (4) can only be answered in the negative. In my opinion it shall always be open for a citizen to complain under Article 22b of the Constitution that discretion has been exercised by a statutory authority wrongly and that the statutory authority had been guilty of exercising its discretion machanically or without applying its mind to the facts of the case, it follows that a Legislature cannot shut out such an enquiry under Article 226, nor can this Court give up its ancient right and responsibility to investigate into the citizen's complaints made to it alleging breach of rule of law. We may note here that the acquisition for the weaker Sections is not the subject matter of this debate. We are concerned only with the question as to the proper means and mode of such acquisition. What the learned Government Pleader says in substance would amount to denying the powers of this Court under Article 226 of the Constitution from examining the validity of the method and mode adopted by the executive in providing house sites to the weaker Sections. Clearly, there is no legal warrant in the Constitution or in the corpus juris of this country for this argument of the learned Government Pleader.

(3.) Late Bevan used to say that even that great and admirable Benthamite principle of the greatest good of the greatest numbers does not rule out investigation into individual injustices. Providing house sites to the weaker sections is certainly a laudable object But proceeding from that premise, it is wholly illogical to argue and wholly contrary to all accepted notions of fair play and principles of natural justice, to hold that in every case of compulsory acquisition of private lands for the purpose of providing house sites to the weaker sections, the owner should be denied the opportunity of presenting his case. I do not know a single instance of civil juririsprudence laying down this extreme principle. I am of the opinion that the normal rule should be to provide an opportunity to the land owners to show cause against the proposal to acquire his lands. This is what our LAND ACQUISITION ACT, 1894 following the British pattern have been laying down both before and after the above mentioned Full Bench decision. The Full Bench has merely put the record straight. Therefore, it becomes necessary for this Court to examine in each case whether the 5-A enquiiy has been rightly dispensed with or not. As it has not been shown to me that dispensing with enquiry in this case is done for legitimate purpose and has been done after applying tha Collector's mind, I set aside the Collector's notification dispensing with Section 5-A enquiry. If section 5-A enquiry has been allowed, the landowner would have had his only last chance of ventilating his grievance and could have urged something in protection of his rights. I considered this is the compulsory minimum which the owner of the land is entitled to under various judgments of the Supreme Court upholding the principles of natural justice and also under the well accepted norms of civilized jurisprudence laid down by all the anglo-Sazon Courts.