IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24-07-2007 CORAM : THE HONOURABLE MR.JUSTICE A. KULASEKARAN W.P. Nos. 6889, 27402, 36954, 37189, 42934, 48687 of 2006 WP No. 6889 of 2006 Ambikapathi @ Vinayagam .. Petitioner Versus 1. Union Territory of Pondicherry rep. By its Chief Secretary Pondicherry 2. The Secretary Department of Revenue and Disaster Management Pondicherry 3. The Additional Secretary (Revenue) Land Acquisition Officer Department of Revenue and Disaster Management Pondicherry .. Respondents WP No. 6889 of 2006: Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari calling for the records relating 4 (1) notification to G.O.Mis.No.15 dated 20.02.2006 and the Section 6 Declaration in G.O.Misc No.23 dated 28.02.2006 of Revenue and Disaster Management Department, Union Territory of Pondicherry and quash the same. WP.No.27402/2006: 1. A.Purushothaman 2. A.Muthukrishnan ..Petitioner. -Vs- 1. Union of India, rep. By The Addl. Secretary [Revenue] Government of Pondicherry, Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ 2. The Deputy Collector[Revenue] North cum Land Acquisition Officer, Revenue Department, Pondicherry. ..Respondents. Petition filed under under Article 226 of the Constitution of India, to issue a Writ of Certiorari calling for the records relating to proceedings No.632/DCR/N/LA/U/2005/PET Pondicherry dated 9.5.2006 and consequential Notice No.629/DCR[N] LA/U/2005 Pondicherry, dated 26.5.2006 issued by the 2nd respondent and quash the same. WP.No.36954/2006: A.Muthukrishnan ..Petitioner. -Vs- 1. The Additional Secretary[Revenue] Revenue and Disastrous Management Department, Pondicherry. 2. Sub District Collector, [Revenue] cum Land Acquisition Officer, Revenue Department, Pondicherry. ..Respondents. Petition filed under Article 226 of the Constitution of India, for a Writ of Certiorari, calling for the records leading to the impugned notification of the first respondent in Government Order Misc. No.74, dated 15.9.2006 in respect of the petitioner's land in S.No.A/15/32/2, situated in Solai nagar, Pondicherry and quash the same. WP.No.37189/2006: M/s.Akar Associates, a Registered Partnership Firm, rep. By its Partner, Mr.Kanu U.Mistry, having their office at NO.1, Rue-Baslieu, Pondicherry – 605 001. ..Petitioner. -Vs- 1. Government of Pondicherry, Rep. By its Secretary, Revenue Department, Pondicherry. 2. The Deputy Collector[Revenue] North cum Land Acquisition officer, Pondicherry. ..Respondents. https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari, calling for the records from the Respondents in so far as it relates to Section 4[1] Notifications issued in G.O.Ms.No.18, dated 20.2.2006 and declaration under Section 6 of the Act by G.O.Ms.No.22, dated 28.2.2006 in so far it relates to petitioners land in T.S.No.B/17/91/2 in Saint Fracois Street, Kurusukuppam, Pondicherry, Revenue Village, Pondicherry and quash the same. WP.No.42934/2006: 1. Krishnasamy @ Ramanujam 2. Krishnasamy @ Krishnan 3. Padmanabhan S/o. Arumugam ..Petitioner. -Vs- 1. The Additional Secretary[Revenue] cum Disaster Management, Government of Pundicherry, Saram, Pondicherry 13. 2. The Land Acquisition Officer, Deputy Collector – Revenue, Saram, Pondicherry 13. 3. The Chief Secretary to Government, Government Chief Secretariat, Goubert Avenue, Union Territory of Pondicherry, Pondicherry 605 001. ..Respondents. Petition filed under Article 226 of the Constitution of India, for a Writ of Certiorari, calling for the records on the file of the 1st Respondent in G.O.Ms.No.88, dated 5.10.1006 in so far as the lands of the petitioners are concerned in S.O.No.2 to 10 mentioned in the Notification and quash the proceedings therein as illegal, incompetent and without Jurisdiction. WP.No.48687/2006: 1. A.Purushothaman 2. A.Muthukrishnan ..Petitioners. -Vs- 1. Union of India, rep. By the Additional Secretary[Revenue] Government of Pondicherry, Pondicherry. 2. The Deputy Collector [Revenue] North cum Land Acquisition Officer, Revenue Department, Puducherry. ..Respondents. https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari, calling for the records relating to declaration issued under Section 4 in G.O.Ms.No.14, [Revenue and Disaster Management] dated 20.2.2006, and published in Gazette of Pondicherry in No.9, dated 28.2.2006, and the Declaration issued under Section 6 of Land Acquisition Act in G.O.Ms.No.32, dated 22.5.2006 and published in Gazette of Pondicherry in No.23, dated 6.6.2006 and quash the same. For Petitioners : Mr. K. Sukumaran in WP 6889 of 2006 Mr. A.L. Somayaji, Senior Advocate for Mr. D. Krishnakumar for WP Nos. 27402 & 48687/2006 Mr. P. Sathish in WP No. 36954 Mr. S.A. Hafiz in WP No. 37189 Mr. V. Raghavachari in WP No. 42934 For Respondents : Mr. T. Murugesan Government Pleader (Pondicherry) COMMON ORDER The issue involved in all these writ petitions are one and the same, hence, they are disposed of by this common order. 2. The case of the petitioners in all these writ petitions are as follows:- The lands of the petitioners herein were sought to be acquired by the respondents by invoking the urgent provisions of Land Acquisition Act (Act I of 1894) hereinafter referred to as the Act for the purpose of providing house sites to Tsunami affected victims dispensing with the enquiry under Section 5-A of the Act thereby the petitioners were deprived of their valuable right to make objections against the acquisition of their lands and there is no real urgency as on the date of the issuance of notification. There are vast vacant poromboke lands available, but without acquiring it, they sought to acquire the lands of the petitioners. In some of the petitioners lands, fruit bearing trees, coconut grove, palmirah trees etc., were raised and that their lands are situate within the prohibited distance of costal area where houses cannot be built. 3. Mr. A.L. Somayaji, learned Senior counsel appearing for the petitioners in WP No. 27402 & 48687 of 2006 argued that the petitioners are the owners of the land to an extent of 0.23.10 hectares comprised in T.S. No.A/15/25 of Pondicherry Village, which is the only source of their livelihood; that during September 2005, the respondents visited the property of the petitioners for an inspection and the petitioners also objected to the same by submitting representations, but no reply was received; that the petitioners also appeared for the enquiry and submitted their objections on 19.05.2006; that on 26.05.2006, again, the petitioners were asked to appear for an enquiry under Section 9 (2) of the Act and https://hcservices.ecourts.gov.in/hcservices/ accordingly, the petitioners also appeared and submitted their objections, but the same was not considered; that during the course of hearing, the petitioners came to know that the respondents have issued the notification under Section 4 and the declaration under Section 6 in G.O. Ms. No.32 dated 22.05.2006 dispensing with the enquiry under Section 5A of the Act on the ground that there is an urgency in acquiring the lands for rehabilitation of victims of Tsunami at an early date; that Tsunami caused massive destruction on 26.12.2004, whereas, the respondents have issued the notification under Section 4 (1) of the Act in G.O. Ms. No.14 only on 20.02.2006; that mere existence of urgency or unforseen urgency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry, which is absent in this case; that the adjacent lands comprised in Survey Nos. 15/4, 15/5, 15/26 were deleted but chosen to acquire only the lands of the petitioners; that 80% compensation is required to be paid or deposited as contemplated under Section 17 (3) (A) of the Act, which was not done in this case and prayed for allowing of the writ petitions. In support of this contention, learned Senior counsel for the petitioners relied on the decision reported in i) (Union of India and others v. Krishan Lal Arneja and others) AIR 2004 SC 3582 wherein in Para No.17, it was held thus:- "17. Section 17 confers extraordinary 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 extraordinary power as use of such power deprives a landowner 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 landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exerci sed, 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 extraordinarily depending on situations such as due to https://hcservices.ecourts.gov.in/hcservices/ earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen’s 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." The above decision was relied on by the learned Senior counsel for the petitioner to say that gross delay or lapse on the part of the acquiring authority or in the absence of any material to show subjective satisfaction is no ground to invoke the urgency clause. 4. Mr. Hafiz, learned counsel appearing for the petitioner in WP No. 37189 of 2006 submitted that the petitioner's land in T.S. No.B/17/91/2 is a developed one; that the layout was approved on 29.08.2000 and the property is provided with electricity, water and drainage connection, besides that mutation was effected and patta was also issued; that the respondents not mentioned the name of the petitioner in the acquisition proceedings but passed the award in the name of the erstwhile land owner; that the dispensation of enquiry under Section 5-A of the Act without valid reasons would render the acquisition proceedings invalid and prayed for allowing of the writ petition. 5. Mr. Sathish, learned counsel appearing for the petitioner in WP No. 36954 of 2006 submitted that the petitioner's property is a residential house in S.No.A/15/32/2; that the adjacent property are open land and playground, which are not acquired by the respondents. The learned counsel for the petitioner also adopted the argument of the other counsel in respect of the alleged non-compliance of mandatory provisions of the Act by the respondents. 6. Mr. Raghavachari, learned counsel appearing for the petitioner in WP No. 42934 of 2006 submitted that the petitioner is the owner of the property in Survey Nos. 122/5 and 122/9 and 122/10 of Puranakuppam Village; that the said lands are fertile lands wherein the petitioners have raised more than 10000 fruit yielding coconut trees, teak wood and other fruit bearing trees; that the lands of the petitioners are sought to be acquired by invoking the provisions of Section 17 of the Act thereby the respondents have attempted to by-pass the normal course of hearing; that though Tsunami stated to have hit the villages on 26.12.2004, the respondents have invoked the urgency clause for providing house sites only on 05.10.2006, thus, the action of the respondents in seeking to acquire the lands by invoking the urgency clause is motivated and malafide; that the alleged beneficiaries to whom the house sites are to be provided are already owning property worth Rs.10 to 20 lakhs and they do not require the beneficial arm of the State at all; that the property adjoining lands to an extent of 20 hectares in Sl.No.12 to 34 are located at a higher https://hcservices.ecourts.gov.in/hcservices/ level and there are no standing trees and the land owners are also willing to part with their lands, but those land are not sought to be acquired by the respondents; that these facts were brought to the notice of the respondents by letter dated 09.10.2006, but the same is not disposed of till date; that invoking the urgency clause is totally uncalled for and unwarranted and prayed for allowing of the writ petition. 7. Mr. Sukumaran, learned counsel appearing for the petitioner in WP No. 6889 of 2006 contended that the petitioner's land in S.No.A/24/69/2 and that the invocation of urgency clause under Section 17 of the Act is against Law; that there is a delay of 14 months in invoking the provisions of urgency clause for dispensing with the enquiry under Section 5-A of the Act; that the respondents, having waited for 14 months, it cannot be said that there existed an urgency in this case; that the notification under Section 4 (1) of the Act was issued just prior to the elections to secure vote banks; that the notifications under Section 4 (1) and 6 were not issued in accordance with the Act; the modes of publication prescribed under the Act have not been complied with; that the proposed lands are situated within 200 meters from High Tide Line that too in the 'No development zone" as per the Coastal Regulation Zone notification where no construction activity is permitted; that no prior environmental clearance certificate has been obtained; that respondents have taken policy decision not to acquire grove for providing residence which is deliberately violated in this case. 8. On behalf of the petitioners, the below mentioned decisions were relied on. i) (Union of India v. Mukesh Hans) AIR 2004 SC 4307, wherein the Honourable Supreme Court in Para No.32, held thus:- " 32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that 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 dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 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 Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion https://hcservices.ecourts.gov.in/hcservices/ requires the appropriate Government to further consider the need for dispensing with Section 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 Section 5-A inquiry does not mean that in each 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 Section 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 Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act." The above decision was relied on to say that the need for application of mind by appropriate government is inherent in urgency contemplated under Section 17 (1) as well as unforseen emergency under Section 17 (2). If the authority is not appraised of all necessary and relevant facts before he took a decision, the order, dispensing with the enquiry under Section 5-A suffers from non-application of mind. ii) (Union of India v. Deepak Bhardwaj) (2004) 13 SCC 85 wherein the Honourable Supreme Court, in Para No.5 and 6, it was held thus:- 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 for a decision 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 landowners by depriving them of their rights guaranteed under Section 5-A. Further, setting up of a 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 these are long-term measures. In fact, that is why the span has been kept as twelve years in the instant case. 6. The reasons recorded by the High Court for quashing the notification issued under Sections 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. https://hcservices.ecourts.gov.in/hcservices/ In this case, the Honourable Supreme Court held that there is total absence of material for a decision to dispense with the enquiry under Section 5-A of the Act, hence, the reasons recorded by the High Court for quashing the notification cannot be faulted with. 9. Mr. Murugesan, learned senior counsel and Government Pleader appearing for the respondents in all these writ petitions has advanced common argument reiterating the contents of the separate and common counter and submitted that acquisition proceedings is sought to be initiated for the purpose of rehabilitating the Tsunami affected persons after making preliminary inspection by the Lieutenant Governor, Chief Minister and Land Acquisition Officers along with the Surveyors and the lands are found fit for construction of house sites to the said affected persons; that the approval for invoking the emergency provision was given by the Lt. Governor and immediately, the notification under Section 4 (1) of the Act was published in leading newspapers by dispensing with the enquiry under Section 5-A of the Act and thereafter the declaration under Section 6 of the Act was issued; that in some of the petitioners land, coconut trees are there but numbers are inflated; that in the lands of the petitioner in WP No. 42934 of 2006, about 629 trees are available; in the lands of the petitioner in WP No. 6889 of 2006, 66 coconut trees are available which is evident from the report submitted by the Deputy Collector; that the Government has taken a policy decision to cut only a small number of the trees, that too if hindrance to the construction and a major number of trees will not be disturbed besides that they have decided to plant five trees for every single tree which is being cut and so far one lakh saplings were planted; that there is no motive or malafide action in initiating the acquisition proceedings; that the Tsunami hit the costal areas on 26.12.2004 and the rescue and relief operations itself took about three months for the administration and in the meanwhile, the Government thought it necessary to rehabilitate the surviving victims permanently, therefore, a high level committee was constituted by the Chief Minister for formulation of a permanent rehabilitation measure and consequently G.O. Ms. No.29 dated 15.03.2005 was issued for regulating the construction of permanent houses; that the process of initiating acquisition proceedings required multiple meetings to be held under the Chairmanship of Lt.Governor/Chief Minister with different groups of people and participation of representatives of public and village panchayat etc., that the technical committee consisting of Chief Town Planner, Director of Fisheries, Fisherman Welfare, Deputy Collector and Joint Project Director was constituted as per G.O. Ms.NO.101 dated 17.08.2005 for identification of lands and in the meantime, general election for Puducherry Legislative Assembly was announced by the Election Commission of India and model code of conduct was in force from 01.03.2006 to 20.05.2006, hence, the entire acquisition process was kept in abeyance and on conclusion of the general elections on 21.05.2006, the acquisition proceedings have been continued again, therefore, the question of delay in invoking the urgency provision does not arise; that the urgency cannot be considered taking into account of the event but only the requirement; that the Lt. Governor along with the Chief Minister and others have personally visited the petition mentioned lands; that out of 8 villages, the lands identified for acquisition were in Solai Nagar, Vaithikuppam and Kurusukuppam, hence, invoking urgent provisions, notification under Section 4 (1) and https://hcservices.ecourts.gov.in/hcservices/ declaration under Section 6 of the Act were made as mentioned below:- Date of Approval Notification U/sec. 4(1) Declaration U/sec. 6 P-5 Solai Nagar (N) GO MS No.14 dt.20.02.2006 GO Ms No.32 dt. 22.05.2006 Nagar (Additional land) GO Ms.74 dt. 15.09.2006 To be issued P-5B Solai Nagar (S) GO Ms.15 dt. 20.02.2006 GO Ms. 23 dt. 28.02.2006 P6 Vaithikuppam – I GO Ms.16 dt. 20.02.2006 GO Ms No.24 dt. 28.02.2006 Vaithikuppam – II GO Ms.17 dt. 20.02.2006 GO Ms.25 dt. 28.02.2006 P-7 Kurusukuppam GO Ms.18 dt. 20.02.2006 GO Ms.22 dt. 28.02.2006 The above said details show that the time taken for processing the land acquisition was very short as in five cases it was only 8 days between 4 (1) notification and 6 declaration, in the case of Solai Nagar only, it took 3 months, which is also very lesser considering the statutory limit of one year; that even the said period of three months was necessiated because of the discussion with the villagers, who requested to drop the acquisition in respect of temple land; thus, there is no delay at all in invoking the urgency provision, hence, the averment that the urgency clause was invoked after lapse of 14 months is absolutely without any merit; that the petition mentioned properties are within CRZ II zone where re-construction is permissible in as much as that area lies within the habitation site and on the land-ward side of the existing roads; that already notification mentioning the area and survey numbers were issued by Government of Pondicherry in G.O. Ms. No.18/93 Hg dated 31.12.1993 classifying CRZ-II where construction activities are permitted; that in so far as the petitioner in WP No. 27402 of 2006 is concerned, possession was taken already, the lands of the petitioner in WP No. 36954 is not taken, the possession of the lands of the petitioner in WP No. 37189 of 2006 was taken; that the possession of the lands of the petitioner in WP No. 42934 of 2006 is not taken, thus, in entire lot 1/10 lands are concerned the six writ petitions have been filed, the remaining 9/10 lands are concerned, there is no objection from the land owners in which 2/3 extent constructions were made; that in respect of the lands covered in these writ petitions, the Government of Maharashtra have offered to construct 2000 house sites at free of costs; that because of the