Research › Browse › Judgment

Rajasthan High Court · body

1996 DIGILAW 794 (RAJ)

Mohan Singh v. State of Rajasthan

1996-07-30

BHAGWATI PRASAD, M.G.MUKHERJI

body1996
JUDGMENT 1. - This Special Appeal is directed against the judgment of the learned Single Judge of this Court, dated 28.5.1996. 2. Acquisition proceedings were initiated by the State of Rajasthan for acquiring lands, required for constructing a bypass to divert traffic on the national highway passing through the town of Pali. 3. To initiate the proceedings of land acquisition, a Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as `the Act') was issued by the Land Acquisition Officer on 16.9.95. This Notification was also published in Newspaper. It is alleged by the appellant that when he learnt about the proceedings under section 4(1) of the Act, he submitted objections under section 5-A of the Act before the Land Acquisition Officer on 5.10.95. Further case of the appellant is that while he was awaiting to be heard on his objections, he came to know that a Notification has been published in the Gazette of Rajasthan dated 16th October, 1995. The Notification was dated 13th October, 1995. By this Notification provisions of Section 5-A were made in applicable in the matter and a declaration was made under Section 17 of the Act for the agency of the purpose. 4. Counsel for the appellant challenges the Notification issued under section 17(1) of the Act notifying the urgency and also declaration that Section 5A of the Act will be inapplicable. 5. Argument raised by the appellant is that the declaration dated 13.10.95 is silent about the urgency. No fact or ground has been mentioned in the Notification, which necessitated the action under section 17 of the Act and consequently making of declaration under section 6 of the Act. 6. It has been asserted by the learned counsel for the appellant that there is absolutely no material on record to arrive at a conclusion that there is urgency in the matter. Learned counsel for the appellant has based his argument on a Supreme Court case in Narayan Govind Gavate v. State of Maharashtra, reported in AIR 1977 SC 183 : 1977(1) SCC 133 . In this case, the Hon'ble Apex Court has held that : "The formation of opinion under Section 17(4) is a subjective matter. The mind of the officer or authority concerned has really to be directed towards formation of an opinion on the need to dispense with the inquiry under Section 5-A of the Act. In this case, the Hon'ble Apex Court has held that : "The formation of opinion under Section 17(4) is a subjective matter. The mind of the officer or authority concerned has really to be directed towards formation of an opinion on the need to dispense with the inquiry under Section 5-A of the Act. Nevertheless that opinion has to be based upon some relevant materials in order to pass the test which courts do impose. That test basically is : was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play ? Once the Court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however meagre, on which it could reasonably base its opinion, the courts should not and will not interfere." 7. This case has been subject matter of consideration of the Hon'ble Supreme Court in various later decisions and one of such cases is reported in AIR 1986 SC 2025 , State of U.P. v. Smt. Pista Devi & Others. The Hon'ble Apex Court in considering the case of Narayan Govind Gavate (ibid), and a case decided by the Andhra Pradesh High Court in Rasireddy Papaiah v. Government of Andhra Pradesh, reported in AIR 1975 A.P. 269 has held that the problem of accommodation in these days has become a matter of national urgency. We may take judicial notice of the fact, and keeping this in view, the Apex Court has held that invoking provisions of Section 17 of the Act is necessary and also held that, the time when the case of Narayan Govind Gavate was held, related to the facts of 1963, and much time has elapsed thereafter. 8. The Narayan Govind Gavate's case has once again been subject matter of consideration of the Hon'ble Supreme Court in Krishi Utpadan Mandi Samiti, Muzaffaragar v. Ratan Prakash Mangal & Anr., reported in AIR 1988 S.C. 1459 . In this case, the Apex Court has held that the view taken in State of U.P. v. Smt. Pista Devi, reported in AIR 1986 SC 2025 , still holds the field. In this case, the Apex Court has held that the view taken in State of U.P. v. Smt. Pista Devi, reported in AIR 1986 SC 2025 , still holds the field. It has been held in this case that if there is any justification for showing urgency, then invoking of provisions of Section 17 of the Act and dispensing with an inquiry under section 5-A of the Act could be done. Learned counsel for the appellant has also relied on this case, Krishi Utpadan Mandi Samiti, Muzaffaragar v. Ratan Prakash Mangal & Anr., reported in AIR 1988 S.C. 1459 . The Apex Court took note of the case of Narayan Govind Gavate v. State of Maharashtra (ibid) and quoting the observations from State of U.P. v. Pista Devi, ( AIR 1986 S.C. 2025 at 2028) held as follows : "Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is necessary to invoke Section 17(1) of the Act and to dispense with the compliance with Section 5-A of the Act. Perhaps, at the time to which the decision in Narayan Govind Gavate v. State of Maharashtra, (1971) 1 SCR 763 related the situation might have been that the schemes relating to development of residential areas in the urban centers were not so urgent and it was not necessary to eliminate the inquiry under Section 5-A of the Act. The acquisition proceedings which had been challenged in that case related to the year 1963. During this period of nearly 23 years since then the population of India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes of development of residential areas do not `appear to demand such emergent action as to eliminate summary inquiries under Section 5-A of the Act.' In Rasireddy Papaiah (died) v. Govt. of A.P., AIR 1975 Andh. Pra. 269; (1975) 1 .....70 Chinnappa Reddy, J. Speaking for the High Court of Andhra Pradesh dealing with the problem of providing housing accommodation to Harijans has observed thus : "That the housing conditions of Harijans all over the country continue to be miserable even today is a fact of which courts are bound to take judicial notice. Pra. 269; (1975) 1 .....70 Chinnappa Reddy, J. Speaking for the High Court of Andhra Pradesh dealing with the problem of providing housing accommodation to Harijans has observed thus : "That the housing conditions of Harijans all over the country continue to be miserable even today is a fact of which courts are bound to take judicial notice. History has made it urgent that, among other problems, the problem of housing Harijans should be solved expeditiously. The greater the delay the more urgent become the problem. Therefore, one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad merely because the officials entrusted with the task of taking further action in the in matter are negligent or tardy in the discharge of their ditties, unless of course, it can be established that the acquisition itself is made with an oblique motive. The urgent pressures of history are not to be undone by the inaction of the bureaucracy. I am not trying to make any pointific pronouncement. But, I am at great pains to point out that provisions for house sites for Harijans is an urgent and pressing necessity and that the invocation of the emergency provisions of the land Acquisition cannot be said to be improper, in the absence of mala fides, merely because of the delay on the part of some Government official. (italicising by us)." 9. With the aforesaid discussion, it can be safely held that the law laid down in Narayan Govind Gavate's case (ibid) has been distinguished by the subsequent Supreme Court decisions and looking to the urgency of the situation, judicial notice has been taken by the Apex Court of the urgency. In the cases aforesaid, the Court had clearly taken note of the view that the housing problems deserves to be treated urgently. In the present case, it is a case of laying down a bypass to resolve the traffic congestion in the town of Pali, because national highway passes through the town itself. The delay in this matter is likely to prejudice every single individual, and therefore, in this view of the matter also, we are of the opinion that a judicial notice can also be taken note of about urgency of the situation. The delay in this matter is likely to prejudice every single individual, and therefore, in this view of the matter also, we are of the opinion that a judicial notice can also be taken note of about urgency of the situation. On the safer side we also summoned the records of the P.W.D. Authorities and of the Land Acquisition Officer. After perusal of the same, we are of the view that it is not a case where it can be said that Notification under section 17 of the Act has been issued without there being any real urgency. We are satisfied that the facts obtaining on the file warranted an issuance of Notification for invoking the powers under Section 17 of the Act and State has legitimately dispensed with the inquiry, under section 5-A of the Act. 10. We put to the learned counsel for the appellant during the course of the arguments and he conceded that no specific allegation of mala-fides are made in the case and under these circumstances, minor delay in issuing notification under section 17 of the Act after the issuance of-Notification under section 4(1) of the Act, does not mean that there was no sufficient material on record to warrant invoking the powers of Section 17(1) of the Act, and therefore, the acquisition proceedings cannot he questioned. 11. The other cases referred to by the learned counsel for the appellant are the decisions of various High Courts, which are based on Narayan Govind Gavate's case. This case having been distinguished by the Apex Court itself, therefore, they are hardly of any assistance to the appellant. Learned counsel for the appellant has also urged that invoking of emergency powers under section 17 of the Act was not called for, once the inquiry under section 5-A of the Act has been initiated. 12. We are afraid, this is not the correct proposition of law. Learned counsel for the appellant has also urged that invoking of emergency powers under section 17 of the Act was not called for, once the inquiry under section 5-A of the Act has been initiated. 12. We are afraid, this is not the correct proposition of law. In the case of Krishi Utpadan Mandi Samiti, Muzaffarnagar v. Ratan Prakash Mangal, reported in AIR 1988 SC 1459 relied upon by the counsel for the appellant for his assistance, even after submission of the report and observations of the Apex Court, a fresh Notification under section 17 of the Act was issued, and thereafter, it was held that the powers under section 17 of the Act could be invoked as and when the urgency was felt and that is dependent on the subjective satisfaction of the authorities, which is open to judicial review on a very limited ground of malafides, which in the instant case is not available to the appellant. 13. In the circumstances, the appeal of the appellant is not liable to succeed on this court, and is therefore rejected as meritless.Appeal rejected as meritless. *******