THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No. 8884 of 2010 Date: 06.09.2011 Between: 1. B. Ramakrishna and 31 others. … Petitioners And 1. The Govt. of A.P., rep. by its Chief Secretary, Secretariat Buildings, Hyderabad., and 5 others. Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No. 8884 of 2010 O R D E R : The petitioners herein claim to be the marginal farmers, whose lands are sought to be acquired vide notification dated 10.04.2010 published under Section 4(1) of the Land Acquisition Act, 1894 (for short ‘the Act’) for a public purpose namely the rehabilitation of Panchalingala Village, Kurnool District which was sub-merged due to floods of Tungabhadra river during 01.10.2009 to 03.10.2009. Having invoked the urgency clause under Section 17(4) of the Act, the enquiry under Section 5-A of the Act was dispensed with and consequently the declaration under Section 6 of the Act was also published on 15.04.2010. This writ petition is filed assailing the said notification primarily on the ground that the action of the respondents in dispensing with the enquiry under Section 5-A of the Act is arbitrary and illegal since there is no such grave urgency so as to deprive the petitioners of their valuable right to raise objections. While pleading that other alternative Government/wakf lands are available which are more suitable for the house sites, it is also contended that the acquisition of the lands of the petitioners who are all marginal farmers is unwarranted and unjustified. The petitioners relied upon the report of the Superintending Engineer, Irrigation Circle, Kurnool dated 04.03.2010 wherein it was recorded that the lands sought to be acquired under the impugned notification were not in safer zone as there was possibility of flood water oozing through quarry pits surrounding the said lands, to substantiate their further contention that the impugned notification was issued without application of mind to the relevant factors. It is also pleaded that 90% of the residents of Panchalingala village were not interested to shift to a different place since the inundation of Panchalingala village had taken place for the first time in the history due to the unprecedented floods and as such there was no need for the acquisition of land under the impugned notification. In the counter affidavit filed on behalf of the respondents 2 to 4, it is stated that 33 villages on the bank of Tungabhadra river were fully sub-merged and washed away including Panchalingala village and therefore, the Government had taken a decision to relocate all the villages which were badly affected by the floods. So far as the availability of the Government poramboke land situated in Sy.No.403 is concerned, it is stated that the said land was also totally sub-merged in the flash floods on 02.10.2009 and therefore, it was not suitable for acquisition. Similarly, the endowment land and wakf land suggested by the writ petitioners were also not available for immediate acquisition in view of the orders passed by this Court. While denying the plea of the petitioners that most of the villagers were not interested to leave the village, it is explained that as many as 895 applications out of total 1450 families were received for rehabilitation. The plea that the floods may not occur again has also been denied stating that the decision to shift the village to a safer zone had been taken on the basis of the technical opinion of Irrigation Department and other connected departments. Thus, it is contended in the counter affidavit that no other suitable lands were available except the lands proposed for acquisition under the impugned notification. With regard to the report of the Superintending Engineer, dated 04.03.2010 relied upon by the petitioners, it is explained that on personal visit to the site in question, the Superintending Engineer had subsequently clarified by letter dated 27.03.2010 that the proposed lands were safe and they were suitable for rehabilitating Panchalingala village. The petitioners in their reply affidavit disputed the stand taken by the respondents in their counter affidavit and reiterated the plea taken in the writ petition that the lands sought to be acquired were not safe to relocate the village and that more than 150 acres of Government land and 50 acres of wakf land apart from other Bhudan lands situated above the flood level, were available. I have heard the learned counsel for the petitioners as well as the learned Government Pleader for Land Acquisition appearing for the respondents and perused the material available on record. The law is well-settled that the satisfaction of the Government that there exists a real urgency is sine qua non for invoking the extraordinary power conferred under Section 17 (4) of the Act. It is also a well-settled principle of law that the satisfaction of the Government as to urgency must be based on an objective criteria and upon challenge being made to the use of power under Section 17(4), it is for the Government to establish that the opinion for dispensing with the enquiry under Section 5-A has been formed after due application of mind on the material placed before it [vide Union of India v. Krishna Lal Ameja {(2004) 8 SCC 453}; Babu Ram v. State of Haryana {(2009) 10 SCC 115}; and Radhy Shyam v. State of U.P.{(2011) 5 SCC 553} ]. In the instant case the land in question was sought to be acquired for the purpose of rehabilitation of Panchalingala village since the said village was completely sub-merged due to flash floods during October, 2009. There can be no dispute that such rehabilitation of the villagers who lost their houses in the floods is a public purpose, however, the question that requires consideration is whether the respondents were justified in dispensing with the enquiry under Section 5-A of the Act. Admittedly, the flash floods occurred on 01.10.2009 resulting in inundation of Panchalingala village from 1.10.2009 to 3.10.2009. However the impugned notification came to be issued after six months on 10.04.2010 for acquisition of the lands in question for rehabilitating the villages. According to the petitioners the said floods to Tungabhadra river in such magnitude is the first of its kind and there is no possibility of recurrence of such floods in future and therefore, majority of the villagers are not interested in the proposed relocation of the village. Admittedly the impugned acquisition has been proposed for relocation of the entire village in a safer place to avoid recurrence of inundation in future. The fact that the respondents have taken more than six months for initiating the acquisition proceedings itself shows that there is no such real and substantive urgency. As rightly submitted by the learned counsel for the petitioners, it is not such an exceptional case where the delay of even a few weeks or months likely to be taken in conducting enquiry under Section 5-A will frustrate the public purpose for which the land is sought to be acquired. Having regard to the well-settled principle of law that the urgency clause under Section 17 (4) can be invoked only when the purpose of acquisition cannot brook any delay, I am of the opinion that the respondents in the facts and circumstances of the present case were not justified in depriving the petitioners of their valuable right to raise their objections to the impugned acquisition. Accordingly, the declaration under Section 6 of the Act, dated 15.04.2010 is hereby set aside and the writ petition is disposed of with a direction to the respondents 2 to 4 to conduct an enquiry under Section 5-A of the Act in accordance with law and then proceed further following due process of law. No costs. ______________ G. ROHINI, J Date:06.09.2011 KLP