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1991 DIGILAW 204 (KAR)

LT. COL. ALOYSIUS v. STATE OF KARNATAKA

1991-03-14

D.R.VITHAL RAO, K.A.SWAMI

body1991
SWAMI, J. ( 1 ) :- In these writ petitions under Articles 226 and 227 of the Constitution of India, petitioners have sought for quashing the Notification bearing No. LAQ (1) SR 5/85-86 dated 17-9-1985 published in the Karnataka Gazette dated 24/10/1985 issued under sub-section (1) of Section 4 read with Section 17 of the Land Acquisition Act, 1894 as amended by Karnataka Act 17/61 and Central Act 68 of 84 (hereinafter referred to as the 'act') proposing to acquire the portions of properties bearing Nos. 60 and 61 belonging to the petitioners respectively for the purpose of widening of Miller road and St. John's church road, Division Nos. 83 and 87 of the Corporation of the City of Bangalore. They have also sought for quashing the Notification bearing No. RD 241 AQB 85 dated 11-6-1986 published in the Karnataka Gazette dated 17/06/1986. Along with the properties in question several other properties numbering in all 36 have been acquired for the aforesaid purpose. ( 2 ) IT is contended by Sri. K. G. Raghavan, learned counsel for the petitioners that the properties in question are neither waste nor arable, therefore, application of urgency clause is unwarranted; that the purpose of acquisition in question does not fall either under sub-sections (1) or (2) of Section 17 of the Act therefore State Government acted without the authority of law in applying the urgency clause; that the fact that the Notification under sub-section (1) of Section 4 of the Act was published as long back as on 24/10/1985 and thereafter nearly after a lapse of 9 months a declaration was made under Section 6 of the Act is insufficient to indicate that there was no such urgency involved and as such there was no justification for dispensing with the enquiry under Section 5a of the Act; that the properties in question are not at all required for widening of the roads in question. ( 3 ) ON the contrary it is contended by the learned Government Pleader that the traffic on the Miller road was very heavy and due to the congestion of traffic any delay in widening the roads would have resulted in several untoward incidents. ( 3 ) ON the contrary it is contended by the learned Government Pleader that the traffic on the Miller road was very heavy and due to the congestion of traffic any delay in widening the roads would have resulted in several untoward incidents. Therefore, the Commissioner of the Corporation made a report to the Government to widen the roads immediately on acquiring adjoining properties on applying urgency clause as otherwise inconvenience caused to the public due to closure of the road and also due to the congestion on the Miller road as a result of heavy traffic cannot at all be removed. It is submitted by her that the Government on considering the report made by the Commissioner and in view of the urgency involved, decided to acquire the properties mentioned in the Notification on applying the urgency clause; that after coming. , into force of the Land Acquisition (Amendment) Act, 1984, it is open to the State Government to acquire the properties on applying the urgency clause if the Government is of the opinion that it is necessary to acquire immediate possession of the land for the purpose of widening the road; that the fact that there is a gap of about 9 months between the publication of the Notification under subsection (1) of Section 4 of the Act and the declaration made under Section 6 of the Act by itself is not sufficient to vitiate the decision of the State Government to apply the urgency clause, as long as it is not the case of the petitioner that there are mala fides on the part of the State Government in invoking the urgency clause; that the acquisition is for public purpose and the properties in question are required for widening the roads. ( 4 ) IN the light of these submissions, the points that arise for consideration are as follows : (1) Whether the provisions of sub-sections (1) or (2) of Section 17 of the Act are applicable to acquire immediate possession of the properties in question? (2) Whether the application of urgency clause to acquire immediate possession of the properties in question is justified in the facts and circumstances of the case? (3) Whether the decision of the State Government that the properties in question are required for the purpose of widening the Miller Road and the St. John's Church Road is in any way vitiated? (2) Whether the application of urgency clause to acquire immediate possession of the properties in question is justified in the facts and circumstances of the case? (3) Whether the decision of the State Government that the properties in question are required for the purpose of widening the Miller Road and the St. John's Church Road is in any way vitiated? ( 5 ) POINT No. 1 : Sub-section (2) of Section 17 of the Act has been amended by the Land Acquisition (Amendment) Act, 1984. Amended sub-section (2) of Section 17 of the Act reads thus :" (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or that station, or of providing convenient connection with or access to any such station or the appropriate Government considers it necessary to acquire, the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the (appropriate Government), enter upon and take possession of such land, which shall thereupon (vest absolutely in the Government) free from all encumbrances : provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. "sub-section (4) of Section 17 of the Act has also been amended by the aforesaid amendment Act. The said sub-section after the amendment reads thus :"in the case of any land to which in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, appropriate Government may direct that the provisions of Section 5a shall not apply and if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the Notification under Section 4 of sub-section (1 ). "therefore, from the underlined words inserted by the Amendment Act in sub-section (2) of Section 17 of the Act it is clear that it is open to the State Government to acquire immediate possession of the properties, or any land if it is of the opinion that it is necessary for maintaining road communication and also for other purposes as specified therein. 5a. In the instant case, the acquisition is for maintaining the road communication. Therefore, the contention of the learned Counsel for the petitioner that neither subsection (1) nor sub-section (2) is attracted to the acquisition in question is not well founded. The argument appears to overlook the amendment effected by the Land Acquisition (Amendment) Act, 1984. As a result of the amendment to Section 17 (2) of the Act by the Land Acquisition (Amendment) Act, 1984 it is now open to State Government to acquire possession of any land invoking the power under sub-section (4) of Section 17 of the Act for the purpose of maintaining road communication in addition to other purposes specified therein. Therefore, it is not possible to hold that the Government has acted without the authority of law in invoking the urgency clause. Section 17 (2) of the Act is attracted to acquire the immediate possession of the properties in question. Point No. 1 is answered accordingly. ( 6 ) POINT No. 2 :- The State Government has applied its mind to the question as to whether it is necessary to acquire immediate possession of the properties specified in the notification including the properties in question. The proceedings of the Government of Karnataka made available to the Court make this aspect very clear. The relevant portion of the proceedings is as follows : proceedings OF THE GOVERNMENT OF KARNATAKA. Subject :- Acquisition of land in Miller Road for formation of approach road to Railway under Bridge widening Miller Road - Division No. 47 permission to invite urgency clause u/s 17 of the Land Acquisition Act, orders issued. Read : U. O. Note No. HUD 72 MNG 85 dated 9-8-1985. Preamble :- the Housing and Urban Development Department while enclosing the copy of letter No. L1. PR. 78/82-83 dated 30-11-1984 of the Commissioner, Bangalore City Corporation, Bangalore addressed to the Secretary to Govt. Read : U. O. Note No. HUD 72 MNG 85 dated 9-8-1985. Preamble :- the Housing and Urban Development Department while enclosing the copy of letter No. L1. PR. 78/82-83 dated 30-11-1984 of the Commissioner, Bangalore City Corporation, Bangalore addressed to the Secretary to Govt. Housing and Urban Development Department has requested to acquire the properties under S. 17 of the Land Acquisition Act, in view of urgency and for the reasons stated below by the Commissioner, Bangalore City Corporation, Bangalore. (1) that there is considerable inconvenience due to closure of the road and taking up of work of approach road. (2) that the traffic congestion in Miller Road and at the approach road in very tense; and (3) the normal provisions under the Land Acquisition Act would result in long delay to get possession of the land. GOVERNMENT ORDER NO. RD. 170 AQB 85, BANGALORE: DT. 28-8-1985. In the circumstances explained by the Commissioner, Bangalore City Corporation, Bangalore, sanction is accorded to initiate Land Acquisition Proceedings in respect of the land in Miller Road for formation of approach road to Railway under the bridge and widening, Miller Road in Division No. 47 by involving urgency clause under S. 17 of the Land Acquisition Act (As amended) notification u/s. 4 (1) read with S. 17 of the Land Acquisition Act (as amended) may be issued by the Spl. Deputy Commissioner, Bangalore. The provisions of S. 5a are dispensed with as per S. 17 (4) of the said Act. BY ORDER AND IN the NAME OF THE governor OF KARNATAKA sd/- (MAHDI HUSSAIN) under SECRETARY TO government HOUSING AND urban DEV. DEPARTMENT. In view of the aforesaid proceedings it is not possible to hold that the Government acted whimsically without applying its mind. It is clear from the proceedings that the Government has applied its mind to the relevant facts necessary for making a decision on the question as to whether urgency clause should be invoked for acquiring immediate possession of the properties in question. It is clear from the proceedings that the Government has applied its mind to the relevant facts necessary for making a decision on the question as to whether urgency clause should be invoked for acquiring immediate possession of the properties in question. The report made by the Commissioner which is referred to in the proceedings of the Government made it clear that there was considerable inconvenience caused due to closure of the road and taking up of work of the approach road; that there was traffic congestion in Miller Road and at the approach road; that invoking of the normal provisions of the Land Acquisition Act in such circumstances would result in long delay to get possession of the land. The Court can take judicial notice of the fact that if there is congestion of traffic on the road it naturally creates a very tense situation which may at any moment result in causing accidents and thereby causing damage to the life and property of public. Therefore in order to avoid happening of such accidents it is necessary to maintain proper and adequate road communication to ensure smooth operation of traffic and safety of life and property of public. That being so, if the Government decided to apply the urgency clause for acquiring immediate possession of the properties in question it is not possible to hold that the Government acted arbitrarily without applying its mind. If an enquiry under Section 5a of the Act was to be held it would have resulted in long delay in issuing a declaration under Section 6 of the Act ant that in turn would have resulted in that delay in acquiring immediate possession of the properties. Therefore the State Government was justified in accepting the request of the Commissioner of the Corporation and dispensing with the enquiry under Section 5a of the Act. ( 7 ) THE learned counsel has however placed reliance on a decision of the Supreme Court in Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 . Therefore the State Government was justified in accepting the request of the Commissioner of the Corporation and dispensing with the enquiry under Section 5a of the Act. ( 7 ) THE learned counsel has however placed reliance on a decision of the Supreme Court in Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 . In the said decision, the Supreme Court has held as follows ;"while spelling out by a construction of S. 18-AA (1) (a) the proposition that the opinion or satisfaction of the Government in regard to the necessity of taking immediate action could not be the subject of judicial review, the High Court (majority) relied on the analogy of Section 17 of the Land Acquisition Act, under which, according to them, the Government's opinion in regard to the existence of the urgency is not justiciable. This analogy holds good only up to a point. Just as under S. 18-AA of the I. D. R. Act, in case of a genuine "immediacy' or imperative necessity of taking immediate action to prevent fall in production and consequent risk of imminent injury to paramount public interest, an order of 'take-over' can be passed without prior, time-consuming investigation under Section 15 of the Act, under Section 17 (1), and (4) of the Land Acquisition Act, also, the preliminary inquiry under Section 5-A can be dispensed with in case of an urgency. It is true that the grounds on which the Government's opinion as to the existence of the urgency can be challenged are not unlimited, and the power conferred on the Government under S. 17 (4) of that act has been formulated in subjective terms; nevertheless, in cases, where an issue is raised, that the Governments opinion as to urgency has been formed in a manifestly arbitrary or perverse fashion without regard to patent, actual and undeniable facts, or that such opinion has been arrived at on the basis of irrelevant considerations or no material at all, or on materials so tenuous, flimsy, slender or dubious that no reasonable man could reasonably reach that conclusion, the Court is entitled to examine the validity of the formation of that opinion by the Government in the context and to the extent of that issue. 60. 60. In Narayan Govind Gavate v. State of Maharashtra, AIR 1977 SC 183 , this Court held that while exercising the power under S. 17 (4) of the Land Acquisition Act, the mind of the Officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under S. 5-A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under S. 5-A of the Act which has to be considered. If the circumstances on the basis of which the Government formed its opinion with regard to the existence of the urgency and the other conditions precedent, recited in the notification, are deficient or defective, the Court may look beyond it. At that stage, Section 106, Evidence Act can be invoked by the party assailing the notification and if the Government or the authority concerned does not disclose such facts or circumstances especially within knowledge, without even disclosing a sufficient reason for their abstention from disclosure, they have to take the consequences which flow from the non-production of the best evidence which could be produced on behalf of the State if its stand was correct. 61. Again, in Dora Phalauli v. State of Punjab, AIR 1979 SC 1594 , this Court held that where the purported order does not recite the satisfaction of the Government with regard to the existence of urgency, nor fact of the land being waste or arable land, the order was liable to be struck down and the mere direction, therein to the Collector to take action on ground of urgency was not a legal and complete fulfillment of the requirement of the law. "as already held by us, the State Government on taking into consideration all the relevant factors and on being satisfied that there was urgency and that in the facts and circumstances of the case it was necessary to dispense with an enquiry under Section 5a of the Act, and acquire immediate possession of the properties it invoked the urgency clause and dispensed with the enquiry under Section 5a of the Act. Therefore, it is not possible to hold that the decision of the Government is not in conformity with or is opposed to the decision of the Supreme Court in Swadeshi Cotton Mills case ( AIR 1981 SC 818 ). ( 8 ) IT is next contended that if really it was necessary to acquire immediate possession of the properties in question, the State Government immediately on publishing the notification under sub-sec. (1) of S. 4 read with S. 17 of the Act, should have made a declaration under Section 6 (1) of the Act and should have immediately taken possession of the properties. The fact that about nine months had elapsed between S. 4 (1) notification and the declaration made under S. 6 (1) itself would be sufficient to hold that in reality there was no urgency. It is not possible to accept this contention also. In the absence of allegations of mala fides on the part of the State Government, it is not possible to hold that the State Government acted arbitrarily in invoking urgency clause. The fact that there is a gap of nine months from the date of the publication of the notification under S. 4 (1) of the Act and the declaration made under S. 6 of the Act by itself cannot be sufficient to hold that the decision of the Government in applying the urgency clause is vitiated and that the said decision is without any basis. In fact the Supreme Court had an occasion to consider similar situation in State of U. P. v. Smt. Pista Devi, AIR 1986 SC 2025 . In that case there was a gap of nearly one year between the date of the publication of the notification under S. 4 (1) read with S. 17 (1) and (4) of the Act and the declaration made under S. 6 of the Act. While considering this aspect the Supreme Court observed thus :"the letters and the certificates submitted by the Collector and the Secretary of the meerut Development Authority to the State Government before the issue of the Notification under Section 4 (1) of the Act clearly demonstrated that at that time there was a great urgency felt by them regarding the provision of housing accommodation at Meerut. The State Government acted upon the said reports, certificates and other material which were before it. The State Government acted upon the said reports, certificates and other material which were before it. In the circumstances of the case it cannot be said that the decision of the State Government in resorting to Section 17 (1) of the Act was unwarranted. The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke Section 17 (1) of the Act and to dispense with the compliance with Section 5-A of the Act. Thereafter the Supreme Court further observed thus : "we are of the view that in the facts and circumstances of this case the post-notification delay of nearly one year is not by itself sufficient to hold that the decision taken by the State Government under Section 17 (1) and (4) of the Act at the time of the issue of the notification under S. 4 (1) of the Act was either improper or illegal. "the case on hand also contains more or less similar circumstances. Due to congestion on the road the Commissioner of Corporation as already pointed out made a report stating that there was great urgency to acquire immediate possession of the properties in question for the purpose of widening the Miller Road and St. Jhons Church Road in order to ease traffic congestion and maintain road communication. Under such circumstances, the decision of the State Government to invoke the urgency clause cannot be held to be either improper or illegal. Therefore, we are of the view that the delay of nine months cannot by itself be sufficient to vitiate the decision of the State Government to invoke urgency clause. Accordingly, point No. 2 is answered in affirmative. ( 9 ) POINT No. 3: The contention of the petitioners that the properties in question are not at all required for widening the road in question and therefore, the acquisition is vitiated, cannot also be accepted. Except asserting that the properties in question are not required for widening the road no material is placed before us to hold that the properties in question are not required for widening the road in question. The acquisition is initiated after examining these aspects. Except asserting that the properties in question are not required for widening the road no material is placed before us to hold that the properties in question are not required for widening the road in question. The acquisition is initiated after examining these aspects. Hence, we do not see any justification to hold that the properties in question are not required for widening the road. Hence, point No. 3 is answered in the negative. ( 10 ) NO other contention is urged. ( 11 ) FOR the reasons stated above, the petitions fail and the same are dismissed. Petitions dismissed. --- *** --- .