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Madhya Pradesh High Court · body

2007 DIGILAW 726 (MP)

KHURSHEED AHMED v. UNION OF INDIA

2007-07-13

DIPAK MISRA, SHUBHADA R.WAGHMARE

body2007
Judgment ( 1. ) THESE writ appellants being interlinked and interconnected were heard analogously and are disposed of by a singular order. Regard being had to the similitude of the factual matrix and the identicalness of the law involved, the facts in each case need not be exposited inasmuch as the singular exposition would sub- serve the purpose. ( 2. ) TO have a clear picture frescoed, it is seemly to state that sustainability of the order dated 20-3-2007 passed by the learned Single Judge in writ Petition No. 18305/2006 is called in question by the appellants-petitioners (hereinafter referred to as "the appellants") invoking the provisions of intra-Court appeal under Section 2 (1) of the M. P. Uchcha Nyayalaya (Khand nyaypeeth Ko Appeal) Adhiniyam, 2005. ( 3. ) THE facts which are requisite to be exposited are that a decision was taken by Air Port Authority of India to carry out the development and expansion of Airstrip in the Airport Complex of Raja Bhoj Airport, Bhopal, which was constructed in early 1960s. A requisition was made by the Airport Authority of india, the respondent No. 6 herein, to the State of Madhya Pradesh for acquisition of the land for carrying out the above purpose. Adjoining to the airport there was a vast area of land belonging to the Ministry of Defence and the said land was not put to any use and some of the land was occupied by the encroachers. The Collector, Bhopal, respondent No. 3 herein, recommended that the lands adjacent to the already existing Defence Establishment should be acquired for the Defence Department as that would be suitable for security purposes and would form a composite unit. The said Authority, after a physical demographic survey found that the land admeasuring approximately 80 acres belonging to the Defence Department is already in the possession of the Airport authority. As is evincible, the modalities for expansion of airport was discussed at various levels and eventually Ministry of Defence approved the grant of working permission on certain terms and conditions for exchange of 364. 64 acres of defence land with the same area of land of State Government for expansion of the airport. Out of the said land the Ministry of Defence agreed to immediate hand over immediately 120. 35 acres to the Airport Authority of india. 64 acres of defence land with the same area of land of State Government for expansion of the airport. Out of the said land the Ministry of Defence agreed to immediate hand over immediately 120. 35 acres to the Airport Authority of india. Remaining land was to be transferred in favour of the State Government only after the State Government transferred 120. 35 to the Local Military authorities. A condition was imposed by the Ministry of Defence that the State government would handover 364. 64 acres of land. The decision was taken, as is evident from letter dated 9-3-2006. Annexure R-2, that was addressed to the chief of Army Staff. Appendix A attached to the said letter gives details of land to be exchanged between the Ministry of Defence and the State Government. After the said decision was taken the Collector sent a proposal on 28-8-2006 to the Commissioner for grant of permission for invocation of powers under section 17 (1) read with Section 4 of the Land Acquisition Act, 1894 (for brevity the Act ). The Commissioner granted necessary permission on 4-9-2006. Thereafter a notification was issued under Section 4 read with Section 17 (1) of the Act to the effect that the land detailed in the Schedule attached thereto was required for the public purpose to compensate the land of the Ministry of defence required for expansion of Raja Bhoj Airport. The notification, as is revealable, incorporated the urgency clause which resulted in dispensation of the enquiry as contemplated under Section 5-A of the Act. The notification included the land of the petitioners and ultimately following due process as engrafted under the Act an award came to be passed on 18-12-2006 as contained in Annexure R-1. ( 4. ) BEFORE the learned Single Judge it was contended by the appellants that the acquisition of land to compensate the land of Ministry of Defence required for expansion of Raja Bhoj Airport cannot be regarded as a pubic purpose and there was no justification to invoke the emergency clause. ( 4. ) BEFORE the learned Single Judge it was contended by the appellants that the acquisition of land to compensate the land of Ministry of Defence required for expansion of Raja Bhoj Airport cannot be regarded as a pubic purpose and there was no justification to invoke the emergency clause. On behalf of the respondents it was contended that the land of Ministry of Defence was required for expansion of Raja Bhoj Airport and the Ministry of Defence had imposed a condition to part with the land for exchange of land from the State government and hence, there could be no trace of doubt that there was a public purpose for acquisition of the land. It was also contended that as an award has been passed under Section 11 of the Act the writ petition has been rendered infructuous. It was also highlighted that it was imperative to invoke the emergency clause as it was likely to be needed for a very appropriate and apposite public purpose. ( 5. ) THE learned Single Judge considering the facts and the contentions raised did not find any merit in the case of the petitioners and dismissed the writ petition. It is condign to mention that the learned Single Judge had requisitioned the record of the acquisition proceedings which revealed that the possession of the land belonging to the petitioners had already been taken over by the State Government on 9-1-2007. ( 6. ) WE have heard Mr. Alok Aradhe, learned Senior Counsel for the appellants, Mr. Mohan Sausarkar, learned Standing Counsel for Union of India and Ms. J. Laxmi Ayer, learned Counsel for the State. ( 7. ) IT is submitted by Mr. Alok Aradhe, learned Senior Counsel that the learned Single Judge has fallen into error by coming to hold that the land was acquired for public purpose. It is urged by him that the learned Single Judge should have kept himself apprised of the fact that the land was acquired contrary to the recommendations made by the Collector after survey of the land contained in Annexure A-2 to the writ petition. It is propounded by Mr. Aradhe that the facts and circumstances do not justify invocation of the emergency powers and non-application of mind is inherent in the entire act. It is also proponed by Mr. It is propounded by Mr. Aradhe that the facts and circumstances do not justify invocation of the emergency powers and non-application of mind is inherent in the entire act. It is also proponed by Mr. Aradhe that the learned Single Judge is not justified in holding that the urgency clause can be invoked by subjective satisfaction, though such subjective satisfaction cannot be totally capricious,arbitrary and cavalier in nature. Learned Senior Counsel further argued that the total land has not been used and, therefore, the conception of public purpose is not served. It is also highlighted by him that though the notification was issued on 14-9-2006 the possession was taken on 9-1-2007 and there was no use of the land which would go a long way to show that there was no justification for invocation of the emergency clause. To bolster his submission he has commended us to the decisions rendered in the cases of Dora Phalauli Vs. State of Punjab and others, air 1979 SC 1594 , State of Punjab and another Vs. Gurdial Singh and others, air 1980 SC 319 , Chandra Mani Sahu and others Vs. State of Orissa and others, air 1991 Orissa 205, Bhoomandal Singh Vs. State of M. P. and others, 1997 (1)MPLJ 547 , Om Prakash and another Vs. State of U. P. and others, (1986) 6 SCC 1, Union of India and others Vs. Kishan Lal Arneja and others, AIR 2004 SC 3582 and Union of India and others Vs. Mukesh Hans, (2004) 8 SCC 14 . ( 8. ) MR. Mohan Sausarkar, learned Standing Counsel for the Union of india and Ms. J. Laxmi Ayer, learned Counsel for the respondent-State supported the order passed by the learned Single Judge. ( 9. ) THE first question that falls for consideration is whether the land was acquired for public purpose. The land was acquired for the expansion of raja Bhoj Airport situated at State Capital, Bhopal. Acquisition of the land for the aforesaid purpose can never be regarded as for any other purpose other than the public purpose. The grievance that was putforth before the learned Single judge was that some of the land acquired was used by the Government for the other purposes that the purpose for which it was acquired and that vitiates the acquisition. The grievance that was putforth before the learned Single judge was that some of the land acquired was used by the Government for the other purposes that the purpose for which it was acquired and that vitiates the acquisition. The learned Single Judge has placed reliance on the decision rendered in the case of Government of Andhra Pradesh and another Vs. Syed akbar, (2005) 1 SCC 558 , to arrive at the conclusion that once the land has been acquired for a particular public purpose and the said public purpose is achieved by using only a portion of the land the rest of the land can be used for any other pubic purpose. Regard being had to the obtaining factual matrix we have no scintilla of doubt in our mind that the land was acquired for public purpose and if there has been diversion of use for any other public purpose the same cannot be found fault with. Hence, we concur with the said finding recorded by the learned Single Judge. ( 10. ) MR. Alok Aradhe, learned Senior Counsel, has emphatically urged that there was no justification to invoke the emergency clause to dispenses with the enquiry as contemplated in Section 5-A of the Act. Incrementing the aforesaid stance, it is argued by him that there was no such emergency which could not have brooked 30 days delay. ( 11. ) IN Dora Phalauli (supra), it has been held that for making the provision of sub-section (1) of Section 17 applicable there has to be urgency in the matter of taking immediate possession. It was also held therein that it is to be remembered that the right of a person having any interest in the property to file an objection under Section 5-A of the Act should not be interfered with in a casual or cavalier manner. ( 12. ) IN the case of Gurdial Singh (supra), it has been held as under:-"16. . . . . . It is fundamental that compulsory taking of a mans property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. . . . . . It is fundamental that compulsory taking of a mans property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power. " ( 13. ) IN Chandramani Sahu (supra), the Division Bench of High Court of orissa expressed the view as under:- "4. . . . . The use of emergency powers cannot be a usual feature and only in extra-ordinary circumstances the same can be applied. It is only where the emergency is of such a nature that it would not brook a delay of 30 days, the time requisite for filing an objection, that the emergency provisions can be resorted to. The State has to justify, if questioned, that any delay would have frustrated the purpose for which the acquisition was frustrated the purpose for which the acquisition was sought to be made and/or that great prejudice and inconvenience would have been caused. A valuable right is conferred by Section 5-A and a person whose land is sought to be acquired has a right to make representation. If the State wants to take away this valuable right of participation, it has to justify its action by showing existence of emergent situations. The emergency provisions cannot be applied casually. The purpose for which a party is granted an opportunity of filing its objections in mani-fold, in an appropriate case it can establish absence of public purpose and even suggest alternative sites. . . . . . " Their Lordships further proceeded to state as under:- ". . . . . . While it cannot be gainsaid that it depends upon subjective satisfaction of the State Government as to in which cases the emergency provisions are to be applied, yet the Court can consider whether the situations warranted resort to the emergency provisions. . . . . " Their Lordships further proceeded to state as under:- ". . . . . . While it cannot be gainsaid that it depends upon subjective satisfaction of the State Government as to in which cases the emergency provisions are to be applied, yet the Court can consider whether the situations warranted resort to the emergency provisions. It can also consider whether such emergent situations existed when enquiry under Section 5-A was dispensed with. Authorities have to indicate basis for the conclusion that there was an urgency which necessitated elimination of summary proceedings under Section 5-A. It is not just the existence of urgency, but the need to dispense with hearing of objections under Section 5-A, which has to be established by the authorities. " ( 14. ) IN Bhoomandal Singh (supra), a learned Single Judge of this Court after referring to the decision rendered in the case of Gurudiyal Singh (supra), has opined as under:- ". . . . . . It is settled law that urgency provision can be invoked only in those cases where it is not possible for the State Government or acquiring authority to wait for a long period or where the purpose is such as would not brook delay of more than thirty days. It was apparent from the facts and it was not a case which could not brook the delay of 30 days. As such dispensing with the requirement of section 5-A was not proper. " ( 15. ) IN Om Prakash (supra), a two-Judge Bench of the Apex Court while dealing with the grounds for invoking urgency clause for dispensing with inquiry under Section 5-A expressed that the scheme of the Land Acquisition Act has to be kept in view. Their Lordships after referring to Section 17 of the Act opined thus:- ". . . . . If the urgency was of such a nature that it could not brook the delay on account of Section 5-A proceedings, it is difficult to appreciate as to why Section 6 notification in the present case could be issued only after one year from the issuance of Section 4 notification. No explanation for this delay is forthcoming on record. . If the urgency was of such a nature that it could not brook the delay on account of Section 5-A proceedings, it is difficult to appreciate as to why Section 6 notification in the present case could be issued only after one year from the issuance of Section 4 notification. No explanation for this delay is forthcoming on record. This also shows that according to the State Authorities, there was no real urgency underlying dispensing with Section 5-A inquiry despite NOIDA suggesting at the top of its voice about the need for urgently acquiring the lands for the development of Sector 43 and other sectors. . . . . " ( 16. ) IN this context, we may refer with profit to the decision rendered in the case of Siyaram and others Vs. State of M. P. and others, 1999 (2) JLJ 361 , wherein the Division Bench while dealing with a notification issued under section 4 (1) read with Section 17 of the Act expressed the view that the Courts have to see public interest vis-a-vis private interest while exercising power under article 226 of the Constitution of India. ( 17. ) IN this regard it is fruitful to refer to observations made by the Apex court in Jai Narain and others Vs. Union of India and others, AIR 1996 SC 697 , wherein it has been ruled thus:- "the power under Section 4 of the Act can be exercised when it appears to the Government that the "land in any locality is needed or is likely to be needed for any public purpose". It is not doubt correct that the expression "is needed" indicates the existing need whereas the expression "is likely to be needed" refers to the future need. When the later 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. The emergency must be reflected in the need of the acquisition. The existence of urgency is a matter which is entirely based on subjective satisfaction of the government. The Courts do not interfere unless the reasons given are wholly irrelevant and there is no application of mind. The emergency must be reflected in the need of the acquisition. The existence of urgency is a matter which is entirely based on subjective satisfaction of the government. The Courts do not interfere unless the reasons given are wholly irrelevant and there is no application of mind. If the public purpose on the face of its shows that the land is needed urgently that by itself is a relevant circumstance for justifying the action under Section 17 (4 ). " ( 18. ) IN Krishan Lal Arneja (supra), a two-Judge Bench of the Apex court has opined thus:- "17. Section 17 confers extra-ordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however, laudable it may be by itself is not sufficient to take aid of section 17 to use this extra-ordinary power as use of such power deprives a land owner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The Authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor, i. e. , whether taking possession of the property can wait for a minimum period within which the objections could be received from the land owners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extra-ordinarily 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. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extra-ordinarily 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. " ( 19. ) IN Mukesh Hans (supra), a three-Judge Bench of the Apex Court expressed the view in Paragraphs 31 and 32 as under:- "31. Section 17 (4) as noticed above provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency or unforeseen emergency as required under sub-section (1) or (2) of Section 17 it may direct that the provisions of Section 5-A shall not apply and if such direction is given then section 5-A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of 4 (1) notification possession can be made. 32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows mere 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 dispension of 5-A inquiry. It requires an opinion to be formed by the concerned Government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5-A inquiry which indicates that the legislature intended that the Appropriate Government to apply its mind before dispensing with 5-A inquiry. It also indicates the mere existence of an urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) would not by themselves be sufficient for dispensing with 5-A inquiry. It also indicates the mere existence of an urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) would not by themselves be sufficient for dispensing with 5-A inquiry. If that was not the intention of the Legislature then the latter part of sub-section (4)of Section 17 would not have been necessary and the Legislature in Section 17 (1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5-A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with 5-A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the Appropriate Government while dispensing with 5-A inquiry does not mean that in and every case when there is an urgency contemplated under Section 17 (1) and unforeseen emergency contemplated under Section 17 (2) exists that by itself would not contain the need for dispensing with 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17 (1) or the unforeseen emergency under Section 17 (2) itself may be of such degree that it could require the Appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the Appropriate Government that such an urgency for dispensation of the 5-A inquiry is inherent in the two types of urgencies contemplated under Section 17 (1) and (2)of the Act. " ( 20. ) IN the aforesaid case Their Lordships referred to the decision rendered in Munshi Singh Vs. Union of India, (1973) 2 SCC 337 , wherein it has been held as under:- "7. Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. The legislature has made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. The legislature has made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the Appropriate Government to dispense with the provisions of section 5-A. " ( 21. ) THE present factual matrix is to be tested on the anvil and touchstone of the aforesaid enunciation of law. On a studied scrutiny of the principles enunciated in the aforesaid decisions it is luminescent that a satisfaction has to be reached on a germane and cogent reasons; there has to be proper and apposite application of mind; the power of invoking urgency clause being extra-ordinary, the real urgency must emanate from the situation : it is necessary to consider whether the delay would defeat the purpose; it is to be scrutinised whether the lethargy of the State has been substituted by taking recourse to the urgency clause; it is to be scanned whether the rights of the citizens have been curtailed and abridged in an arbitrary manner; and whether the urgency or the unforeseen emergency is of such a degree that the enquiry under Section 5-A has to be dispensed with and whether the special powers have been adequately and appositely exercised to marginalize the minimal right that the statute conferred on the citizen to file his objection. ( 22. ) IN the case at hand, it is evincible that the Ministry of Defence had agreed to grant permission for exchange of 364. 64 acres of Defence land with same area of land of the State Government for expansion of an Airport. The ministry of Defence agreed to handover 120. 35 acres immediately to Airport authority of India for expansion of Airport with the stipulation that the transfer of the remaining land to the State Government would be given effect to only after the State Government transfers 120. 35 acres to the local Military authorities. The decision that was taken by the Ministry of Defence has been brought on record as Annexure R-2, which is a communication from the Under secretary to the Government of India in the Ministry of Defence to the Chief of army Staff. The relevant conditions incorporated therein read as under:- " (i) Out of 364. 64 acres of defence land being transferred to madhya Pradesh State Government, 120. The relevant conditions incorporated therein read as under:- " (i) Out of 364. 64 acres of defence land being transferred to madhya Pradesh State Government, 120. 55 acres will be handed over to Airport Authority of India for expansion of bhopal Airport. (ii) Madhya Pradesh State Government will pay to Ministry of defence and Local Military Authority the cost for the affected building/assets existing on the defence land being transferred in exchange. Details of assets created from government Funds and Regimental Funds (local Military authority) are given in Appendices B and C attached. As per the present assessment of the cost of these assets is tentative, actual cost will be incorporated in the formal government sanction. (iii) Madhya Pradesh State Government will handover 364. 64 acres of land, as per details given below, to the Ministry of defence, after suitably compensating the affected private land owners within a period of six months from the date of issue of this letter :- (a) Mubarakpur (State Government land - 84. 00 acres) - 134. 00 acres (Private land- 50. 00 acres) (b) Berkheda-Bondar (State Govt. land - 4. 77 acres) - 126. 00 acres (Private land -121. 23 acres) (c) Meerpur (State Government land - 0. 25 acres) - 104. 64 acres (Private land - 104. 39 acres)Total 364. 64 acres (iv) While 120. 35 acres of defence land will be transferred to the state Government immediately the transfer of remaining land between the Ministry of Defence and the State Govt. of Madhya Pradesh will be effected concurrently only after the State Government land in lieu of the transferred 120. 35 acres has been handed over to Ministry of Defence/lma. " ( 23. ) FROM the aforesaid letter it is quite vivid that a time frame was fixed. Three aspects which cannot be lost sight of are : (i) that there was need to acquire the land for expansion of the airport and the land that was required to be acquired are suitable for the purpose of the defence; (ii) that the land that belongs to the defence was suitable for expansion; (iii) and that the Ministry of defence had imposed certain terms and conditions and had also fixed the time limit to acquire the land by suitable compensating the affected persons. The establishment of Airport irrefragably is a public purpose and the suitability of the land had to be adjudged by the Competent Authority. The same has been done in an apposite manner. Certain land situate in Village Mubarakpur which the State had proposed to acquire was not found suitable due to security reasons by the Ministry of Defence. The same is manifest from the language employed in annexure R-4. Had there been the need only to acquire the land of any kind, category and from any other purpose the matter would have been totally different. The land that was acquired was needed to be given to the defence in lieu of the defence land. The State Government had made an endeavour to give some other land to the defence in lieu of land but the same was not acceptable by the defence for security reasons. The State could not have questioned the security reasons to the Defence. The suggestion for exchange of land was considered mutually and accepted. A time frame was fixed. The need of the defence of exchange of land and the need of the Airport Authority of India to expand the Airport are to be appreciated to understand the factum of urgency. These aspects, as we perceive, have been taken note of. Hence, the invocation of urgency clause, as engrafted under Section 17 (1) by the State Government cannot be found fault with. There was immediacy and the delay would have defeated the purpose. Additionally, we cannot be oblivious of the fact that the land Acquisition Collector has proceeded with the matter and some of the land owners had contested with regard to the valuation spectrum before the Land acquisition Collector and eventually an award has been passed as per Annexure r-1. Quite apart from the above the possession has been taken over on 9-1-2007. That apart larger public interest tilts in favour of the State. ( 24. ) JUDGED from all these spectrums, we are of the considered opinion that the view expressed by the learned Single Judge is presentable and we concur with the same. ( 25. ) RESULTANTLY, the writ appeals, beingsans substratum stand dismissed without any order as to costs. Writ Appeals dismissed.