IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.3420 of 2008 Between: The Vizagapatam Diocesan Corporation Pvt. Ltd., rep. by its Director, Fr. Joseph Arch Bishop's House, Visakhapatnam. ..... PETITIONER AND 1 The District Collector, Visakhapatham. 2 The Sepcial Tahsildar (LA), VUDA, Visakhapatham. 3 The Visakhapatham Urban Development Authority, rep. by its Vice-Chairman, Gandhi Place, Siripuram Junction, Visakhapatham. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court may be pleased to issue an appropriate writ order or direction more particularly writ in the nature of Mandamus declaring the notification issued u/s Sec.4(1) of the Land Acquisition Act-1 of 1894 as amended by Land Acquisition amendment XXX VIII of 1923 vide proceedings in Rc.No.42/2008 G. dt. 8.1.2008 and consequential section 6 declaration of the 1st respondent in R.Dis No.42/08 G1. dt. 24.01.2008 including for acquisition of the lands of the petitioner admeasuring Ac.0.63, Ac.0.01 and Ac.0.09 in S.Nos.83/ID, 83/2B and 83/3B respectively in Madhuravada village, Visakhapatnam rural Mandal, Visakhapatnam Dist. and dispensing with Sec.5-A enquiry by invoking urgency clause under Sec.17(4) of the Land Acquisition Act as illegal, arbitrary and violative of Article 14,21 and 300-A of the Constitution of India and quash the same and pass such other order or orders. Counsel for the Petitioner: MR.M.S.R.SUBRAHMANYAM Counsel for the Respondents: GP FOR LAND ACQUISITION The Court made the following : THE HON'BLE MR JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.3420 of 2008 ORDER: Petitioner seeks to assail the notification issued by the respondents under Section 4(1) of the Land Acquisition Act, 1894 (for short “the Act”), proposing to acquire the land of the petitioner admeasuring Ac.0.63, Ac.0.01 and Ac.0.09 cents, in Sy.Nos.83/1D, 83/2B and 83/3B, respectively, situated at Madhuravada village of Visakhapatnam Rural Mandal in Visakhapatnam District, and dispensing with enquiry under Section 5-A of the Act and also consequential draft declaration issued under Section 6 of the Act. It is the case of the petitioner that it purchased an extent of Acs.11.32 cents of land covered by different survey numbers, including the land under acquisition, under various sale deeds for valuable consideration, and since then it has been in possession and enjoyment of the same. Subsequent to the purchase, the petitioner constructed a compound wall of 4½ feet height enclosing the entire land, intending to construct educational institution on the said land. Petitioner alleges that on 02.01.2008, some persons claiming to be the workmen of the Visakhapatnam Urban Development Authority (VUDA), third respondent herein, demolished a part of the above said compound wall raised by the petitioner. Questioning the said highhanded action of VUDA, the petitioner filed W.P.No.129 of 2008 before this Court on 04.01.2008, wherein this Court directed the respondents to follow due process of law. Be that as it may. The respondents issued a notification under Section 4(1) of the Act, published on 08.01.2008, proposing to acquire the land of the petitioner along with others. The respondents invoked urgency clause under Section 17(4) of the Act and thereby dispensed with enquiry under Section 5-A of the Act. Later, draft declaration under Section 6 of the Act was also issued. Petitioner questions the said proceedings initiated under the Act. The third respondent-VUDA filed a counter-affidavit stating that as the land of the petitioner is required for formation of 80 feet road connecting RTC colony to the existing road, it necessitated the authorities to invoke urgency clause and dispense with enquiry under Section 5 of the Act. It is further stated that draft declaration under Section 6 of the Act was published on 24.01.2008 and thereafter notice under Section 9(3) of the Act was issued on 18.02.2008 to the petitioner and in fact, petitioner did not participate in the award enquiry and the award is likely to be passed. Therefore, it seeks to dismiss the writ petition, as there is no deviation in the procedure. Heard the learned counsel for the petitioner, learned Government Pleader for Land Acquisition appearing for respondents 1 and 2 and the learned Standing Counsel for VUDA. The factual matrix of the case is not in dispute. From a perusal of the notification issued under Section 4(1) of the act, it is clear that the Special Tahsildar, Land Acquisition, VUDA, Visakhapatnam, invoking urgency clause under Section 17(4) of the Act, dispensed with enquiry under Section 5-A of the Act. No doubt, Section 17(4) of the Act enables the Land Acquisition authorities to dispense with enquiry under Section 5-A of the Act, but at the same time it shall not be resorted to in normal circumstances. As the provisions of Section 5-A of the Act provide a valuable opportunity to the landowners to put forth their objections against the proposed acquisition, such an opportunity cannot be denied to them unless there is real urgency. The purpose mentioned in the notification impugned i.e, for formation of road, does not indicate that there is such an urgency to invoke urgency clause. Therefore, the action of the respondent-authorities in dispensing with enquiry under Section 5-A of the Act cannot be sustained. In Union of India v. Krishan Lal Arneja [1] , the Supreme Court also observed that in the absence of any material to show subjective satisfaction, urgency clause under Section 17(4) of the Act cannot be invoked. The relevant portion of the said judgment reads 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 S.17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under S.5-A of the Act. The authority may have subjective satisfaction of the need for invoking urgency clause under S.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 S.5-A of the Act could be completed.” In the light of the said judgment and also in view of the fact that the purpose for which the land in question is sought to be acquired does not indicate that there is any urgency, this Court has no hesitation to come to the conclusion that the action of the respondents in dispensing with enquiry under Section 5-A of the Act is unjustified. For the foregoing reasons, the writ petition is allowed in part and all the proceedings pursuant to the notification dated 08.01.2008 issued under Section 4(1) of the Act are hereby are quashed. The respondents are hereby directed to hold an enquiry under Section 5-A of the Act before seeking to proceed further with the proposed acquisition of the land of the petitioner admeasuring Ac.0.63, Ac.0.01 and Ac.0.09 cents, in Sy.Nos.83/1D, 83/2B and 83/3B, respectively, situated at Madhuravada village of Visakhapatnam Rural Mandal in Visakhapatnam District, within a period of four weeks from today. It is made clear that without waiting for any notice from the respondent- authorities, the petitioner may file objections against the proposed acquisition of its land. There shall be no order as to costs. _________ 10.03.2008 sh [1] AIR 2004 sc 3582