IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.12.2009 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.7882 of 2001 Valliammal ... Petitioner Vs. 1.The Secretary to Government, Public Works Department, Irrigation, Fort St. George, Chennai-9. 2.The Revenue Divisional Officer, Dindigul. 3.The Special Tahsildar, Land Acquisition, Nayodai Tank Scheme, Dindigul. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the records pertaining to the impugned order of the first respondent passed in 4(1) Notification issued in G.O.Ms.No.222, Public Works, Irrigation, dated 04.05.2000 published in Tamilnadu Government Gazette dated 31.05.2000 in part 2, Sec.2 and Sec.6 Declaration issued in G.O.Ms.No.449, Public Works Irrigation/S2 dated 05.09.2000 and published in Tamilnadu Government gazette dated 27.09.2000 in part 2 Sec.2 (Supplement) cost. For petitioner : Mr.V.Kathiravan For Respondents : Mr.P.Subramanian, AGP, O R D E R The petitioner is owner of the lands in Survey Nos.110/1 and 110/3 measuring to an extent of 3.06 and 0.14 acres respectively. Aggrieved by the Notification issued under Section 4(1), in G.O.Ms.No.222 Public Works (S2) Department dated 04.05.2000 and as published in Government Gazette dated 31.05.2000 and Section 6 declaration issued in G.O.Ms.No.441 Public Irrigation Works (S2) dated 05.09.2000 and as published in Government Gazette dated 27.09.2000, the petitioner has filed the present Writ petition to quash the same. 2. According to her, when the revenue officials surveyed her lands, she came to know that the respondents have proposed to construct a water tank and therefore, the abovesaid lands were sought to be acquired. Objecting to the same, the petitioner gave a detailed notice to the 3rd respondent through her Advocate on 12.03.2001, wherein, she has submitted that, no notice was given to her regarding the acquisition proceedings. Though, the third respondent has acknowledged the notice, there was no reply. In these circumstances, the petitioner has come forward to challenge the impugned proceedings for the relief, as stated supra. 3. Assailing the impugned proceedings Learned counsel appearing for the Writ petitioner, submitted that the scheme for construction of a water tank was proposed in the year 1997 and after 3 years, the present Notifications have been issued and therefore, there is absolutely, no necessity to invoke the provision under Section 17 of the Land Acquisition Act 1984. He therefore, submitted that the Government have failed to consider the said aspect and mechanically invoked the urgency provision. 4. He further submitted that while invoking the urgency provision under Section 17 of the Act, a minimum requirement of 15 days notice is required to be given under the Act. But no notice was served on the petitioner and therefore, there is a violation of principles of natural justice. In support of his contention, he relied on a decision in Mohan Singh and others Vs. International Airport Authority of India and others reported in (1997) 9 SCC 132. 5. Pointing out the time duration between the date of issuance of 4(1) Notification, 04.05.2000 and the date of Section 6 declaration 05.09.2000, he submitted that there was a gap of 4 months between the abovesaid Notification and declaration therefore, there was no urgency in invoking Section 17 of the Act. It is also his further contention that during the period, the respondents should have given atleast 15 days notice to the petitioner so as to enable her to submit her objections to the acquisition proceedings. Learned counsel for the petitioner further submitted that the petitioner has no other lands except the one which is sought to be acquired. 6. The Sub-Collector, Dindigul district, the second respondent has filed a detailed counter affidavit. Based on the averments made in the counter affidavit, Mr.P.Subramanian, Learned Additional Government Pleader, submitted that on the requisition from Public Works Department, the Government have approved the scheme of construction of a water tank in Sirangadu Village for the benefit of Public. An extent of 15.12.0 hectares of land comprised in Survey No.78/2B etc. in Sirangadu Village ,Dindigul Taluk, Dindigul district, was required for formation of a water tank. 7. Learned counsel for the respondents submitted that the notice issued by the Writ petitioner to the land acquisition officer was taken cognizance but the selection and inclusion of the petitioner's land was already done taking into account the requirement. Referring to Section 17 of the Act, he submitted that inasmuch as the Government have approved the land acquisition for the abovesaid scheme invoking urgency clause, Section 5A has been dispensed with and therefore, there is no question of conducting any enquiry as contemplated under the Act. For the abovesaid reasons, he prayed for dismissal of the Writ petition. 8. Heard the learned counsel for the parties and perused the materials available on record. 9. Material on record shows that the Government by G.O.Ms.No.222 Public Works (S2) Department dated 04.05.2000 have issued 4(1) Notification under the urgency provisions of Section 17(2) of the land acquisition Act, for acquiring 15.12.0 hectares of dry land in Survey No.78/2B etc. for the purpose of construction of a water tank across Nayodai near Kannivadi in Sirangadu village, in Dindigul Taluk, and it reads as follows: 1. The Draft 4(1) Notification under urgency provisions of Section 17(2) of the Land Acquisition Act, 1984, (Central Act of 1894), submitted by the Special Commission and Commissioner of Land Administration in the reference 2 read above for acquiring 15.12.0 hectares of dry land in Survey No.78/2 etc for the scheme for the formation of tank across Nayodai near Kannivadi in Sirangadu Village in Dindigul Taluk in Dindigul district is approved and will be published in the next issue of Tamilnadu Government Gazette and in two Tamil Daily newspapers circulating in the locality. 2. The Works Manager, Government Central Press, Chennai is requested to publish the 4(1) Notification in the next issue of the Tamilnadu Government Gazette dated 31.05.2000 he is requested to furnish portion to the gazette in which Notification will be published to the Government in this department. 3. Four copies of the Notification in Tamil are forwarded to the Director of information and Public Relation, Chennai 9 and he is requested to arrange for their publication in two Tamil daily Newspapers circulating in the locality as ordered in paragraph I above at once. 4. The District Revenue Officer, Dindigul district is requested to instruct the Land Acquisition Officer to cause the publication of the substance of the Notification at convenient places in the locality immediately. 5. The records received with the letter second read above are returned to the Special Commissioner and Commissioner of Land Administration. Subsequently, a publication was effected in Tamilnadu Government Gazette dated 31.05.2000, as follows: No. II (2) |PWI|593|2000.---Whereas it appears to the Government of Tamilnadu that the land specified below and situated in No.28, Sirangadu Village, Dindigul taluk, Dindigul District are needed for a public purpose of formation of a New Tank across Nayodai notice to that effect is hereby given to all to whom it may concern, in accordance with the provisions of sub-Section (1) of Section 4 of Land Acquisition Act 1894 (Central Act 1 of 1894); And whereas it has become necessary to acquire the immediate possession of lands specified below the Governor of Tamilnadu hereby directs that the lands be acquired under the provisions of sub- Section (2) of Section 17 of the said Act. 10. Four months later, the Government issued a Notification under Section 6 including the petitioner's land, and other lands required for the purpose of construction of a water tank across Nayodai near Kannivadi in Sirangadu Village in Dindigul Taluk, Dindigul district. The Notification gazetted on 31.05.2000, shows that it has become necessary to take immediate possession of the lands and therefore, urgency provision of sub-Section 2 of Section 17 was invoked, whereby, the provisions of Section 5(A) of the Act, was not made applicable to the case of the petitioner and others for the purpose as stated supra. 11. Section 17 of the Land Acquisition Act, reads as follows: Section 17: Powers in cases of urgency.--- (1) In case of urgency, whenever the [appropriate Government] so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-Section (1) [take possession of any land needed for public purpose]. Such land shall thereupon [vest absolutely in the [Government], free from all encumbrances]. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, [or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may, immediately after the publication of the notice mentioned in sub-Section (1) and with the previous sanction of the [appropriate Government], enter upon and take possession of such land, which shall there upon [vest absolutely in the [Government] free from all encumbrances] : Provided that the Collector shall not take possession of any building or part of a building under this sub-Section without giving to the occupier thereof atleast forty-eight hours' notice of his intention to do so, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3) In every case under either of the preceding sub-Sections, the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in Section 24 and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. [(3-A) Before taking possession of any land under sub-Section (1) or sub-Section (2), the Collector shall, without prejudice to the provisions of sub-Section (3),--- (a) tender payment of eighty per cent of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, sub-Section (2), and where the Collector is so prevented, the provisions of Section 31, sub-Section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that Section. (3-B) The amount paid or deposited under sub-Section (3-A), shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section 11, the excess may, unless refunded within three months from the date of Collector's award, be recovered as an arrear of land revenue. [(4) In the case of any land to which, in the opinion of the [appropriate Government], the provisions of sub-Section(1) or sub-Section(2) are applicable, the [appropriate Government] may direct that the provisions of Section 5-A 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).] 12. In First Land Acquisition Collector & others Vs. Nirodhi Prakashu Gangoli and another reported in 2002 (4) SCC 160 , the Supreme Court, held that the question of invoking urgency provision under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of the satisfaction. 13. In Union of India and others Vs. Praween Gupta and others reported in 1997 (9) SCC 78 the Supreme Court held that it is an administrative decision and is a matter of subjective satisfaction of the appropriate Government, on the basis of the materials available on record. Therefore, there was no need to pass any reasoned order to reach the conclusion that there is urgency, so as to dispense with the enquiry under Section 5-A of the Act, in exercise of power under Section 17(4). In a given case whether there is an urgency or not it is left to the discretion and decision of the concerned authorities. 14. In A.P.Sareen Vs. State of Uttar Pradesh, reported in 1997 (9) SCC 359, though there was a delay of 9 months between 4(1) Notification and Section 6 declaration because of error on the part of concerned Government Officials the Supreme Court held that it urgency does not cease. The Court further held that urgency continues as long as the scheme is not initiated, action taken and the process completed. The abovesaid decision is squarely applicable to the facts of this case, and though the scheme was approved in the year 1997, it could not be initiated immediately. 15. In Jai Narain Vs. Union of India reported in 1996 (1) SCC 9, the Supreme Court held that invoking of urgency is a matter which is entirely based on the subjective satisfaction of the government and that the Court cannot interfere with the satisfaction of the Government, unless reasons are wholly irrelevant. 16. The decision relied on by the learned counsel for the Writ petitioner deals with invocation of Section 17(1) of the Land Acquisition Act, for the purpose of Indira Gandhi International Airport. Section 5(A) enquiry was dispensed with and there was a further direction to take possession. 4(1) Notification was published on 23.12.1986 and the same was published in newspapers on 31.01.1987 the substance of such Notification was published at convenient places in the locality. Section 6 declaration was published on 24.12.1986. Substance of the notification was given in the locality. While challenging the abovesaid Notification, it was contended by the petitioner therein, that 4(1) Notification and Section 6 declaration were published on 28.01.1987 and 29.01.1987 respectively, and adequate time was not given to the land owners to submit their objections. Rejecting the contentions, the Supreme Court held that it is suffice, even if there is one day gap between 4(1) notification and Section 6 declaration and that there is no irregularity. The judgment relied on by the learned counsel for the petitioner is not applicable to the facts of this case. 17. Perusal of the draft award of the land acquisition officer, Dindigul, produced before this Court shows that on behalf of the petitioner Valliammal, wife of Muthu Servai, is the owner of the land in patta No.930, her son Mr.Senthilkumar appeared for the award enquiry and stated that the land is free from encumbrance and his mother had gone to Trippur. He has also stated that his mother would agree to the amount of compensation for the land under acquisition. After setting out the details, of this Writ petition, the land acquisition officer has further recorded that, the petitioner's son Mr.Senthilkumar has also stated that his mother would withdraw the present Writ petition, before receiving the compensation amount and her consent letter would be produced. It is further recorded in the draft award that in these circumstances, was decided that the land owner Smt.Valliammal and her son Mr.Senthilkumar would be given an opportunity to make a representation at the time of disbursement of the compensation due for the extent of 1.29.0 hectares of irrigated dry land . The copy of the draft award discloses that a sum of rupees 1,91,266.16 has been determined as compensation to be paid to the petitioner. On the basis of the instructions furnished by the Executive Engineer, Public Works Department, Water Resources Organisation, Nanganjiyaru Basin Division, Palani, learned Additional Government Pleader submitted that the project of construction of the water tank across Nayodai near Kannivadi, Sirangadu village, has been completed and that on 06.04.2008 the Hon'ble Minister for Public Works Department has also inaugurated the same. 18. He also submitted that the petitioner's lands are situated in catchment area and therefore, it is required for the department. In view of the contentions raised by the respondents that there was an existence of urgency for issuing a notification under Section 17 of the Land Acquisition Act and in the absence of any plea and proof of malafide or oblique motive, on the part of the government in acquiring the lands, mere delay of 4 months between Section 4(1) notification and Section 6 declaration would not ipso-facto vitiate the acquisition proceedings. 19. The object and purpose of invoking the urgency clause, is to construct a water tank, meant for development of the villagers of sirangadu village and other places, in and around that area. It is also to be noted that during the pendency of this Writ petition, the son of the petitioner who had appeared before the land acquisition officer has consented to receive the award and withdraw the writ petition. The said contention has not been refuted by the petitioner. In such a view of the matter, this Court is of the considered view that there is no manifest illegality in the impugned acquisition proceedings. 20. Hence the Writ petition is dismissed. No costs. 16.12.2009 nb Index : Yes/No Internet : Yes/No S.MANIKUMAR, J. nb To 1.The Secretary to Government, Public Works Department, Irrigation, Fort St. George, Chennai-9. 2.The Revenue Divisional Officer, Dindigul. 3.The Special Tahsildar, Land Acquisition, Nayodai Tank Scheme, Dindigul. Writ Petition No.7882 of 2001 16.12.2009