THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.13712 OF 2010, WRIT PETITION No.15829 OF 2010 AND WRIT PETITION No.17002 OF 2010 Dated: 25.08.2010 In W.P. No.13712 OF 2010: Between: 1. Venkadari Srinivasulu and 2 others. … Petitioners And 1. The District Collector, Kurnool District, Kurnool and another. .. Respondents In W.P. No.15829 OF 2010: Between: 1. Bidiginchela Narasimhulu and 7 others. … Petitioners And 1. The District Collector, Kurnool District, Kurnool and another. .. Respondents A N D In W.P. No.17002 OF 2010: Between: Sura Giddaiah … Petitioner And 1. The District Collector, Kurnool District, Kurnool and another. .. Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.13712 OF 2010, WRIT PETITION No.15829 OF 2010 AND WRIT PETITION No.17002 OF 2010 COMMON ORDER: All these writ petitions are filed with a common prayer to declare the notification dated 19.5.2010 issued under Section 4 (1) of the Land Acquisition Act, 1894 for acquiring the land / structures in Dhone, Kurnool District for the purpose of construction of a Railway Over Bridge in Dhone town by dispensing with the enquiry under Section 5-A of the Land Acquisition Act is arbitrary, illegal and violative of Articles 14, 19, 21 and 300-A of the Constitution of India. It is pleaded by the petitioners that there is only one main road in Dhone town and the entire business of the town is located on both sides of the road. It is also stated that a bypass road was laid about 10 years ago connecting NH-7 and since then all the heavy vehicles are plying through bypass road and thus the main road has become fully commercial centre having connection to all the streets of Dhone town. It is contended that the impugned notification proposing to acquire the structures / land situated on the both sides of the Main road of Dhone for the purpose of construction of Railway Over Bridge with a length of 1,253 mts. covering the entire main road is quite unnecessary and the same would result in heavy loss to the Government Exchequer apart from causing total inconvenience to the people of Dhone. It is also contended that if the Railway Over Bridge with a length of 1,253 mts. is constructed, the connectivity to the two parts of the Dhone town would be cut-off and the residents would be constrained to travel more than 1 ½ kms to reach the other side and it is unanimous opinion of the residents of Dhone town that Railway Over Bridge with a length of 250 to 300 mts. is sufficient to cater the need. It is also alleged that the R & B Department in collusion with the contractors had unnecessarily increased the length of Railway Over Bridge and that apart the enquiry under Section 5-A of the Land Acquisition Act was clandestinely dispensed with to deny an opportunity to the persons interested to raise their objections. It is primarily contended on behalf of the petitioners that the impugned action of the respondents in dispensing with the enquiry under Section 5-A of the Land Acquisition Act, without there being any real urgency is arbitrary and illegal. In support of the said contention, the learned counsel for the petitioner relied upon the decisions in UNION OF INDIA v. KRISHNAN LAL ARNEJA[1] and MAHENDER PAL v. STATE OF HARYANA[2]. In the counter-affidavit filed on behalf of the respondents, it is explained that the difference of ground levels of the existing road and railway track is around 11.00 meters. The level of the road at starting point is 90.128 meters and level at the railway track is 101.158 meters. Thus the Railway track is higher than the ground level by 11.00 meters. Further the vertical clearance between the Railway track and the bridge slab level has to be maintained 9.00 meters as per the Railways Guidelines. Thus the difference between the starting point of the Road level and slab of the Bridge comes around 20.00 meters. If approaches are provided on either side for easy flow of vehicular traffic to climb 20.00 meters height as per IRC and MORT & H Specification 1 in 40 Gradient is to be maintained and therefore 1273.00 meters long approaches are to climb up and climb down the Railway Over Bridge. It is also stated that the location was identified after conducting a joint survey by the Railways and the Department of Roads & Buildings. The length of Railway Over Bridge was also decided by the Technical Committee after considering the grievances of the public. It is also explained that in Dhone town two railway tracks run parallel to each other through the heart of the town which has been creating lot of traffic congestion. So as to obviate the inconvenience being caused to the public, it has become imminent necessity to construct a Road Over Bridge across the Railway track. In the facts and circumstances, the urgency clause under Section 17 of the Land Acquisition Act has been invoked since the very purpose of acquisition would be defeated if the matter is delayed. It is also stated that the land proposed for acquisition is the only land available and no other alternative land would be found. I have heard the learned counsel for both the parties. There can be no dispute that the right to file an objection and hearing thereof to a notification issued under Section 4 (1) of the Land Acquisition Act is a valuable right which can be taken away only if the conditions precedent for exercise of the said emergency power are satisfied. As held in MAHENDER PAL’S case (2 supra) the sub- section (4) of Section 17 of the Act is an exception to Section 5-A of the Act. An opinion of the Government in this behalf is required to be formed if there exists an emergency. Existence of the foundational fact for invoking the aforementioned provision is, therefore, a sine qua non for formation of opinion. Such subjective satisfaction must be based on an objective criteria. Ipse dixit on the part of the State would not serve the purpose. In KRISHNAN LAL ARNEJA’S case (1 supra) it has been held more emphatically as under: “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 land owner of his right in relation to immoveable 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 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 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.” In the light of the law laid down by the Apex Court in the above decisions, it is necessary to examine whether in the facts and circumstances of the case on hand there is a grave urgency for dispensation of Section 5-A enquiry. It may be true that the Government thought it fit to speed up the construction of the Railway Over Bridge so as to reduce the traffic congestion and to minimise the hardship being caused to the public. It is pleaded in the counter-affidavit that on a proper survey it was opined by the Technical Committee that the proposed length is necessary for the Railway Over Bridge and that no other suitable land is available for the purpose of the construction of the Railway Over Bridge. However I am unable to hold that taking possession of the property cannot wait for a minimum period within which the objections could be received from the land owners and the enquiry under Section 5-A of the Land Acquisition Act would be completed. Having regard to the admitted fact that the proposal for construction of the Railway Over Bridge is pending for the past many years, the contention on behalf of the respondents that unless the power under Section 17 (4) is exercised the very purpose of acquisition would be frustrated cannot be accepted. The decisions cited by the learned Government Pleader namely JAGE RAM AND OTHERS v. THE STATE OF HARYANA AND OTHERS[3] and FIRST LAND ACQUISITION COLLECTOR AND OTHERS v. NIRODHI PRAKASH GANGOLI AND ANOTHER[4] in support of his submission that the delay in taking up the project is not relevant for deciding the question whether on the date on which the notification was issued there was urgency or not, are of no assistance in the light of the law laid down in later decisions in KRISHNAN LAL ARNEJA’S case (1 supra) and MAHENDER PAL’S case (2 supra). For the aforesaid reasons, the declaration under Section 6 of the Land Acquisition Act, dated 24.05.2010 is hereby set aside and the Writ Petitions are disposed of with a direction to the respondents to conduct the enquiry under Section 5-A of the Land Acquisition Act and pass appropriate orders following due process of law. The petitioners herein are permitted to submit their objections before the respondent within a period of two weeks from today and thereafter the respondent shall enquire into the same following due process of law. Now that the declaration under Section 6 of the Land Acquisition Act is set aside, it is not necessary for this Court to go into the other contentions raised on behalf of the petitioners that the impugned notification is liable to be quashed on the ground that the draft notification under Section 4 (1) and the draft declaration under Section 6 of the Land Acquisition Act were approved by the Collector, Kurnool, simultaneously. All the Writ Petitions are accordingly disposed of. No costs. ____________ G. ROHINI, J. Dt. 25.08.2010 Note:- CC in 3 days. gbs [1] (2004) 8 SCC 453 [2] (2009) 14 SCC 281 [3] AIR 1971 SC 1033 [4] AIR 2002 SC 1314