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Rajasthan High Court · body

2006 DIGILAW 1439 (RAJ)

Syed Hasan Ali v. State of Raj.

2006-05-01

SHIV KUMAR SHARMA

body2006
Honble SHARMA, J.—In all these five writ petitions challenge is made to the notifications dated 1.7.2005 and 15.9.2005 respectively issued under Section 6 read with Section 17(1)(4) of the Land Acquisition Act, 1894 (for short Acquisition Act) as well as notice under Section 9(1)(2) and subsequent proceedings under the said Act. 2. For convenience facts of Writ Petition No. 7957 of 2005 are taken into consideration. The petitioner in this writ petition averred that 1 rid bearing Khasra No. 1333 and 604 was purchased by him in the year 1.987 by a registered sale-deed. The Tehsildar vide order dated 1.9.1987 mutated the said land in favour of the petitioner and vide permission dated 24.4.1990 the petitioner constructed a residential house, well and boundary wall of 5 ft. around the whole land. The State of Rajasthan issued a notification dated 1.7.2005 under Section 4 of the Acquisition Act, acquiring the land of the khatedars in village Kukas for the purposes of Rajasthan Industrial Development and Investment Corporation Ltd. (in short RIICO). The land of the petitioner proposed to be acquired was 0.52 hectares out of total area of 0,84 hectares. After the petitioners filed objections on 29.7.2005, the Land Acquisition Officer (for short LAO) proceeded with the matter and fixed 24,8.2005, 30.8.2005, 9.9.2005 and 16.9.2005 for hearing but after the notification under Section 6 read with Section 17(1) and (4) of the Acquisition Act issued by the State Government on 1.5.9.2005 the LAO declined to decide the objections filed by the petitioners. According to the petitioners the notification did not denote any urgent need and it was issued without making compliance of Sections 5-A and 6 of the Acquisition Act. 3. The Respondents 1 and 2 filed joint reply to the writ petition whereas Respondent No. 3 submitted separate reply. The Respondent 1 and 2 admitted issuance and publication of notification dated 1.7.2005 under Section 4 of the Acquisition Act. Filing of objection by the petitioner and issuance of notification under Section 17(1)(4) and Section 6 on 15.7.2005 was also admitted and it was stated that the notification was published on 16.9.2005 in two daily news papers viz. Mahka Bharat and Dainik Navjyoti. It was denied that the purpose of the notification was not to provide hearing to the petitioners. Filing of objection by the petitioner and issuance of notification under Section 17(1)(4) and Section 6 on 15.7.2005 was also admitted and it was stated that the notification was published on 16.9.2005 in two daily news papers viz. Mahka Bharat and Dainik Navjyoti. It was denied that the purpose of the notification was not to provide hearing to the petitioners. According to respondents the industrial area earlier set up by RIICO in village Kukas had saturated and there was heavy demand of industrial plots in the said area being situated in proximity to the National Highway No. 8 leading to Delhi. Therefore, considering the urgency of the situation and after due application of mind the State Government decided to invoke the urgency clause provided in Section 17(4) of the Acquisition Act dispensing with the requirement of hearing under Section 5-A of the said Act. 4. The respondent no. 3 in the reply stated that the Jaipur Development Authority has already taken steps for change in the land use indicated in the Master Plan for the area in question and in this connection issued a notification under Section 25(3) of the JDA Act on 23.9.2005. An affidavit has been filed on the one hand the petitioner has been prosecuting the writ petition and on the other hand he has submitted his claims before the LAO in response to the notice under Section 9 of the Acquisition Act claiming Rs. 4,14,39,218/-. He has also voluntarily participated in the process of determination of compensation, but because of the interim order passed in the present matter, the LAO could not proceed to determine the compensation. In other matters, the estimated compensation to the extent of 80% in terms of Section 17(3-A) has been determined and deposited in the Civil Court. The land of Charagah which the petitioner is citing as an alternative land is not only not adjacent to the existing industrial area, but also far away from the National Highway and, therefore, would have no utility for the purpose of expansion of the existing industrial area. 5. I have pondered over the rival submissions and scanned the material placed for my perusal. 6. 5. I have pondered over the rival submissions and scanned the material placed for my perusal. 6. Impugned notification and notices have been called in question by the petitioners on the following grounds: (a) The abrupt application of urgency provisions during the hearing of objections under Section 5-A is a malafide step on the part of the non-petitioners. There was no urgency in the acquisition proceedings and the urgency provisions have been invoked only in order to grab the land of the petitioners without making any payment or after making meager payment under Section 17(3-A) of Acquisition Act. (b) The State Government has not applied its mind to the urgency provisions. The RIICO made request to the State Government to apply urgency provisions without supplying any material on the basis of which urgency provisions could be applied. Without there being any reason to apply urgency provisions, the application of urgency provisions are void and contrary to the provisions of the Acquisition Act and the Constitution. The application of urgency provisions in the present case suffers from lack of consideration and mala fide. (c) Without receiving any report under Section 5-A from the LAO, the urgency provisions should not have been applied. The LAO had not filed any report under Section 5-A of Acquisition Act to the state Government nor any request was made by the RIICO to the LAO and as such in the absence of report under Section 5-A suggesting the application of urgency provisions, the acquisition proceedings is contrary to law. (d) By application of urgency provisions in the acquisition proceedings the valuable rights of the petitioners as provided in Section 5-A of the Acquisition Act have been violated. The provisions of Section 17(4) have not been applied while issuing notification under Section 4 of the Acquisition Act and the petitioner had a right to be heard in support of his objections. The LAO instead of giving hearing went on adjourning the case and did not give him a hearing and as such the acquisition proceedings deserve to be quashed and set aside. (e) The land is not acquired for any public purpose but is being acquired for obliging an industry namely Hero Honda Company with which the officials of the RIICO have colluded so as to draw benefit out of the same. The provisions of Section 3(0 defines public purpose. (e) The land is not acquired for any public purpose but is being acquired for obliging an industry namely Hero Honda Company with which the officials of the RIICO have colluded so as to draw benefit out of the same. The provisions of Section 3(0 defines public purpose. The land acquired for RIICO may be a public purpose but compliance of Sections 3(0(iv)(vi) of the Acquisition Act has to be made. The prior approval of the local authority is a must before approving scheme for acquisition of land. (f) The publication of notification under Section 6 read with Section 17(1)(4) in the news paper which has got no circulation in village Kukas and Amer, is a deliberate mala fide action on the part of the non-petitioners. (g) In the notification of Section 6 read with Section 17(1) and (4) of the Acquisition Act, urgency has not been shown and as such the urgency provisions could not have been applied, as such the notification is bad in law. (h) The LAO had not made any survey of the land before the publication of the notification under Section 6, as such the land is being acquired without following due process of law as is required by Section 4(2) of the Acquisition Act, as such the same is against the provisions of Article 300-A of the Constitution. (i) As a consequence of acquisition proceedings the petitioners shall be deprived of their livelihood which is not permissible under law. The petitioners cannot be deprived of their livelihood under the cover of acquisition proceedings. (j) As a result of -74th Constitutional Amendment Act, 1992 the matter of planning has been entrusted to the Metropolitan Planning Committee through Article 243-ZE of the Constitution and to the District Planning Committees through Article 243-ZD of the Constitution. The RIICO cannot make plan on its own. The making of the plan by RIICO is ultra vires to Constitution for which acquisition can be made. (k) Village Kukas come under the domain of JDA, as such the RIICO has to obtain land from the JDA. The land has to be first acquired by the JDA and then if the JDA deems it fit according to Master Plan, allot the land to RIICO as per the provisions of Section 17 of the JDA Act. (k) Village Kukas come under the domain of JDA, as such the RIICO has to obtain land from the JDA. The land has to be first acquired by the JDA and then if the JDA deems it fit according to Master Plan, allot the land to RIICO as per the provisions of Section 17 of the JDA Act. The State Government cannot acquire the land on the direct request of RIICO in the area of JDA, which causes anarchy in development work. (l) In the Master Plan of 2011, the area of village Kukas has been reserved for ecological purpose and shown as a rural belt i.e. as a green belt. The green belt cannot be annihilated by acquiring the land for RIICO and establishment of industrial area. I& he acquisition of land is thus in contravention of the master Plan. (m) The land of the petitioner is just adjacent to National Highway No. 8. The construction over the said land have to be made with due permission of National Highway Authority. Such permission has not been taken by the RIICO. As such the acquisition proceedings is bad in law. 7. In support of the aforesaid contentions learned Counsel for the appellant placed before me certain decisions of Honble Supreme Court to which I will refer at an appropriate stage in the latter part of this judgment. 8. Repelling these contentions learned Counsel appearing for the State of Rajasthan canvassed that since the land had to be acquired for the purpose of planned industrial development, urgent situation was implicit in such acquisition proceedings and if Section 5-A inquiry was not dispensed with, years would have passed before Section 6 notification could have been issued. It was also submitted that the material relied upon by the State authorities for dispensing with inquiry under Section 5-A of the Acquisition Act was quite relevant and this Court would not sit in appeal over the subjective satisfaction of the authorities in this connection as it is well settled that if subjective satisfaction for invoking Section 17(4) is found to be based on relevant material it cannot be challenged in a Court of law by requesting the Court to reappreciate such evidence. It was next contended, placing reliance on some of the judgments of the Apex Court, to which I will make a reference hereinafter, that acquisition for the planned industrial development would entitle the authorities to invoke urgency provisions of Section 17(4) of the Acquisition Act. 9. In a written note on behalf of State of Rajasthan and RIICO, facts reflected from the Government record and details of submissions have been incorporated thus: - A. The facts reflected from the Government record:- On 14.8.2004/16.8.2004 the process of acquisition was initiated in view of the fact that Kukas Industrial Area has saturated and there was a heavy demand from Industrialists for industrial land in the said area. The said initiation was approved at the level of Deputy Secretary (Industries) and the Industries Ministry. 2. On 28.12.2004 the plans and proposal were re-examined by the Industries Minister and the Minister desired to discuss the matter with Chief Managing Director, RIICO. On 30.12.2004 the matter was discussed with CMD, RIICO and considering the fact that the entire proposed land is part of ecological zone, it was decided to approve the acquisition subject to the JDA clearance, de-notifying eco-zone. 3. Thereafter from 30.12.2004 to 13.6.2005 i.e. for about six months the matter was processed and scrutinized at various levels and various aspects were repeatedly examined specially in the context of ecological zone and the process of change from ecological zone to industrial area was also initiated. 4. It was on 14.6.2005 i.e. after a time span of about eight months from the date of initiation of the process for acquisition of land for expansion of the industrial area that the Deputy Secretary, Industries (1) took note of the interest shown by M/s. Hero Honda and other big companies to establish industrial unit in Kukas. In view of the importance of land to RIICO and to State Government it was considered to issue notification under Section 4 of the Land Acquisition Act. It was also decided to pursue with the Commissioner, JDA for change in land use. The Commissioner (Investment and NIRs) observed that Bureau of Investment Promotion (BIP) has been pursuing Hero Honda for setting up their third manufacturing unit in Rajasthan. The financial package for that company has been negotiated by the Finance Department which was sought to be presented to BIDI. The Commissioner (Investment and NIRs) observed that Bureau of Investment Promotion (BIP) has been pursuing Hero Honda for setting up their third manufacturing unit in Rajasthan. The financial package for that company has been negotiated by the Finance Department which was sought to be presented to BIDI. It was also observed that the company has almost made up its mind on the location. It was observed that in order to ensure that the land is made available in the shortest possible time a committee is to be constituted under the chairmanship of the Chief Secretary, and the other members would be Principal Secretary, Industries, Principal Secretary, Urban Governance, Principal Secretary Revenue, RIICO, JDC and ICP - VIP. The committee was appointed to consider the issue pertaining to demarcation of the land, urgency acquisition, cost. of land to the company, modalities of the transfer of the land etc. The principal Secretary examined the urgency provision and recorded that industrial area at Kukas is saturated and that there is heavy demand of industrial plots in the Kukas Industrial Area and, therefore, the RIICO requires this land urgently. Further in view of the request made by the Managing Director, RIICO, Principal Secretary proposed to undertake exercise of the powers conferred upon State Government under sub-section (4) of Section 17 of the Land Acquisition Act, it was directed that the provision of Section 5-A of the Land Acquisition Act will not be made applicable in the matter. It was also proposed that a notification under Section 6(1) of the Land Acquisition Act be issued to the effect that land is needed for a public purpose. The Chief Secretary Industries and the Industries Minister approved the said process and the Principal Secretary, Industrial Department re-examined the matter. After a threshold scrutiny of the entire matter, scanning of the materials on record collected and following the due process provided under law the Government after duly applying the mind on 15,1).2005 proceeded to issue a notification under Section 6 read with Section 17(1) and (4) of the Land Acquisition Act 1894 for acquiring the aforesaid land. The records have already been submitted before this Honble Court. Other submissions:- (i) The Government was having sufficient material before it for invoking the provisions of Section 4,6 and 17(1) and 17(4) of the Act of 1894. The records have already been submitted before this Honble Court. Other submissions:- (i) The Government was having sufficient material before it for invoking the provisions of Section 4,6 and 17(1) and 17(4) of the Act of 1894. The Government after due application of mind reached to the conclusion of invoking the provision of urgency. Acquisition proceedings was initiated in view of the fact that the Industrial Area had become saturated and there was a demand by industrialist for industrial area. The State Government being aware of the demand and in view of the industrial growth of the State, sought to initiate acquisition proceedings. It is relevant to detail out here that it was not Hero Honda who wanted to set up an industry here but it was the State who keeping in view of the Public Purpose, Public Interest, the Global Development, Economic Growth, Employment Avenues and the Industrial Growth of the State proceeded to pursue Hero Honda to set up an industry in Rajasthan. Hero Honda came into picture in June 5 only when the interest was shown by them for establishing their unit in Kukas. As stated earlier the Government after due application of mind and only after consideration of the entirety of the situation to the effect that the industrial area earlier set up by RIICO in Kukas has saturated and there was heavy demand of industrial plots in kukas Industrial Area, reached to a decision that the RIICO required the same rightly for expansion of existing industrial area. The notification issued under Secs. 4 and 6 for land acquisitions was issued for the public purpose of expansion of industrial area. For expeditious completion the proposal of acquisition for industrialization purpose notifications under Section 1.7(1) and (4) were issued and urgency provisions were invoked. (ii) RIICO is a government corporation which is responsible for the growth of industrialization in the State of Rajasthan. The land is being acquired for RIICO for the purpose of industrial expansion and thus there is a clear and specific public purpose for the present acquisition. (iii) It is stated that industrial projects and industrial developments are possible only when there is initiative co-ordination, and participation on the part of both the private entrepreneurs as well as the governmental agencies. (iii) It is stated that industrial projects and industrial developments are possible only when there is initiative co-ordination, and participation on the part of both the private entrepreneurs as well as the governmental agencies. In the present matter Government did nothing wrong in seeking to promote industrialization in the State and realizing the need to expand the industrial area in order to cater the need of private entrepreneur in terms of their policy of industrialization growth. At this stage it is relevant to submit about the Hero Honda Project regarding which much hue and cry has been raised by the petitioners. The project is primarily involved in manufacturing and assembly of two and three wheeler products. The project shall include setting up of ancillary units machining phase, assembly lines R and D and testing facilities training centre and other infrastructure required for operation alike warehouses, stockyard, test tractors, offices, housing facility, power generation plant etc. committed to implement suitable environment management program and intended to implement environmental management systems. The initial expected employment (direct and indirect employees) in over 1000 people. In other projects in other States they have provided employment to 33000 persons. The total proposed investment in the project would be Rs. 300 crores. Thus the project will ultimately bring employment to about 30000 persons and will benefit the public at large. (iv) The petitioners in the writ petitions have failed to submit an specific pleadings or any material documents so as to support their reckless, baseless allegations with regard to the non-application of mind on the part of the Government authority. The Court cannot accept oral assertions and bald averments, when there is no material on record to reach to the conclusion that the requirements were not properly assessed by the authorities concerned. It is primarily within the domain of the State Government to decide as to how much extent of land has to be acquired keeping in view the present and future needs. Thus, no fault can be found with the notification of the grounds. Further the Government records submitted to the Court clearly for kind perusal during oral arguments falsifies the allegations raised by the petitioner with regard, to the non-application of mind. The reply submitted by the respondents, clearly brings out the stand of the Government. (v) The petitioners have alleged the mala fides on the part of the respondents without any specific pleadings. The reply submitted by the respondents, clearly brings out the stand of the Government. (v) The petitioners have alleged the mala fides on the part of the respondents without any specific pleadings. The petitioners have also failed to prove the mala fide. The petitioners have raised allegations of dehors of the pleadings made. In view of Order 6, C.P.C., it is submitted that such allegations cannot be considered at all by this Honble Court in absence of specific pleadings. (vi) (a) The foremost issue is as to whether the land is being acquired for any public purpose. The public purpose has to be seen in context of the purpose stated in the notifications, public purpose as defined under the provisions of Land acquisition Act and public purpose as interpreted under various judgments passed by the Apex Court. (b) The Public purpose as stated in the notification is as follows Section 4 For the purpose of expansion and development of Industrial Area for notification RIICO. Section 6 For the expansion of industrial area for RIICO. Read with Section 17. Notification (c) It is stated that Section 3(f) of the Act of 1894 provides for the inclusive definition of public purpose. The present acquisition is covered by the Clauses (iv) and (iii) of Section 3(f). 3(f)(iv) Provides for the provision of land for a corporation owned and controlled by a State, to be included with the expression of public purpose. 3(f)(iii) Provides for the provision of land for the planned development of land for public finds and in pursuance of any scheme or policy of Government. In terms of Section 3(f)(iii) of the Act 1894, the expression public purpose includes the acquisition of land for planned development of land from public funds and in terms of Section 3(@(iv) the public purpose includes the acquisition of land for a corporation owned or controlled by the State. (vii) In the present case the acquisition if for expansion of industrial area at the cost of RIICO. The purpose is planned development of industries from public funds. As submitted earlier RIICO has made the payment of substantial amount totaling to Rs. 31.25 crores and the funds of the Corporation are nothing but the funds of public and hence, the planned development of land acquired is from public funds which falls within the purview of public purpose. The purpose is planned development of industries from public funds. As submitted earlier RIICO has made the payment of substantial amount totaling to Rs. 31.25 crores and the funds of the Corporation are nothing but the funds of public and hence, the planned development of land acquired is from public funds which falls within the purview of public purpose. The present acquisition and purpose for which acquisition is sought to be made is clearly covered under the aforesaid clauses. RIICO is a Government Corporation and the industrialization is a part of the planned develop-ment in pursuance of the policy of the Government. Thus the public purpose of acquisition satisfies the requirements of public purpose as provided under Section 3(f) of the Land Acquisition Act, 1894. (viii) It is necessary at this stage to point out a few observations relevant to present acquisition proceedings. India has launched upon an ambitious program of an economic advancement in order to make Indian economy competitive in the world market. Our country is anxious to attract direct foreign investment up to the maximum extent and purposes to compete with China economically. It is however, recognized in all sectors that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of industrialisation is in dire need of substantial improvement, expansion and modernization. Thus the purpose of expansion of industrial area, providing industrial area to enterpreneur is a public purpose, and is in the general interest of the community. (ix) Further with regard to the contention of the petitioners that the land is acquired for Hero Honda it is submitted that the total land acquired is 256 acid and land allotted to Hero Honda is only 100 acres. This makes it clear that the land is not acquired for Hero Honda but is acquired for the expansion of industrial area which is public purpose as held by the Honble Supreme Court in catena of judgments. (x) That since the industrialization was a time bound project and it was necessary for the State to acquire the land urgently since any delay could have effected the industrial growth as other States are always available to the entrepreneurs for establishment. Hence, the urgency provisions were rightly invoked. (x) That since the industrialization was a time bound project and it was necessary for the State to acquire the land urgently since any delay could have effected the industrial growth as other States are always available to the entrepreneurs for establishment. Hence, the urgency provisions were rightly invoked. The Honble Apex Court has upheld the validity of invocation of urgency provision even in those cases where the time bound program was not in existence and the projects for which the land was sought to be acquired were long time process. (xi) The petitioners have submitted that the acquisition initiated by the State is for a non-Government company and hence, the Government ought to have complied with the provisions of Chapter VII of Land Acquisition Act, prior to the acquisition of the land. (xii) It is submitted that the land is never sought to be acquired for Hero Honda as already stated in the above paragraphs. The contention raised by the petitioners is de hors the pleadings an the documents. Since, the land has not been acquired for Hero Honda, the provisions of Chapter VII are not at all applicable and the respondents were not required to comply with the requirements under Chapter VII of the Act of 1894. It is relevant to point out here that the entire cost of acquisition is to be borne by RIICO. (xiii) In the aforesaid context it is relevant to refer to Section 44-B of Act of 1894 which restricts the purpose of the acquisition of land under Chapter VII to the purposes mentioned in Clause (a) of sub-section (1) of Section 40 for a private company which is not a Government company. Under 40(1)(a) the purpose of acquisition has been specified to be the purpose to obtain land for the erection of dwelling houses for workmen employed by the company or for the provision of amenities directly connected therewith. (xiv) Thus in terms of restrictive scope of public purpose under Chapter VII, industrial purpose cannot be said to fall within the ambit of purpose which is covered under Chapter VII. Thus, by no imagination the scope of Chapter VII can be stretched to cover the present acquisition. (xv) The aforesaid Section clarifies that under provision of Chapter VII the land cannot be acquired for industrial purposes. Whereas in the present case the land is acquired by the State Government for industrial area. Thus, by no imagination the scope of Chapter VII can be stretched to cover the present acquisition. (xv) The aforesaid Section clarifies that under provision of Chapter VII the land cannot be acquired for industrial purposes. Whereas in the present case the land is acquired by the State Government for industrial area. (xvi) The question of invocation of Chapter VII arises only if the cost of acquisition and the expenses are incurred by the company for which the land is acquired. In the present case neither cost of acquisition of land nor any expenses have been incurred by Hero Honda. Whereas admittedly the cost of compensation totaling to about Rs. 31.25 crores have been deposited in the Court by RIICO. Moreover the total land acquired is 256 acres whereas the land allotted to Hero Honda is only 100 acres. The acquisition proceedings were initiated by the Government on 16.8.2004 whereas as per the official record it is clear that the Hero Honda showed interest in the said land for setting up an industry on 14.6.2005. The submissions made this apparently clear that the Government keeping in mind the public purpose and the public interest initiated the proceedings for acquisition of land. (xvii) The petitioners have raised the contentions that the purposed acquisition of land for industrialization will be objectionable from the point of view of ecological security. With regard to said contention it is submitted that a notification was issued on 24.9.2005 under Section 25(3) of the JDA Act 1982 wherein objections were invited with regards to the proposed change of the use of land acquired. Thereafter, after expiry of the stipulated time period for filing of the objections to the proposed change in the use of land a meeting was held on 29.10.2003 wherein the whole issue was re-examined keeping in consideration the ecological security. The matter was placed before the change in land use Committee on 24.11.2005 wherein various issues involving the acquisition of land adjacent to the Kukas Industrial Area, allotment of land to RIICO for industrial use and change in the use of land from ecological zone to industrial area were considered. The matter was placed before the change in land use Committee on 24.11.2005 wherein various issues involving the acquisition of land adjacent to the Kukas Industrial Area, allotment of land to RIICO for industrial use and change in the use of land from ecological zone to industrial area were considered. Oh 17.12.2005, Jaipur Development Authority after examining the issues and taking into account the observations of the Honbie High Court with regards to setting apart of the same chunk of land for ecological zone as the one acquired, proceeded to change the use of land from ecological to industrial area. It is also a matter of record that on 17.3.2006 a notification has been issued for inviting objections with regard to setting apart of land measuring 10391.10 Bighas as the ecological zone in compliance of the decision passed by tlhis Honble Court in the case of Yaswant Sharma vs. State. 10. Contravening these contentions learned Counsel for the appellants submitted that the material on which respondents relied upon for supporting the invocation of powers under Section 17(4) is not relevant for supporting such an exercise and there is no universal formula that the acquisition for planned industrial development necessarily has to be treated to be of an urgent nature without anything more. The applicability of Section 17(4) in the peculiar facts of the present case should be treated uncalled for. 11. In view of the rival contentions the following issues emerge for my consideration: - (i) Whether the respondents were justified in invoking Section 17(4) of the Acquisition Act for dispensing with inquiry under Section 5-A. (ii) Whether the Court should refuse to exercise powers of judicial review in the facts and circumstances of the case. 12. I proceed to deal with these issues seriatem. Issue No.1 13. The provisions of the Acquisition Act which are necessary for the disposal of the instant matters, are reproduced hereunder, - "Section 4. Publication of preliminary notification and powers of officers thereupon— (1) Wherever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette and in. Publication of preliminary notification and powers of officers thereupon— (1) Wherever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette and in. two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification. (2) Thereupon it shall be lawfull for any officer, either, generally or specially authorized by such Government in this behalf, and for his servants and workmen,- to enter upon and survey and take levels of any land in such locality; to dig or bore in the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work if any proposed to be made thereon; to make such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; Provided that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so" "Section 5-A, Hearing of objections.—(l) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for d company may, within thirty days from the date of the publication of the notification object to the Acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shrill give the objector an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government containing)" recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final. (3) For the purposes of this Section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act." "Section 17. Special powers in cases of urgency.—(1) In cases of urgency whenever the appropriate Government so directs, the Collector though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), taken possession of any land needed for a public purpose, such land shall thereupon vest absolutely in the Government, free from all encumbrances. (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 ghat-station, or of providing convenient connection with or access to any such station, or the appropriate Government consider 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 taken 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. (3) In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested, compensation for the standing crops and trees if any on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in Section 24; and in case such offer is not accepted the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. (3-A) Before taking possession of any land under sub-section (1) or sub-section (2) the Collector shall, without prejudice to the provisions of sub-section (3); (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, sub-section (2), and where the Collector is so prevented, the provisions of Section 31, sub-section (2) except the second proviso thereto, shall apply as they apply to the payment of compensation under that Section. (3-B) The amount paid or deposited under sub-section (3-A) shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section 11, the excess may, unless refunded within three months from the date of the Collectors award be recovered as an arrear of land revenue. (4) In the case of any land to which in the opinion of the appropriate Government the provisions of sub-sec. (1) or sub-sec. (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A 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 date of the publication of the notification under Section 4, sub-sec. (1)." 14. A look at these provisions demonstrates that a person whose land is to be acquired has a right to object to the proposed acquisition notified under Section 4. Such right which is available under Section 5-A cannot be denied except in case of urgency. It is thus obvious that under the scheme of Acquisition Act, before any land can be acquired, by issuing notification under Section 6, the gamut of hearing of objections to such a proposed acquisition as laid down by Section 5-A has to be followed. It is in this light that Section 17 which permits dispensing with inquiry under Section 5-A in appropriate cases has to be appreciated. 15. As applicability of Section 17(4) is under consideration, it will be necessary to find out whether there was any relevant material with the respondent State of Rajasthan to enable it to arrive at its subjective satisfaction about dispensing with the inquiry under Section 5-A in connection with the present acquisition. 16. Before dealing with the case law on the point it will be necessary to proceed quickly to glance factual backdrop leading to the present proceedings. As earlier noticed that notification dated 1.7.2005 under Section 4 of the Acquisition Act was issued by the State of Rajasthan acquiring the land of the khatedars in village Kukas for the purposes of RIICO. Before dealing with the case law on the point it will be necessary to proceed quickly to glance factual backdrop leading to the present proceedings. As earlier noticed that notification dated 1.7.2005 under Section 4 of the Acquisition Act was issued by the State of Rajasthan acquiring the land of the khatedars in village Kukas for the purposes of RIICO. After the petitioners filed objections, the LAQ proceeded with the matter and fixed four dates of hearing but since notification under Section 6 read with Section 17(1)(4) of the Acquisition Act was issued on 15.9.2005 the LAO declined to decide the objections. In the written statement, the State of Rajasthan and RIICO pleaded that industrial area earlier set up in village Kukas had saturated and there was heavy demand of industrial plots in the said area being situated in proximity to the National Highway No. 8 leading to Delhi. Therefore, considering the urgency of the situation and after due application of mind the State Government decided to invoke urgency clause of Section 17(1)(4) of the Acquisition Act dispensing with the requirement of hearing under Section 5-A of the said Act. The learned Counsel for the RIICO placed for my perusal the record of the proceedings to show that the subjective satisfaction was formed, fairly by the State Government. My attention was drawn to the ratio indicated in Rajasthan Housing Board vs. Shri Kishan, 1993 (2) SCC 84 , wherein their Lordships of the Supreme Court observed as under: - "It must be remembered that the satisfaction under Section 17(4) is a subjective one and that so long as there is material upon which the Government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority." 17. I have also scanned other judicial pronouncements cited by the learned Counsel. In First Land Acquisition Collector vs. Nirodhi Prakash Gangualy 2002 (4) SCC 160 -17, their Lordships of the Supreme Court indicated that existence of urgency is in a matter of subjective satisfaction of appropriate Government. Decision of Government to dispense with an inquiry under Section 5-A by invoking the urgency provision can be challenged only on grounds of non-application of mind and mala fide. Burden lies on the person alleging mala fide to prove the same on the basis of specific materials. Decision of Government to dispense with an inquiry under Section 5-A by invoking the urgency provision can be challenged only on grounds of non-application of mind and mala fide. Burden lies on the person alleging mala fide to prove the same on the basis of specific materials. So long purpose of acquisition and urgency to acquire continues to exist, exercise of power under Section 17 cannot be held to be mala fide. Mere delay on the part of the Government, subsequent to its decision to dispense with the inquiry under Section 5-A by exercising power under Section 17 would not invalidate the decision itself. 18. In U.O.I. vs. Ghanshyam Das Khedia, 1996(2) SCC 285 , it was held that notification need not specifically recite nature of urgency. If record discloses consideration by the Government on the matter of urgency, High Court cannot sit as a Court of appeal over the subjective satisfaction of the Government. 19. In Chameli Singh vs. State of U.P., 1996(2) SCC 549 , the Honble Supreme Court observed that the acquisition is part of the eminent domain of the State power and individuals right of an owner must yield place to the larger public purpose. It was further held that Court cannot examine the material upon which Government found opinion of invocation of urgency provisions as an appellate authority. 20. In Raja Anand Brahme Shah vs. State of U.P., AIR 1967 SC 1081 , the Constitution Bench of Honble Supreme Court held that exercise of powers of State Government under Section 17(4) is subjective and the challenge can be made to the said exercise only if it could be shown that the State Government never applied its mind to the matter or that the action of the State is mala fide. 21. In Bhagat Singh vs. State of U.P., 1992(2) SCC 384, it was held that subjective satisfaction for dispensing with the inquiry under Section 5-A is based on sufficient material and cannot be faulted. 22. In Jai Narains. Union of India, 1996 (1) SCC 9 -22, their Lordships of the Supreme Court indicated that the power under Section 4 of the Act can be exercised when it appears to the Government that land in any locality is needed or is likely to be needed for any public purpose". 22. In Jai Narains. Union of India, 1996 (1) SCC 9 -22, their Lordships of the Supreme Court indicated that the power under Section 4 of the Act can be exercised when it appears to the Government that land in any locality is needed or is likely to be needed for any public purpose". It is no doubt correct that the expression "is needed" indicates that existing need whereas the expression "is likely to be needed" refers to the future need. When the latter expression is used in the notification under Section 4 of the Act, it may be suggestive of the fact that there may not be emergency to acquire the land, but the question of urgency cannot be determined solely by the expressions used in the notification under Section 4 of the Act. The Emergency must be reflected in the need of the acquisition. The existence of urgency is a matter which is entirely based on the subjective satisfaction of the Government. The Court do not interfere unless the reasons given are wholly irrelevant and there is no application of mind. When a notification under Section 4 of the Act uses the expression "is likely to be needed" it may be necessary, in a given case to examine the records or the attendant circumstances to satisfy that there was material before the Government justifying the order under Section 17, dispensing with the provisions of Section 5-A of the Act, if the public purpose on the face of it shows that the land is needed urgently, that by itself is a relevant Circumstance for justifying the action under Section 17(4). 23. In State of U.P. vs. Smt. Pista Devi, 1986 (4) SCC 251 , it was held that where delay of one year between dates of notification under Section 4 and declaration under Section 6, this delay would not vitiate the action taken under Section 17(1). 24. Having scanned the material on record 1 notice that the respondents in their return have given two justifications for invoking urgency provisions: - (i) There are more than 1000 Khatedars who were required to be heard, therefore, inquiry under these circumstances was not possible. (Para 11 of reply) (ii) The land was urgently required for extension of industrial area as there was heavy demands on behalf of different entrepreneurs. (Para 8 of reply) 25. (Para 11 of reply) (ii) The land was urgently required for extension of industrial area as there was heavy demands on behalf of different entrepreneurs. (Para 8 of reply) 25. In Union of India vs. Deepak Bhardwaj, AIR 2004 SC 3289 , where the Government dispensed with the provisions of Section 5-A on the ground that the acquisition of land was for the purpose of development of growth point in the area, a matter of urgent need, their Lordships of the Supreme Court observed as under: (Paras 5 and 6) 5. Further, the High Court held that this case cannot be said to be a matter of grave urgency and there is total absence of material to dispense with Section 5-A. If the Government cannot ensure that inquiry be expeditiously held by the Collector under Section 5-A, it has to blame itself and it cannot thrust the adverse consequences in this behalf on the land-owners by depriving them of their rights guaranteed under Section 5-A. Further, setting up Growth Point is a part of process of development of rural areas by creating necessary infrastructure. Such works keep going on as the society grows and there are long term measures. In fact, that is why the span has been kept as 12 years in the instant case. 6. The reasons recorded by the High Court for quashing the notification issued under Section 17(1) and (4) cannot be faulted with. This does not require further discussion in view of the correspondence produced on record. This aspect has been properly dealt with by the High Court and it has become final." 26. In Om Prakash Vs, State of U.P. AIR 1998 SC 2504 , the Apex Court held that setting up industries does not come within the purview of urgency. In that case the lands were sought to be acquired by the Industrial Development Authority. Despite the invocation of urgency by the authority, NOIDA by its letter dated 14.12.1989 the State did not think the said proposal to be so urgent as to immediately respond and to issue notification under Section 4 read with Section 17(4). In that case the lands were sought to be acquired by the Industrial Development Authority. Despite the invocation of urgency by the authority, NOIDA by its letter dated 14.12.1989 the State did not think the said proposal to be so urgent as to immediately respond and to issue notification under Section 4 read with Section 17(4). The said notification was published in the newspaper on 30.3.1991 whereas the declaration under Section 6 was made on 7.1.1992 and that on the one hand authorities had deprived the land owners of filing their objections under Section 5-A on the ground of urgency of acquisition but on the other hand, they themselves had taken more than nine months in issuing the declaration under Section 6. The Supreme Court indicated that the conduct of the respondents falsified their claim of urgency of acquisition. 27. Bench of the Honble three Judges of Supreme Court in Union of India vs. Mukesh Hans, 2004 (8) SCC 14 -27, propounded in Para 32 that existence of urgency or unforeseen emergency, though is a condition precedent for invoking Section 17(4) that by itself is not sufficient to direct the dispensation with Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that alongwith the existence of such urgency or unforeseen urgency there is also a need for dispensing with Section 5-A inquiry. If that was not the intention of the legislative then the latter part of Section 17(4) would not have been necessary and the Legislature in Section 17(1) and (2) itself could have been incorporated that in such a situation of existence of urgency or unforeseen emergency. Section 5-A inquiry will be dispensed with automatically. In para 35 of the judgment it was indicated that the limited right given to an owner interested under Section 5-A to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken way for good and valid reason and within the limitations prescribed under Section 17(4). Therefore, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on materials on record to support the same and bearing in mind the object of Section 5-A. 28. Therefore, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on materials on record to support the same and bearing in mind the object of Section 5-A. 28. In Union of India vs. Krishan Lal Arneja, 2004 (8) SCC 453 , the Honble Supreme Court in Para 31 observed that Urgency for invoking Section 17 should be one arising naturally out of circumstances, which exist when the decision to acquire the land is taken and not such, which is the result of serious lapse or gross delay on the part of the acquiring authority. Normally urgency to acquire, a land for public purpose does not arise suddenly or over-night but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations, such as due to earthquake, flood or some specific time bound project where the delay is likely to render the purpose nugatory or infructuous. A citizens property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority while applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration. 29. In Narain Govind Gavate vs. State of Maharashtra, 1977 (1) SCC 133 , the Apex Court indicated that burden of proof to establish urgency is upon the State in view of Sec. 106 of the Evidence Act, for the reason that the reasons for urgency are always within the special knowledge of the officials of the State. 30. Having scanned the relevant official record 1 notice that even though the instant matter stood scrutiny upto the highest level there was no material before the State Government justifying the issuance of notification under Section 17, dispensing with the provisions of Section 5-A. Non-application of mind by the State Government to the relevant facts is evident. The Division Bench of this Court in Justice R. S. Verma vs. State of Rajasthan, 2004 (2) WLC 68 , decided on 23.2.2004 directed the State Government as under:- "5. The Division Bench of this Court in Justice R. S. Verma vs. State of Rajasthan, 2004 (2) WLC 68 , decided on 23.2.2004 directed the State Government as under:- "5. Having regard to the health of the citizens and in the interest of the ecology and environment, we direct that the parks and green areas in the cities and towns of Rajasthan shall not be allowed to be encroached upon nor shall they allowed to be converted for purposes other than park and green areas. In Yashwant Sharma vs. State, 2005 (2) WLC 559 (Raj.), the Division Bench of this Court warned the Jaipur Development Authority not to amend the Master Plan casually in future. The State of Rajasthan and the JDA were directed to maintain the ecological zone. Indisputably the land in question reserved for ecological purpose in the in the Master Plan and conversion of said land for the purpose of installing industries would amount to flouting the directions of this Court. It also appears that while issuing notice under Section 17(1)(4). Rule 2-B of the Rajasthan Industrial Areas Allotment (Amendment) Rules, 2003 escaped notice which provides as under: "2-B. Land not available for allotment under these rules -The following categories of lands shall not be allotted under these, rules, namely: (i) Land falling within the boundary limits of any railway line, National Highway, State Highway or any other road maintained by the Central or State Government or any local authority, as specified in any Act or rules of the Central or State Government made in this behalf of within the limit prescribed by the industry department under the industrial policy for establishment of industry from the middle point of National Highway/State Highway, whichever is longer or the land failing within 100 feet of the middle of any road or any rural pathway which link with villagers or important public places, either shown in the revenue map of a village or not. (ii) Land falling within the radius at 1.5 km of the outer limit of abadi of a village for the purpose of an industrial unit or lime klin or a Kreshar unit or an industrial area. The restriction shall not apply where the conversion is sought for brick klin or non- polluting industry, small or cottage industry". (ii) Land falling within the radius at 1.5 km of the outer limit of abadi of a village for the purpose of an industrial unit or lime klin or a Kreshar unit or an industrial area. The restriction shall not apply where the conversion is sought for brick klin or non- polluting industry, small or cottage industry". According to learned counsel for the respondents, the said rule is not applicable to the land in question since Rajasthan Land Revenue (Industrial Area Allotment) Rules, 1959 were framed in view of Section 92 of the Rajasthan Land Revenue Act, 1956, and they related to the land set apart by the Collector. 1 find no merit in the contention. Having closely scanned the scheme of the rules, I find that they are applicable to the land in question. 31. In the light of the aforesaid discussion, therefore, the conclusion becomes inevitable that the action of dispensing with inquiry under Section 5-A of Acquisition Act in the present case was not based on any real and genuine subjective satisfaction depending upon any relevant data available to the State authorities at the time when they issued the impugned notification dispensing with Section 5-A inquiry by resorting to Section 17(4). The first point is, therefore answered in the negative in favour of the petitioners and against the respondents. Issue No.2 32. That takes me to Issue No. 2 as to whether the Court should refuse to exercise powers of judicial review in the facts and circumstances of the case in HPC Ltd. vs. Darius Shapur Chenai, 2005(4) RLW 2407, their Lordships of the Supreme Court had occasion to consider the issue regarding power of judicial review in the matter of acquisition of land. In Para 10 of the judgment their Lordships indicated as under:- "10. The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also the purpose and in this regard ordinarily, the jurisdiction of the Court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The Court in a case, where there has been total non-compliance or substantial non-compliance of the provisions of Section 5-A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-section (3) of Section 6 of the Act renders declaration to be a conclusive evidence. But when the decision making process itself is in question, the power of judicial review can be exercised by the Court in the event the order impugned suffers from well known principles viz. illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner." 33. In Commissioner of Police Bombay vs. Goverdhan Das Bhanji, AIR 1952 SC 16 , it was observed by the Apex Court thus:- "We are clear that public orders, publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind; or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must he construed objectively with reference to the language used in the order itself." 34. Having considered oral and written submissions as well as material placed for my perusal, I am of the vi-.w that the urgency clause in the instant case, is a substitute and support for the laxity, lethargy and lack of care on the part of the State Administration. The State Government while invoking Urgency Clause did not act with due care and responsibility. The enormous power provided by Section 17(1) and (4) of Acquisition Act has not been exercised by the State Government in a fair and reasonable manner. Even the order of this Court rendered in Justice R. S. Verma vs. State of Rajasthan (supra) in the interest of ecology and environment escaped notice of the High Ups of the State Administration. The State Government even had gone to the extent of ignoring its own Statutory Rules framed to protect the National Highways. Even the order of this Court rendered in Justice R. S. Verma vs. State of Rajasthan (supra) in the interest of ecology and environment escaped notice of the High Ups of the State Administration. The State Government even had gone to the extent of ignoring its own Statutory Rules framed to protect the National Highways. In my considered opinion, which is based on the close scrutiny of photostat copies of relevant acquisition papers, decision making process of the State Government itself suffers from illegality, irrationality and procedural impropriety and it is a fit case where power of judicial review can legitimately be exercised. 35. For the reasons aforementioned, I dispose of the instant writ petitions in the following terms:- (i) Impugned Notification dated 15.9.2005 issued by invoking emergent provisions under Section 17 as well as notice under Section 9(l.)(2) of the Acquisition Act and subsequent proceedings under the said Act, shall stand set aside. (ii) The State Government shall however be at liberty to continue inquiry under Section 5-A of the Acquisition Act. (iii) There shall be no order as to costs.