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1975 DIGILAW 181 (KAR)

STATE OF KARNATAKA v. THIMMEGOWDA

1975-12-03

CHANDRASHEKARAIAH, K.VENKATASWAMI

body1975
VENKATA SWAMI, J. ( 1 ) THESE three appeals by the State arise out of orders made by a learned Single Judge in the exercise of original jurisdiction of the Court under art. 226 of the Constn, in WPs. 684 and 923 of 1973 and WP. 142 of 1974 respectively. Since it is common ground that the question of law raised is common to all of them, our judgment in WA. 395 of 1974 will govern the disposal of the other appeals also. ( 2 ) THE facts material for the disposal of WA. 395 of 1974 are briefly as follows: Two acres out of Sy No. 140 of Harnal village in Sindgi Taluka,, belonging to the rsepondent (writ petitioner) were proposed for acquisition by a notification No. RD 66 Agi. 73 dt,. 24-3-1973, issued under S. 4 of the Land Acquisition Act ('act' for short ). The public purpose specified therein was for 'providing house sites for landless workers of Harnal village'. By the said notification the Govt dispensed with the procedure enjoined under Sec. 5a of the Act by having recourse to the provisions of s. 17 (4) thereof. There was also an earlier attempt made to acquire the land and the same was not pursued owing to cerain proceedings instituted by the appellant, the details of which it is unnecessary to recount for the present purpose. ( 3 ) AGGRIEVED by the proposal for acquisition, the respondent approached this Court by means of a writ petition the order in which is under challenge herein. The ground urged in support of the petition, inter alia, is that the acquisition was malafide as the same had been set afoot by the officiating patil of the village who bore a grudge against the petitioner, and that there has been no application of the mind by the authority concerned in the context of the invocation of the powers under S. 17 (4) of the Act by the said authority. ( 4 ) THE learned Judge accepted the petition and allowed it almost on the sole ground that the purpose of the acquisition, namely providing house sites to siteless persons, could not ordinarily be regarded as an urgent purpose so as to warrant recourse to the provisions of S. 17 (4) of the Act, hence the appeal by the State. ( 4 ) THE learned Judge accepted the petition and allowed it almost on the sole ground that the purpose of the acquisition, namely providing house sites to siteless persons, could not ordinarily be regarded as an urgent purpose so as to warrant recourse to the provisions of S. 17 (4) of the Act, hence the appeal by the State. ( 5 ) IT is urged on behalf of the appellant that an issue of urgency arising in the context of the exercise of power under S. 17 (4) of the Act is not ordinarily justiciable, and in any event, the purpose of the acquisition being undoubtedly a public purpose any question as to the immediacy or urgency thereof must be left exclusively to the formation of a subjective opinion by the authority concerned. On the question of non-application of mind, urged for the first time before us on behalf of the respondent (the writ petitioner), it was submitted that the proposed acquisition was required to fulfil an urgent public purpose would be apparent from the records made available in the case. ( 6 ) ON the point of non-application of mind, nothing much by way of argument has been urged on behalf of the respondent. On a perusal of the relevant records, we are satisfied that right from the inception of the proceedings for acquisition, the authorities concerned have been uniformly of the view that the clause relating to urgency in S. 17 of the Act ought to be invoked. The notification also ex-facie refers to such satisfaction by the authority. Hence this contention cannot be allowed to prevail. ( 7 ) BEFORE adverting to the main contention, namely, justiciability of the question of urgency in the context of Sec. 17 (4) of the Act, it is necessary to Dispose of one other contention of a minor character urged on be half of the respondent. It is contended that the acquisition proceedings had been instituted as a, result of ill-will entertained against him by the officiating patil of the village, and, therefore, mala fide. We are unable to, accept this submission. To accede to it would mean that a, mere officiating patil of a village was in a position to wield influence over all the authorities, including the Govt, concerned with the proposal for acquisition which on the face of it, is highly improbable. We are unable to, accept this submission. To accede to it would mean that a, mere officiating patil of a village was in a position to wield influence over all the authorities, including the Govt, concerned with the proposal for acquisition which on the face of it, is highly improbable. No material deserying consideration was placed before us in support of such a plea. ( 8 ) WE now turn to the main contention as to justiciability of the factum of urgency. We are unable to agree with the conclusion of the learned single Judge that acquisition for the purpose of providing house sites to houseless people in rural parts could not ordinarily be considered as urgent enough to dispense with compliance with the procedure enjoined by Section 5a of the Act. ( 9 ) WHETHER an acquisition was urgently needed or not, is dependent on several set of factors prevalent locally regarding the existence or otherwise of which only the authorities concerned are best able to judge and therefore, the formation of any opinion thereof ought to be left to the subjective satisfaction of such authorities. That this is the true legal position also can be gathered by the decided cases to which we shall presently refer. ( 10 ) IN Raja Anand Dharma Shah v. State of U. P. , AIR 1967 SC 1081 . the Supreme Court has observed that an opinion of the Govt in the context of exercise of power under S. 17 (4) could be challenged as ultra vires on two grounds. The relevant enunciation occurs in para 8 of the above report end runs thus :" It is true that the opinion of the State Govt which is a condition for the exercise of the power under S. 17 (4) of the Act, is subjective and a Court cannot normally enquire whether there were sufficient grounds or justification of the opinion formed by the State govt under Sec. 17 (4 ). The legal position has been explained by the judicial Committee in King Emperor v. Sibnath Banerjee (72 Ind App 241), by this Court in a recent case - - Jaichand Lal Sethia v. State of w. B. (Crl App 110 of 1966 dt. . 27-7-1986: reported in AIR 19s7 SC 483 ). The legal position has been explained by the judicial Committee in King Emperor v. Sibnath Banerjee (72 Ind App 241), by this Court in a recent case - - Jaichand Lal Sethia v. State of w. B. (Crl App 110 of 1966 dt. . 27-7-1986: reported in AIR 19s7 SC 483 ). But even though the power of the State Govt has been formulated under S. 17 (4) of the Act in subjective terms the expression of the 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. If, therefore in a case the land under acquisition is not actually waste or arable land but the State Govt has formed the opinion that the provisions of sub-sec (1) of S. 17 are applicable, the Court may legitimately draw an inference that the State Govt did not honestly form that opinion or that in forming that opinion the State Govt did not apply its mind to the relevant facts bearing on the question at issue. It follows, therefore, that the notification of the State Govt under S. 17 (4) of the Act directing that the provisions of S. 5a shall not apply to the land is ultra vires. " ( 11 ) THE above observations would, in our view, lend support to the contention that once it is shown that the opinion as to the urgency of the acquisition was formed only after a proper application of mind by the authority concerned with the acquisition, the sufficiency or otherwise of the material, including the nature and purpose of the acquisition, on the basis of which such opinion was arrived at would not ordinarily be justiciable in a Court of Law, except on the grounds specified therein. It follows from this that the nature of the public purpose would be only one of several relevant factors to be considered in the context of the determination of the question of urgency for such acquisition. ( 12 ) A view substantially similar to the above is also expressed in the case of Kashappa Shivappa Manvi v. Chief Secy, Govt of Mysore, 1965 1 Myslj 275. which was a ruling by a Division Bench of this Court. ( 12 ) A view substantially similar to the above is also expressed in the case of Kashappa Shivappa Manvi v. Chief Secy, Govt of Mysore, 1965 1 Myslj 275. which was a ruling by a Division Bench of this Court. In the context of a contention based on the exercise of power under S. 17 (4) of the Act, it has been observed as follows :"if an authority functioning under a statute is authorised to exercise power on its being satisfied that the case is one of urgency and that authority in justification of the exercise of that power says that it exercised that power because something to be done under that statute was urgentlv necessary, I fail to understand what more is necessary to be established in proof of the formation of the opinion in the mind of that functionary that the case was one of urgency It is thus clear that had not the Govt satisfied themselves that the case was one of urgency, they would not have stated that what had to be done was urgently necessary, and in that view of the matter, although generally, if the opinion formed by the Govt in their mind of the existence of urgency may be above judicial review, there may be a case in which this Court might yet find it possible to say that that opinion was an impossible opinion either by reason of the fact that it rests upon no ground at all or rests on grounds which are demonstrated to be thoroughly irrelevant. " ( 13 ) EITHER of the two circumstances referred to in the latter enunciation, have not been shown to be present in the instant case. ( 14 ) FOR all these reasons, we are unable to uphold the conclusion of the learned Single Judge that when a purpose of the acquisition is to make available sites to siteless people, it would not ordinarily be a peak of urgency for the purpose of invoking the provisions of S, 17 (4) of the Act. ( 15 ) IN the result, these appeals succeed and are accordingly allowed. Consequently, in reversal of the orders mede by the learned Single Judge in WPs. 684 and 923 of 1973 and WP. 142 of 1974, we dismiss the said petitions. ( 15 ) IN the result, these appeals succeed and are accordingly allowed. Consequently, in reversal of the orders mede by the learned Single Judge in WPs. 684 and 923 of 1973 and WP. 142 of 1974, we dismiss the said petitions. ( 16 ) IN the circumstances, we direct parties to bear their own costs in all the appeals. --- *** --- .