IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 WP(C).No. 11499 of 2009(F) -------------------------- PETITIONER(S): ------------------- M.S.PRAKASH, VADAKKE PUTHEN VEEDU, ANAYARA P.O., ARA 261, THIRUVANANTHAPURAM-29. BY ADV. SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 3. THE SPECIAL TAHSILDAR - LA (GENERAL), THIRUVANANTHAPURAM. 4. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R4 SRI.P.K.MANOJKUMAR FOR R4 GOVERNMENT PLEADER SMT.K.R.DEEPA FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2010, ALONG WITH WPC NO. 15362 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NOs. 11499 & 15362 OF 2009 ========================= Dated this the 19th day of January, 2010 J U D G M E N T Issue raised being identical, these writ petitions were heard together and are disposed of by this common judgment. 2. For convenience, I shall be referring to the facts pleaded in WP(C) No.11499/09. 3. The petitioner owns 40 cents of land in Sy.No.1440 of Kadakampally Village of Thiruvananthapuram Taluk. Referring to letter dated 19/3/2008 from the Project Director of KSUDP, 1st respondent issued Ext.R1(a) order dated 24/4/2008, permitting acquisition of the lands mentioned therein for the purpose of establishing a waste treatment plant. In so far as it is relevant for these cases, the property in Sy.No.1440 of Kadakampally Village is also included in Ext.R1(a) order. Subsequently, Ext.P1 Government order was issued on 30/10/2008 permitting acquisition of the properties mentioned therein invoking the urgency clause contained in Section 17 of the Land Acquisition Act (hereinafter referred to as 'the Act' for short). In this order, as against the property in Sy.No.1440 mentioned in Ext.R1(a) WPC Nos.11499 & 15362/09 :2 : referred to above, the property included was those situated in Sy.No.1410. Subsequently, notification under Section 4(1) of the Act was published on 5/3/2009 and 7/3/2009, copies of which are Exts.P2 and P3. In these notifications, property included is that situated in Sy.No.1440 and this notification also provided that the enquiry under Section 5A is dispensed with invoking powers of the Government under Section 17(4) of the Act. It was in these circumstances, this writ petition was filed challenging Exts.P2 and P3 notifications in so far as it includes property in Survey No.1440 and contending that there was no justification to invoke the urgency clause and dispensing with the enquiry under Section 5A. It is also contended that property originally proposed for acquisition was the one in Sy.No.1410 whereas in Exts.P2 and P3 notifications under Section 4(1) of the Act, the property notified for acquisition is the property in Sy.No.1440. 4. The 3rd respondent entered appearance and filed its counter affidavit producing order dated 22/1/2009 issued by the 1st respondent correcting the survey number as 1440. It was thereupon that the writ petition was amended incorporating a challenge against the order dated 22/1/2009 by producing the WPC Nos.11499 & 15362/09 :3 : same as Ext.P4. 5. I heard the learned senior counsel appearing for the Corporation, who made reference to the statement filed and argued in support of the acquisition proceedings. 6. Counter affidavit and an additional counter affidavit have been filed by the 3rd respondent. It is stated that the Government sanctioned land acquisition under the fast track method vide Government order dated 27/5/2008 and that in the said order, survey number 1410 happened to be mentioned on account of a bonafide clerical mistake. It is stated that, later, at the request of the Project Director, KSUDP, survey number was corrected as 1440 by Ext.P4 order. It is also stated that the sites was identified by the officials of the Kerala Water Authority, which is the implementing agency of Sewerage Project of Thiruvananthapuram Corporation under JNNURM and the identified land in Survey No.1440 is the most suitable and ideal location with minimum cost of acquisition. It is also stated that the sketch which was produced at the initial stage of the acquisition proceedings itself will show that land in Sy.No.1440 was the intended property and not the property situated in Sy.No.1410. Third respondent has WPC Nos.11499 & 15362/09 :4 : also produced Ext.R1(b), R1(b1) and R1(c) in support of these contentions. It is further stated that the property in Sy.No.1410 is far away from the proposed project site and cannot be used for the project without acquiring huge and vast extent of properties lying in between the property in survey number 1410 and the remaining properties to be acquired, which is practically impossible and that if the property in Sy.No.1410 is acquired, large number of owners of the properties will have to be dispossessed and that the property cannot be used for the purpose at all. 7. In so far as the invocation of the powers under Section 17 and the decision to dispense with enquiry under Section 5A of the Act are concerned, it is stated that the Government of India had launched JNNURM for planned development of key cities in the country during December, 2007 for a period of 7 years and that out of the 63 cities selected, Thiruvananthapuram and Cochin are the two cities from Kerala State. It is stated that one of the approved projects under JNNURM for Thiruvananthapuram Corporation is the improvement of the Sewerage system of Corporation and adjoining Panchayats for Rs.21,541 lakhs of which 80% is Central Government share, 10% is State Government share WPC Nos.11499 & 15362/09 :5 : and 10% is Urban Local Body share. It is stated that for the implementation of this scheme, 11 pump houses are required at various points of the city to collect and pump the sewerage to a modern sewerage treatment plant under construction at Valiyathura. According to the respondents, the site mentioned in the petition is for one of the 11 pump houses proposed at Edathara, which is intended to collect the entire sewerage from the areas of Anamugham, Cheruvaykkal, Akkulam, Ulloor and Pongummoodu of Trivandrum Corporation. It is stated that if the work could not be started and completed within the time frame, the financial help from Central Government “may loose” and that if that be so, the project itself will be lost. 8. Counsel for the petitioner contended that correction of the survey number is illegal. He also impugned the decision of the respondents in dispensing with the enquiry under Section 5A of the Act relying on the Apex Court judgments in Union of India v. Mukesh Hans {2004(3) KLT 462(SC)}, Union of India v. Krishnan Lal Arneja {(2004) 8 SCC 453} and Essco Fabs (P) Ltd. v. State of Haryana {(2009) 2 SCC 377}. On the other hand, learned Government Pleader reiterated the contentions in WPC Nos.11499 & 15362/09 :6 : the counter affidavits, made available the files and relied on the Apex Court judgment in First Land Acquisition Collector v. Nirodhi Prakash Gangoli (AIR 2002 SC 1314). 9. The first issue to be resolved is the one regarding correction of survey number from 1410 to 1440. The note submitted by the KSUDP on 19/3/2008 and the Government Order dated 24/4/2008, show that land in Kadakampally Village, which was proposed to be acquired, is in Sy.No.1440. It was subsequently that the Government Order was issued on 27/5/2008, in which the Survey number was 1410. This according to the respondents, was due to a bonafide clerical mistake. The facts and the pleadings in the writ petition do not show any deliberate action taken by any of the authorities to change the survey number of the property from 1440 to 1410. Further, respondents have also explained the lie, location and the suitability of the property in Survey No.1440, which also reinforces their plea that what was identified was the land in Sy.No.1440. In the light of the explanation offered by the respondents, the contention that Sy.No.1410 came to be mentioned in the Government Order dated 27/5/2008 by way of a bonafide clerical mistake deserves to be accepted. It was WPC Nos.11499 & 15362/09 :7 : therefore that the Government issued revised Government Orders on 30/10/2008 and 22/1/2009 changing the survey number into Sy.No.1440 as against 1410 wrongly mentioned in the Government Order dated 27/5/2008. All these developments took place before Section 4(1) notification was issued and therefore, when Section 4 (1) notification was issued, Sy.No.1440 was rightly incorporated. Consequently, I do not find any merit in the objection raised by the petitioner against mentioning Sy.No.1440 in Exts.P2 and P3 notifications issued under Section 4(1) of the Land Acquisition Act. 10. Now the remaining question is whether any valid circumstances have been made out by the respondents to dispense with the enquiry under Section 5A. 11. Section 17(1) of the Act provides that in cases of urgency, whenever the appropriate Government or the District Collector so directs, though no award has been passed, on the expiry of 15 days from the publication of the notice mentioned in Section 9(1), possession of any land needed for a public purpose can be taken by the District Collector. Section 17(2) also provides for taking of possession of land under acquisition in the unforeseen circumstances mentioned therein. However Section 17(4) provides WPC Nos.11499 & 15362/09 :8 : as under:- (4) In the case of any land to which, in the opinion of the appropriate Government or the Board of Revenue the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government or the Board of Revenue, as the case may be, may direct that the provisions of Section 5A 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-section (1). This sub section therefore provides that in circumstances appropriate for proceeding under Sections 17(1) and (2), the appropriate Government or the Board of Revenue, as the case may be, may direct that the provisions of Section 5A of the Act 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 Section 4(1) notification. Dealing with Section 17(4) of the Act, in Union of India v. Mukesh Hans (2004(3) KLT 462), it has been held by the Apex Court that even in a case where Sections 17(1) and (2) are invoked, that by itself does not amount to dispensing with enquiry under Section 5A of the Act. The law laid down by the Apex Court in this behalf is contained in Paras 32 and 33, which reads as under:- 32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the WPC Nos.11499 & 15362/09 :9 : Act shows mere existence of urgency or unforeseen emergency though is a condition precedent for invoking S.17(4) that by itself is not sufficient to direct the dispensation of 5A 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 5A inquiry which indicates that the Legislature intended that the appropriate Government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of an urgency under S.17(1) or unforeseen emergency under S.17(2) would not by themselves be sufficient for dispensing with 5A inquiry. If that was not the intention of the Legislature then the latter part of sub-s.(4) of S.17 would not have been necessary and the Legislature in S.17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A 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 5A 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 5A inquiry does not mean that in and every case when there is an urgency contemplated under S.17(1) and unforeseen emergency contemplated under S.17(2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under S.17(1) or the unforeseen emergency under S.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 S.5A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under S.17(1) and (2) of the Act. 33. An argument was sought to be advanced on behalf of the appellants that once the appropriate Government comes to the conclusion that there is an urgency or unforeseen emergency under S.17(1) and (2), the dispensation of enquiry under S.5A becomes automatic and WPC Nos.11499 & 15362/09 :10 : the same can be done by a composite order meaning thereby that there is no need for the appropriate Government to separately apply its mind for any further emergency for dispensation with an inquiry under S.5A. We are unable to agree with the above argument because sub- s.(4) of S.17 itself indicates that the "government may direct that provisions of S.5A shall not apply" which makes it clear that not in every case where the appropriate Government has come to the conclusion that there is urgency under sub-s.(1) or unforeseen emergency under sub-s.(2) of S.17 the Government will ipso facto have to direct the dispensation of inquiry. For this we do find support from a judgment of this Court in the case of Nandeshwar Prasad & Anr. v. The State of U.P. & Ors. (1964 (3) SCR 425) wherein considering the language of S.17 of the Act which was then referable to waste or arable land and the U.P. Amendment to the said section held thus : "It will be seen that S.17(1) gives power to the Government to direct the Collector though no award has been made under S.11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under S.17(1), taking possession and vesting which are provided in S.16 after the award under S.11 are accelerated and can take place fifteen days after the publication of the notice under S.9. Then comes S.17(4) which provides that in case of any land to which the provisions of sub-s(1) are applicable, the Government may direct that the provisions of S.5A shall not apply and if it does so direct, a declaration may be made under S.6 in respect of the land at any time after the publication of the notification under S.4(1). It will be seen that it is not necessary even where the Government makes a direction under S.17(1) that it should also make a dirction under S.17 (4). If the Government makes a direction only under S.17 (1) the procedure under S.5A would still have to be followed before a notification under S.6 is issued, though after that procedure has been followed and a notification under S.6 is issued the Collector gets the power to take possession of the land after the notice under S.9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is WPC Nos.11499 & 15362/09 :11 : only when the Government also makes a declaration under S.17(4) that it becomes unnecessary to take action under S.5A and make a report thereunder. It may be that generally where an order is made under S.17(1), an order under S.17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under S.17(1) or S.17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand." This principle has been reiterated by the Apex Court again in the judgment in Union of India v. Krishnan Lal Arneja {(2004) 8 SCC 453}. Still later, in the judgment in Essco Fabs (P) Ltd. v. State of Haryana {(2009) 2 SCC 377}, after referring to all previous authorities, it has been held in paras 38 to 42 and 53 as follows:- 38. We find considerable force in the above argument of the learned counsel for the appellants. The scheme of the Act is clear which provides for issuance of preliminary notification under sub-section (1) of Section 4 of the Act empowering the appropriate Government to issue such notification for acquisition of land needed or likely to be needed for any public purpose. Since the property belongs to a private individual, unless there is a “public purpose” as defined in clause (f) of Section 3 of the Act, no acquisition of land can be made. 39. It is in exercise of power of eminent domain that a sovereign may acquire property which does not belong to him. In the circumstances, as a general rule, before exercise of power of eminent domain, law must provide an opportunity of hearing against the proposed acquisition. Even without a specific provision to that effect, general law requires raising of objections by and affording opportunity of hearing to the owner of the property. The Land Acquisition (Amendment) Act, 1923 (Act 38 of 1923), however, expressly made such provision by inserting WPC Nos.11499 & 15362/09 :12 : Section 5-A in the Act. 40. It is, therefore, clear that after issuance of preliminary notification under Section 4 and before final notification under Section 6 of the Act, the appropriate Government is enjoined to hear the persons interested in the property before he is deprived of his ownership rights. But then there may be cases of “urgency” or “unforeseen emergency” which may brook no delay for acquisition of such property in larger public interest. The legislature, therefore, thought it appropriate to deal with such cases of exceptional nature and in its wisdom enacted Section 17. 41. Whereas sub-section (1) of Section 17 deals with cases of “urgency”, sub-section (2) of the said section covers cases of “sudden change in the channel of any navigable river or other unforeseen emergency”. But even in such cases i.e. cases of “urgency” or “unforeseen emergency”, enquiry contemplated by Section 5-A cannot ipso facto be dispensed with which is clear from sub-section (4) of Section 17 of the Act. 42. Sub-section (4) of Section 17 is an enabling provision and it declares that if in the opinion of the appropriate Government, the provisions of sub-sections (1) or (2) are applicable, it may direct that the provisions of Section 5-A would not apply. It is, therefore, clear that the legislature has contemplated that there may be “urgencies” or “unforeseen emergencies” and in such cases, private properties may be acquired. But, it was also of the view that normally even in such cases i.e. cases of urgencies or unforeseen emergencies, the owner of property should not be deprived of his right to property and possession thereof without following proper procedure of law as contemplated by Section 5-A of the Act unless the urgency or emergency is of such a nature that the Government is convinced that holding of enquiry or hearing of objections may be detrimental to public interest. 53. Section 17, no doubt, deals with special situations and exceptional circumstances covering cases of “urgency” and “unforeseen emergency”. In case of “urgency” falling under sub-section (1) of Section 17 or of “unforeseen emergency” covered by sub-section (2) of Section 17, special powers may be exercised by appropriate Government but as held by a three-Judge Bench decision before more than four decades in Nandeshwar Prasad and reiterated by a three- Judge Bench decision in Mukesh Hans, even in such cases, inquiry and hearing of objections under Section 5-A cannot ipso facto be dispensed with unless a notification under WPC Nos.11499 & 15362/09 :13 : sub-section(4) of Section 17 of the Act is issued. The legislative scheme is amply clear which merely enables the appropriate Government to issue such notification under sub-section (4) of Section 17 of the Act dispensing with inquiry under Section 5-A if the Government intends to exercise the said power. The use of the expression “may” in sub-section (4) of Section 17 leaves no room of doubt that it is a discretionary power of the Government to direct that the provisions of Section 5-A would not apply to such cases covered by sub-sections (1) or (2) of Section 17 of the Act. 12. Therefore, the law is settled that even in a case where Sections 17(1) and 17(2) are invoked, that by itself does not amount to dispensing with enquiry under Section 5A of the Act. The circumstances and the manner in which the enquiry under Section 5A can be validly dispensed with have been pointed out by the Apex Court in para 16 of the judgment in Union of India v. Krishnan Lal Arneja {(2004) 8 SCC 453}, which reads as under:- 16. 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 WPC Nos.11499 & 15362/09 :14 : 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 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. 13. In the judgment in First Land Acquisition Collector v. Nirodhi Prakash Gangoli (AIR 2002 SC 1314), the Apex Court has indicated the extent to which a decision taken under Section 17(4) of the Act can be made subject to judicial scrutiny and the relevant portion