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1974 DIGILAW 136 (KAR)

ACCHANAIK v. STATE OF MYSORE

1974-07-10

K.J.SHETTY

body1974
( 1 ) IN this petition under Art. 226, the validity of the notification dt. 26th april, 1973 issued by the State Govt under S. 4 read with sub-sec (4) of s. 17 of the Land Acquisition Act, 1894, hereinafter called 'the Act', fails for decision. ( 2 ) BY the said notification, Sy No. 9/7 belonging to the petitioner has been acquired for a public purpose to wit for village extension of ID. Halli village. It is stated therein that in view of the urgency of the case, the provisons of S. 5a of the Act shall not apply to the acquisition of the land. It is the contention of the petitioner that the purpose for which his land was sought to be acquired was not so urgent as to dispense with the enquiry ujs. 5a and the decision of the Govt that it was an urgent matter was not based on relevant facts. The said notification is sought to be defended on behalf of the State by contending that this Court cannot go behind the notification as the opinion expressed by the Govt regarding the urgency of the matter was based on their subjective satisfaction. In support of the contention. Counsel for State relied upon the decision of this Court in Babu devendrappa Yernal v. State of Mysore, 1974 (1) Mys. L. J. 354 and the decision of the Supreme court in Raha Anand Brahma Sha v. State of U. P. , AIR 1967 SC 1081 . ( 3 ) THE decision on the question turns on the scope and content of sub- secs (1) and (4) of S. 17. They read: * * * ( 4 ) THESE provisions confer special powers on the Govt to acquire lapd in case of urgency. If the State Govt from an opininon that the public purpose is of urgent importance, they may dispense with the enquiry contemplated under S. 5a and take possession qf the land. The opinion of the Govt is undoubtedly the result of subjective satisfaction; a proposition on which I do not think that there can be two opinions. But to state further that the opinion of the Govt is above judicial review may not be correct. In Kashappa v. Chief Secy, Mysore Govt, AIR 1963 Mys. 318== (1965) 1 Mys. L. J. 275. Somnath Iyer, J (as he then was) speaking for the Bench observed :". But to state further that the opinion of the Govt is above judicial review may not be correct. In Kashappa v. Chief Secy, Mysore Govt, AIR 1963 Mys. 318== (1965) 1 Mys. L. J. 275. Somnath Iyer, J (as he then was) speaking for the Bench observed :". . . . . . The opinion formed by the Govt in their mind of the existence of urgency may be above judicial review, but there may be a case in which High Court may yet find it possible to say that that opinion is an impossible opinion either by reason of the fact that it rests upon no ground at all or rests on grqunde. which are demonstrated to be totally irrelevant. "in Thimme Gowda v. State of Mysore, AIR 1967 SC 1081 this Court observed :" It is absolutely not necessary for the State to specify the circumstances which formed the foundation for their opinion to dispense the enquiry under S. 5a of the Act. The requirements of the law shoud, however, be specified, on the scrutiny and investigation of the proceedings culminating in the direction made under S 17 (4)". The requirements of the law shoud, however, be specified, on the scrutiny and investigation of the proceedings culminating in the direction made under S 17 (4)". This Court, in Thimme Gowda's case (4), after scrutiny of the relevant materials produced by the parties, held that there was no basis before the govt for forming an opinion that the case was so urgent as to invoke the power conferred under sub-sec (4) of S 17 of the Act In both the above cases, this Court proceeded on the ground that it is competent for this Court to examine the relevancy of materials on which the Govt formed their opinion regarding the existence of urgencv for acquisition ( 5 ) COUNSEL for the State, however, stronglv relied upon the decision of the Supreme Court in Raja Anand Brahma Sha's case (2) in support of his contention In that case two principal questions were decided bv the supreme Court It was held that the declaration made bv the Stata govt in the notification under S 8 (1) of the Act, that the land was acquired for a public purpose is not open to a Court to go behind it, unless it is shown that the action of the Govt is a colourable exercise of power The other question decided by the Supreme Court related to the scope of enquiry by the Court when the Govt issued a notification under Sec 17 (4) directing that the provisions of S. 5a were not applicable to the land. Denimg with this question, Ramaswami, J speaking for the Court observed thus at page 1085 : " But even though the power of the State Govt has been formulated under S. 17 (4)OF the Act to subjective terms, the expression of opinion of the State Govt can be challenged as ultra vires in a Court of law if it could be shown that the State Govt never applied its mind to the matter or that the action of the State Govt is mala fide. "by the above decisions, the following principles are clearly established. "by the above decisions, the following principles are clearly established. The Court is entitled to enquire, when a challenge is made against the notification issued under S. 17 (4) of the Act, whether the Govt have applied their mind; and if so, whether their opinion regarding the urgency of the matter, was founded on relevant facts and circumstances Tt is also open to the Court to scrutinize whether the Govt have exercised the power on mala fide grounds. If the opinion of the Govt was honestly formed on relevant facts, this Court will not substitute its own views on the matter. If on the other hand, the opinion was funned without materials, or on irrelevant matters, or on mala fide grounds, or is ex facie arbitrary, this Court will not hesitate to strike down the impugned notification. I may hasten to add that this Court is not interested in extending its jurisdiction over matters where it ought not to extend, but it would be failing in its duty and abusing the confidence reposed by the public if it does not exercise its jurisdiction where it ought to. So far I can see, the decision of this Court in Babu Devendrappa's case (1) has not laid down any different principle. In that case, the land was acquired for a public purpose, i. e , to provide hpuse sites to landless and houseless rural workers. This Court felt that no scrutiny of materials was necessary to find out the urgency of the matter except to have a lock at the impugned notiifiation therein; because the intendment of the Govt was patent, i. e. to give immediate relief to the landless and houseless rural workers. None would say that that was not an urgent matter. This Court has not stated nor intended to observe that the notification issued under s. 17 (4) itself is conclusive evidence on the existence of urgency of the matter. ( 6 ) SIMILAR view was taken by the Punjab and Haryana High Court in a Full Bench decision in Printers House (P) Ltd. v. Misri Lal Dalip singh, AIR. 1970 Pandh 1, FB. ( 6 ) SIMILAR view was taken by the Punjab and Haryana High Court in a Full Bench decision in Printers House (P) Ltd. v. Misri Lal Dalip singh, AIR. 1970 Pandh 1, FB. wherein at para, 13, it was observed :" We think, therefore, that if the question of urgency has been decided on grounds which are non-existont or irrelevant, or on material on which it would be an impossible conclusion to reach, it could legitimately be inferred that the mind has not been applied at all. . . . It seems manifest to us that the question must be examined by Court before it could be found that the derision was reasonable. In other words, the question is not such which could be declared non-justiciable outright. "it is therefore futile to contend that the opinion expressed by the Govt on the existence of urgency in a given case is beyond judicial review. ( 7 ) LET me now consider whether the impugned notification is ultra vires of the Act as contended for the petitioner. The notification simply states that the land of the petitioner is needed for village extension. There is no doubt that the said purpose is a public purpose, but what is the urgency in the matter so as to dispense the enquiry under S. 5a of the Act, is required to be considered. It may be relevant to state that the 'village extension, is one of the obligatory functions of the concerned Village Panchayat under S. 42 (o) of the Karnalaka Village Panchayats and Local boards Act, 1959, The Village Panchayat in the instant case, Has not requested the Govt to take an urgent acquisition prccredings The opinion of the govt, however, was founded on some report of the Block Development officer, to which a reference has been made in the State Govt of objections filed on behalf of the State, stating thus :" The Government has issued the impugned notification after considering all the relevant materials available and has come to the conclusion that that land is required for the public purpose, namely, for providing sites to landl ess and houseless persons of I. D. Halli Village. In this context it may bo relevant to state that the Govt had the reports of the Block Development Officer and the Asst Commr who inspected the land in question and opined that a number of families in the village were residing in small shede within the vicinity of manure pits and that the entire area in which they were living was very unhygonic and that with a view to avoid any sort of epidemic and such other natural calamities, it was found necessary to provide sites to thoee villagers after forming proper layout The above mentioned cricumstances reported by the authorities was considered by the Govt and the Goyt thought it proper to invoke S. 17 of the Land Acquisition Act to acquire the land in question. "normally, I would have accepted these allegations to sustain the opinion formed by the Govt on the existence of urgepcy for acquiring the land. But there is ons peculiar feature in this case The petitioner is a Lambani belonging to Schedule Caste He has no other land except the one sought to be acquired. He purchased the said land under a registered sale deed dt. 29-8-1972. He has to depend entirely on the income of that land. It is further stated that there is a Govt circular G. O. No. DPC 15|dhh/72, bangalore dt. 13-5-1972 in which it is provided that the lands of Scheduled castes or Tribes or denotified tribes should not be acquired for the purpose of building sites under the programme of providing house-sites to landless agricultural labourers. A copy of the Circular has also been produced by the petitioner- The said Circular is at any rate binding on the Govt, though breach of it cannot give rise to a cause of action to an aggrieved person, to enforce the terms thereof in a Court of Law. But the petitioner is entitled to submit that if the said relevant Circular had been considered by the Govt, their opinion would have been different. It is not the case of the respondents, that the said Circular was considered by them before issuing the impugned notification. In these circumstances, I cannot but conclude that the impugned notification was the result of an arbitrary opinion of the Government. ( 8 ) IN the result, I allow the petition, quash the impugned notification so far as it pertains to the land of the petitioner. In these circumstances, I cannot but conclude that the impugned notification was the result of an arbitrary opinion of the Government. ( 8 ) IN the result, I allow the petition, quash the impugned notification so far as it pertains to the land of the petitioner. The petitioner is entitled to his costs. Advocate's fee Rs. 100. --- *** --- .