YOGESH NEEMA Vs. STATE OF M P

JUDGEMENT

(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.

(2.) 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-A of 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.

(3.) 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 Vs. State of Maharashtra, AIR 1997 SC 1236, 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 Vs. Nirodhi Prakash, (2002) 4 SCC 160, 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 others Vs. U. P. Government and others, AIR 1964 SC 1217, Raja Anand brahma Shah Vs. State of U. P. and others, AIR 1967 SC 1081, Ishwarlal girdharlal Joshi Vs. State of Gujarat and another, AIR 1968 SC 870, Narayan govind Gavate and others Vs. State of Maharashtra and others, (1977) 1 SCC 133, Om Prakash and another Vs. State of U. P. and others, (1998) 6scc1, Union of India and others Vs. Mukesh Hans, (2004) 8 SCC 14, Union of India and others vs. Krishan Lal Arneja and others, (2004) 8 SCC 453, Union of India and others vs. Deepak Bhardwaj and others, AIR 2004 SC 3289. He further submitted that in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and others, (2005) 7 SCC 627, 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.