1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR W.P.No.144/2008 Ishwardayal Kapurchand Bisen vs. The State of Maharashtra, through the Collector, Gondia and others. --------------------------------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. --------------------------------------------------------------------------------------------------------- Mr. S.V. Sirpurkar & Mrs. R.S.Sirpurkar, Advocates for the petitioners. Mrs. Dangre, Addl. G.P. for respondents 1 to 5. CORAM : B.H.MARLAPALLE & A.H.JOSHI, JJ DATE OF RESERVING : 5.12.2008 DATE OF PRONOUNCEMENT: 11/12/2008. Heard Mrs. Sirpurkar, the learned counsel for the petitioner. Mrs. Dangre, the learned Additional Government Pleader appears for the respondent nos. 1 to 5 and the respondent no.4 has filed affidavit as well as additional affidavit on behalf of the respondent nos. 1 to 5. 2. The petitioner, who owns agricultural land in gat no. 720 of village Banathar, taluka and district Gondia, has challenged the acquisition proceedings initiated by the Collector, Gondia for the resettlement of the flood affected persons and prayed for quashing of the notification dated 3.5.2007 issued under section 4(1) of the Land Acquisition Act, 1894 (“the Act” for short) as well as the declaration dated 14.8.2007 under section 6 2` and the notice dated 12.10.2007 under section 9 of the said Act. 3. It is submitted that by the notice dated 25.6.2007 he was informed that the inquiry under section 5 -A of the Act was dropped in view of the urgency needed to acquire the land and there is no case made out of any urgency beyond merely saying that there was an urgency in acquiring this land. In short, it is submitted that the respondents have failed to make out a case of urgency in acquiring the subject land and thus defeated the petitioner's valuable right under section 5- A of the Act. In addition, it is the case of the petitioner that the subject land is the source of his livelihood and if it is acquired, the petitioner and his family members would be forced to starvation as farming is the only source of his survival. He states that acquiring authorities have not applied their mind to this vital aspect and the action of the respondents authorities smacks of premeditated mala fide exercise of power. The third ground raised by the petitioner is on the basis of alternative and suitable land being available for acquisition for the re-settlement of the flood affected persons of village Badegaon, Dist. Gondia. The petitioner has pointed out the alternative land of village Jagan Tola which is, as per the petitioner, within the distance of less than 5 Kms. from village Badegaon or Banathar. He has referred to gat nos. 12, 13, 58 to 60, 281 and 281 of 3` village Jagantola. 4. The learned counsel for the petitioner has relied upon the decisions of the Apex Court in the case of Union of India vs. Mukesh Hans (2004(8) SCC, 14 and Devinder Singh vs. State of Punjab (2007 (12) Scale, 496 and in addition she has also relied upon the Judgment of this Court in Damodhar Laxmanrao Kumbodh by LRs vs. Pramod Damodharrao Kumbodh and others (2008 (5) Mh.L.J., 123). 5. So far as the decision in the case of Devinder Singh (supra) is concerned, the acquisition was for a company incorporated under the Companies Act, 1946. In the case of Mukesh Hans (supra) the Supreme Court dealing with the urgency clause has stated as under: a) Sub section 1 to Section 17 contemplates taking possession of the land in the case of an urgency without making an award but after the publication of the Section 9(1) notice and after the expiration of 15 days of publication of the said notice, b) If the appropriate Government decides that there is an urgency to invoke Section 17(1), in the normal course Section 4(1) notice will have to be published, Section 6 declaration will have to be made and after completing the procedure contemplated under Sections 7 4` and 8, Section 9(1) notice will have to be given and on an expiration of 15 days from the date of such notice the authorities can take possession of the land even before passing of an award; c) Section 17(4) provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency within the meaning of Section 17 (1), 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 Section 4(1) notification; d) Mere existence of urgency, though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended that 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) would not by itself be sufficient for dispensing with section 5-A inquiry. 6. This court in the case of Damodhar (supra) stated that the following requirements/ tests could 5` emerge from various enunciations of the superior courts relating to the invocation of powers under Section 17(4) of the Act while doing away with the inquiry under Section 5-A of the said Act. a) Urgency in completing a project cannot be equated to urgency which makes it necessary to even skip inquiry under Section 5-A of the Act. b) The question of subjective satisfaction of an authority in forming the opinion that enquiry under Section 5-A should be done away with is one of fact, to be determined with reference to totality of circumstances. c) Pre-notification delay is not necessarily indicative of absence of urgency. d) Failure to issue declaration under Section 6 simultaneously, or soon thereafter too is not necessarily indicative of absence or urgency. e) Skipping enquiry under Section 5-A should not be routinely resorted to or allowed by Courts, since it is the only opportunity afforded to the owner of property to raise his objections to compulsory acquisition. 7. The learned counsel also submitted that the State Government while initiating the impugned acquisition proceedings has acted in breach of the Manual of Land Acquisition for the State of Maharashtra. She relied upon the following provisions in the Manual. 6` “The Land Acquisition (Amendment) Act, 1962 and the Land Acquisition (Co) Rules, 1963 require that the good agricultural lands should not be acquired except in unavoidable circumstances. Though these provisions specifically refer to acquisition under Part VII of the Act, they equally hold good as a policy for acquisition under Part – II also. In case acquisition of good agricultural land is unavoidable, the acquisition officer should explain the reasons for the same while proposing acquisition of the said land”. 8. In this regard, she has relied upon the following observations made by this court in the case of Kawadu vs. State (1977 Mh. L.J., 6) in which a Division Bench of this Court held that the instructions in Manual of Land Acquisition for Maharashtra are required to be followed while acquiring the land under the Act. 9. The learned counsel further pointed out in her re-joinder that the State Government for construction of Primary Health Care Centre at Kochewahi (Rajegaon), which is 3 Kms from Banathar, has acquired the forest land and, therefore, the contention of the State Government that the alternative land from gat nos. 522, 528 and 519 from village Banathar as suggested by the petitioner could not be acquired is a farce and the acquisition proceedings are arbitrary and contrary to the 7` scheme of the Act. 10. The impugned notification under Section 4(1) of the Act sought to acquire 3 hectare and 27 R land from the following surveys/ gat numbers of village Banathar, Taluka and District: Gondia. Survey / Gat Number Area H R i) 61 1 11 ii) 720 1 40 iii) 788 0 36 iv) 789 0 40 11. The land was sought to be acquired for the re- settlement of the flood affected persons of village Badegaon, Taluka and District: Gondia and the distance between Badegaon and Banathar is about 2 Kms.. The village Badegaon is situated on the bank of the river “Bagh”. In the year 2004-05 and 2005-06 the Bagh river had over flooded due to heavy rains and it affected approximately 135 families of village Badegaon, which is located on the lower level. The Government of Maharashtra issued its Resolution dated 9.1.2006 for the re-settlement of the villages/ houses which were affected due to the floods in the year 2005. It stated that in the flood affected areas in 15 districts consisting of about ten 8` thousand families, it was necessary to undertake the re- settlement urgently. The village Badegaon, as stated in the affidavit of the Sub Divisional Officer, Gondia, falls in blue zone i.e. flood affected village. A detailed survey of red zone and blue zone of the flood affected village Badegaon was conducted so as to locate suitable land for rehabilitation of the flood affected families in the nearby village in anticipation of the onslaught of rains in the following monsoon. The Village Panchayat, Badegaon passed a resolution for the rehabilitation of the said village and on the basis of this resolution, the Tahsildar Gondia submitted a proposal to the Sub Divisional Officer. The said proposal was scrutinised by the District Health Officer, Zilla Parishad, Gondia; Senior Geologist of Ground Water Survey and Development Agency, Gondia, Executive Engineer Public Works Division, Gondia and the Executive Engineer, M.S.E.B. Gondia. The Collector had called upon the Sub Divisional Officer to put up the proposal immediately in view of the urgency involved in the matter and the rehabilitation was to be completed prior to the rainy season. This proposal of acquiring the above mentioned land was also approved by the District Collector, Gondia and the Sub Divisional Officer obtained the report in respect of red zones and blue zones from the Executive Engineer, G.I.D. Gondia. The Collector vide his letter dated 28.3.2007 submitted all these reports to the Divisional Commissioner. The Divisional Commissioner 9` approved the proposal submitted by the Collector including invoking of the urgency clause and dispensing with the inquiry under Section 5-A of the Act. The proposal submitted by the Collector was itself under Section 17 of the Act and after approval by the Divisional Commissioner, the notification under Section 4 of the Act was published in the local newspaper on 11.5.2007 and the notice dated 25.6.2007 was served on the petitioner. The affidavit further states that all the villagers of Badegaon village had agreed upon the land to be acquired from the above mentioned gat numbers as the land was found to be suitable and it is located on a higher level (hillock like). The draft award was prepared by the Land Acquisition Officer on 29.10.2007 and the same was approved by the Collector on 3.12.2007, after it received the comments from the Town Planner, Bhandara on 16.11.2007. The final award has been passed and published on 4.12.2007. The State Government has released the entire amount of Rs. 9,12,000/- for acquisition of the above mentioned land. 12. It has been further submitted in the affidavit that so far as the land holding of the petitioner is concerned, by acquiring his land covered by the impugned notification, he was not going to be rendered a landless person as he has 44 R land located in Gat No. 510/6 and 42 R land in gat no. 43/2 of village Banathar. The land 10` under the acquisition from gat no. 72 is from the ownership of the petitioner admeasures 1.40 HR.. So far as the dependency of the petitioner on the sole source of agricultural income is concerned, it has been pointed out that the said contention of the petitioner is false. The documents brought on record indicate that the petitioner has another business of LIC Agency and his total gross commission in the year 2006-07 has been to the tune of Rs. 98,058/- and he has paid an amount of Rs. 10,000/- as tax thereby leaving the net income at Rs. 88,056/-. 13. So far as the alternative land as suggested by the petitioner is concerned, it has been pointed out that the land in village Gagantola is recorded as a grazing and zudpi jangle land and it could not be used for any other purpose than the forest. In addition, prior permission of the Central Government under the Forest Conservation Act, 1980 was required to be obtained. All these would cause unwarranted delay. So far as the land suggested in gat nos. 520, 528 and 519 of village Banathara is concerned, it has been pointed out that these lands are near the bank of the river and it's stream whereas the lands in other gat numbers of the said village and as suggested by the petitioner are surrounded by Gaotalao (Tank) and canal of Bagh Itiyadoh Project. 14. We have verified this from the sketch 11` submitted before us and we agree with the submissions made on behalf of the respondent nos. 1 to 5 that the alternative land suggested by the petitioner has not been rightly considered for acquisition for the re-settlement of flood affected persons from village Badegaon. Even location wise, the land under acquisition is better suited for the re-settlement and more importantly all the families under re-settlement have agreed upon the said land and this is an important aspect which plays a vital role in completing the re-settlement project within a shortest time possible. In the re-joinder filed, the petitioner has mentioned about the acquisition of land for the Primary Health Care Center, Kochewahi and being set up at Rajegaon. He has further pointed out that the said land is a forest land and still it has been acquired. In the additional affidavit filed by the respondent no.4, it has been pointed out that the said acquisition is as per the exemption granted by the Central Government under the Forest Conservation Act, 1980 as per the conditions stipulated in the order passed by the Supreme Court of India on 30.10.2002 in I.A.No. 566 filed in W.P.No. (civil) 202/95. The Ministry of Environment and Forest has granted exemption vide its letter dated 5.5.2008 for the said land for Primary Health Centre and in any case the distance between Badegaon and Kochewahi is 4 Kms. 15. Now coming to the requirements of satisfaction 12` and application of mind for invoking the urgency clause, we have gone through the record as placed before us by the learned Additional Government Pleader. We have also considered the observations made by the Apex Court in the case of Mukesh Hans (supra) and particularly the findings reproduced in para 5 (d) hereinabove. We have noted that the mere existence of urgency by itself is not sufficient to direct the dispensation of Section 5-A inquiry and it requires an opinion to be formed by the Government concerned that along with the existence of such an urgency there is also a need for dispensing with such an inquiry. 16. By his letter dated 29.4.2006, the Sub Divisional Officer brought to the notice of the Collector that the entire village Badegaon was in the flood affected area and it was required to be rehabilitated to some other safe location. The file produced before us by the learned Additional Government Pleader shows that on 6.10.2006 the Sub Divisional Officer approached the Executive Engineer Irrigation Department, Gondia calling for a report regarding the blue and red zones of the lands in village Banathar. The petitioner and his elder brother submitted a representation to the Sub Divisional Officer on 26.5.2006 and stated that they hold land in gat nos. 590, 43/1, 432 and 720. Even if the entire land in gat no. 720 admeasuring 1 hactare and 40 R was sought to be 13` acquired, the remaining land left with the two brothers came to 2 H and 24 R as the land located in gat no. 590 admeasures 1 H and 40 R. The Executive Engineer, Irrigation Department vide his letter dated 28.11.2006 informed the Sub Divisional Officer that the land in gat nos. 61, 789, 788 and 720 was fit for the rehabilitation of the flood affected persons from village Badegaon and it was located in such a way that it was safe on blue zones as well red zones. The District Health Officer also issued his certificate dated 21.2.2007. The Geological Department also issued a certificate on 17.5.2006 stating that the land in gat nos. 790, 62, 61, 789, 788 and 720 of village Banathar was fit for re-settlement. By his letter dated 21.2.2007, the Collector reminded the Sub Divisional Officer to take immediate steps for the re- settlement work as it was to be completed by April 2007 as per the policy decision of the State Government. Consequently, on 27.2.2007 the Sub Divisional Officer submitted his report to the Collector along with no objection certificates received from the above mentioned three departments. The joint measurement of the land under acquisition was held on 13.3.2007. The Collector on 28.3.2007 submitted his report to the Divisional Commissioner at Nagpur and stated that the re-settlement of village Badegaon, Taluka Gondia was required to be made at village Banathar and the re-settlement was to be completed before the commencement of the rainy season 14` in June/ July 2007. It was, under these circumstances, that the Collector in the said report suggested invoking of urgency clause under Section 17(1) while issuing the notification under Section 4(1) of the Act. The Divisional Commissioner approved the said proposal on 3.4.2007 recording his satisfaction to invoke the urgency clause under Section 17(1) read with section 17(4) of the Act. The Divisional Commissioner observed as under: 17. It is, thus clear that the Collector as well as the Divisional Commissioner have applied their mind on the issue of urgency with which the land was sought to be acquired so as to complete the rehabilitation project before the monsoon season of June/ July 2007 would commence and they were satisfied that the urgency clause was required to be invoked. The record clearly 15` demonstrates that there was application of mind by the Collector as well as the Divisional Commissioner for acquiring the land by invoking the urgency clause and also to dispense with the inquiry required to be carried out under Section 5A of the said Act. It cannot be said that the urgency clause has been invoked mechanically or without application of mind or without there being in fact the necessity warranting dispensation with Section 5A inquiry. We are, therefore, satisfied that the law laid down by the Supreme Court in Mukesh Hans's case (supra) has been followed in the instant case. 18. We have also noted that the instant petition came to be filed on 13.12.2007 i.e. after the final award was published on 4.12.2007 and office objections in the were removed on 11.1.2008. The order of status quo was passed by this court on 15.1.2008 and consequently the re-settlement work came to be standstill. Despite the Government's invoking the urgency clause under Section 17(1) of the Act, the re-settlement work of the flood affected village Badegaon remains suspended till this date on account of the interlocutory order passed by this court on 15.1.2008. The petitioner is not going to be rendered landless and he still continues to hold more than two acres of agricultural land and he is not solely dependent on the agricultural income. The authorities concerned have considered the location of the subject land and the 16` land is not in the blue zone i.e. flood affected area. The distance between Badegaon and village Banathar is shorter than the other villages like Kochewahi and Jagantola. The Senior Geologist of Ground Water Survey and Development Agency was also consulted along with the Executive Engineer, Public Works Division as well as the District Health Officer and there was unanimity of opinion that the land under acquisition was found to be more suitable for the re-settlement of the flood affected families of village Badegaon. 19. We therefore, do not find any merit in the challenge to the acquisition proceedings and more particularly the invocation of urgency under Section 17(1) read with section 17(4) of the Act and, therefore, this petition must fail at the threshold. The same is hereby rejected and the ad interim order dated 15.1.2008 hereby stands vacated. The respondent nos. 1 to 5 are directed to take all the necessary steps to ensure that the re- settlement project in the land sought to be acquired is commenced at the earliest possible and completed expeditiously. JUDGE JUDGE patle 17`