THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.21422 OF 2010 DATED: 24.08.2011 Between: B. Ramulamma and others. … Petitioners And The District Collector, Kurnool And others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.21422 OF 2010 ORDER : By notification dated 24.07.2010 issued under Section 4 (1) of the Land Acquisition Act, 1894 (for short, ‘the Act’), an extent of Ac.38-22 cents of land situated in Orvakallu Village and Mandal, Kurnool District was sought to be acquired for establishment of 760/400 KV Electrical Sub-station. While invoking the urgency clause under Section 17(4) of the Act, the enquiry under Section 5-A was dispensed with. Aggrieved by the said notification, the petitioners herein who claim to be the owners and possessors of a part of the land sought to be acquired filed this writ petition contending inter alia that the impugned acquisition of the land belonging to the small and marginal farmers, in spite of the fact that Ac.86-30 cents of Government land is available, is arbitrary and illegal. It is pleaded that if only an enquiry under Section 5-A of the Act was held, the petitioners would have submitted their objections to the impugned acquisition and that the action of the respondents in dispensing with the enquiry under Section 5-A is unwarranted and unjustified. In the counter-affidavit filed on behalf of the respondents 1 & 2, it is stated that the Government of India, Ministry of Power while granting approval for transmission system associated with Krishnapattanam Ultra Mega Power Project to M/s. Power Grid Corporation of India Limited, directed that the construction of the project should be commenced within three (3) years. Pursuant thereto, M/s. Power Grid Corporation of India Limited made a request to acquire the land invoking the urgency clause since the Corporation had to complete the preliminary works like survey of the land, site levelling and etc., for finalizing the layout of the sub-station. As the proposed project is in public interest and the same will be catering the power requirements of State of A.P. as well as adjacent States of Karnataka and Maharashtra, urgency clause under Section 17(4) of the Act was invoked dispensing with Section 5-A enquiry. Subsequently, the declaration under Section 6 of the Act was published on 28.07.2010 and notices under Sections 9 (1) & 10 were also issued by the respondent No.2 for award enquiry. In response to the same, though the petitioners appeared before the 2nd respondent, they did not file any objections. With regard to the contention of the petitioners that alternative Government land is available, it is explained that the Government land situated in Sy.No.511 was inspected by the authorities of M/s. Power Grid Corporation of India Limited (for short, ‘the Corporation’) and it was found that the space available was not sufficient to meet the requirements of the Corporation. Moreover the land in Sy.No.511 is surrounded by National Highway on Northern side, a pond on the Western side and an irrigation nala connecting the pond on the Southern side. It was also found that the land in Sy.No.511 being rocky in nature it was not suitable for establishing the proposed electrical sub-station. The Power Grid Corporation of India Limited (for short, ‘the Corporation’), which got itself impleaded as respondent No.4, filed a counter-affidavit reiterating that the Government land available was found to be not suitable. It is further explained in their counter-affidavit as under: “It is submitted that the land in Sy.No.511 is a Government land and the same was inspected by the authorities of M/s. Power Grid Corporation of India Limited, Kurnool. As per their requirement the size of the land required for their 765 KV (765000 volts) / 400 KV (400000 volts) Sub-Station is 800 m x 400 m. The space in the above mentioned Sy.No.511 do not meet the requirement. The land in Sy.No.511 is surrounded by National Highway on Northern side, on West side a pond (Cheruvu gatta) and on South side there is an irrigation Nala connected to the pond, hence adjacent land also cannot be acquired to meet the required size i.e., (800 m x 400m) M/s. Power Grid Corporation Limited has expressed that the land in Sy.No.511 is rocky in nature and technically not suitable for their application due to reasons mentioned below: The Sub- station consists of 765 KV and 400 KV equipments such as Current Transformers, capacitive voltage Transformers, surge arrestors, Bus post insulators, Isolators and Circuit Breakers, Mounting structures and the body of all the equipments shall be earthed (connected to ground) to protect equipments as well as maintenance personnel. In case of faults (External flash over an Insulation failure of equipments) high fault current in the range of 20,000 to 30,000 amperes flow in to the ground. These huge currents can flow into the ground if the resistivity of the soil is as low as possible. In case of rocky land, the earth resistivity shall be very high compared to normal soil. Hence rocky areas are not suitable for High Voltage Sub-stations. Moreover the towers and Gantries require huge foundation at a depth more than 3 meters which is very difficult in rocky area. The right of way (Line corridor) required for the Incoming & Outgoing transmission lines is also not available, if the substation is located in Sy.No.511. At present 6 Nos. 400 KV Transmission lines and one 765 KV lines are to be terminated in the Sub station. 3 NOs. KV transmission lines shall be terminated in the near future. Hence the Government land in Sy.No.511 is not suitable for establishing the Electricity 765/400 KV station.” It is also pleaded by the Corporation that it had deposited Rs.8,30,12,800/- with the Revenue Divisional Officer, Kurnool towards 80% of the cost of the land acquired at the rate of Rs.10,00,000/- per acre and 30% solatium. The petitioners filed an additional affidavit dated 10.03.2011 stating that apart from the Government land situated in Sy.No.511 another extent of Ac.63-30 cents of land owned by the Wakf Board is available in Sy.No.430 of Orvakallu village and that the A.P. State Wakf Board by letter dated 9.8.2010 gave their consent for acquisition of Ac.33-77 cents for constructing the sub-station. It is pleaded by the petitioners that the balance land of 30 acres belonging to the Wakf Board is still available and that the respondents could have acquired the same instead of acquiring the land of the petitioners. In response to the said additional affidavit, the 2nd respondent filed an additional counter-affidavit stating that some of the enjoyers of wakf land filed W.P.Nos.730 of 2011 and 608 of 2011 challenging the acquisition of the wakf land and the said writ petitions were disposed of with a direction that in case the petitioners therein were to be evicted, the respondents should follow the due procedure as envisaged under law. The said petitioners again filed W.P.Nos.10625, 10641 and 10648 of 2011 challenging the acquisition proceedings and the same are still pending. It is explained that Ac.63-30 cents of land situated in Sy.No.430 is a service inam land granted for the service of the mosque situated in Orvakallu village under Title Deed No.594 and as per the adangals the said land stands in the name of mosque as pattadar. It is also stated that after completing the award enquiry, an award was passed on 12.2.2011 for Ac.25-32 cents of land leaving Ac.12-09 cents belonging to the petitioners herein. The possession of the said land was also taken on 11.03.2011 and the same was delivered to the Corporation. Since the awardees received the compensation amount under protest, the 2nd respondent referred the matter to the Civil Court under Section 18 of the Land Acquisition Act on 12.05.2011. I have heard Sri K. Somakonda Reddy, the learned counsel for the petitioners; the learned Government Pleader for Land Acquisition appearing for respondents 1 to 3; and Sri Vedula Venkataramana, the learned Senior Counsel appearing for the Respondent No.4 Corporation. Sri K. Somakonda Reddy, the learned counsel for the petitioners, while submitting that absolutely no case could be made out by the respondents to show the existence of urgency for invoking the power conferred under Section 17 (4) of the Act, vehemently contended that the impugned action of the respondents in dispensing with the enquiry under Section 5-A of the Act thereby depriving the petitioners of their valuable right to raise objections is arbitrary and illegal. In support of his submission, the learned counsel relied upon the decision in UNION OF INDIA v. MUKESH HANS[1]. There can be no dispute about the well-settled law 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. Krishan Lal Arneja {(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 is sought to be acquired for the purpose of establishment of electrical sub-station and it is not in dispute that it 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. The material placed before this Court shows that the prior approval of the Government of India, Ministry of Power, was accorded on 7.8.2008 for transmission scheme under Transmission System associated with Krishnapattanam Ultra Mega Power Project under Section 68 (1) of the Electricity Act, 2003. The said approval was subject to the condition that the implementing agency i.e., the 4th respondent Corporation would commence construction of the project within three years. It is not disputed before this Court that the proposed project is of National importance and the same will cater the power requirements of the State of A.P. as well as adjacent States of Maharashtra, Tamil Nadu and Karnataka. Pursuant to the prior approval granted by the Government of India, the requisition was given by the Corporation for acquiring the land in question and on 07.01.2009 the Revenue Divisional Officer, Kurnool called upon the Corporation to deposit the acquisition cost. Accordingly the Corporation deposited 80% of the cost of the land as well as 30% solatium. Thereafter, the Collector & District Magistrate, Kurnool, by letter dated 4.2.2010 submitted the proposal for acquisition of the land in question by invoking the urgency clause under Section 17 (4) of the Act and the same was accepted by the Government of A.P. vide G.O.Rt.No.99, Energy (PR-IV) Department, dated 15.7.2010. In pursuance thereof, the Notification dated 24.07.2010 under Section 4(1) of the Act was published in the Gazette, on 27.7.2010 followed by the declaration under Section 6 of the Act, dated 28.7.2010. Thereafter the award enquiry was held in the month of August, 2010 and the award was passed on 12.2.2011 following due process of law. The possession of the land acquired to an extent of Ac.25-32 cents leaving Ac.12-09 cents of land belonging to the petitioners was also taken and delivered to the Corporation on 11.03.2011. As could be seen the notification under Section 4(1) of the Act was published after two years from the date of approval by the Government of India for the Transmission System. It is explained by the respondents that the pre-notification delay was only on account of the time consumed for the preliminary works which included survey of the land and finalization of layout. It is clear from the counter affidavit filed on behalf of the Corporation that the selection of the land itself involved various technical aspects and it was also necessary for them to take care of availability of power and water before commencing the project. Having regard to the nature of the project proposed to be constructed and the time consuming process involved for assessing the technical suitability of the land, the respondents cannot be found fault with for the pre-notification delay. It is also relevant to note that after issuance of Section 4(1) notification there was no delay in completion of the proceedings and the award came to be passed within six months. In the facts and circumstances of the case it cannot be held that the urgency clause under Section 17 (4) of the Act was invoked without forming an opinion as to the need to dispense with the enquiry under Section 5-A of the Act. Since it is a time bound programme and the Corporation was required to commence the construction of project within three years, this Court is of the view that the respondents were justified in forming the opinion that it was necessary to eliminate the enquiry under Section 5-A of the Act. It is also not the case of the petitioners that the action of the State Government was mala fide. Hence, there is no reason to hold that the impugned action was arbitrary. Yet another important aspect to be taken note of is that the petitioners herein are concerned with only Ac.12-90 cents of land out of Ac.38-22 cents sought to be acquired under the impugned notification dated 24.7.2010. As noticed above, the award was passed on 12.2.2011 following due process of law. In view of the interim order dated 31.08.2010 passed by this Court directing to maintain status quo obtaining as on that date as to the possession of the land in question, though the possession of the petitioners has not been disturbed, the possession of the rest of the land to an extent of Ac.25- 32 cents was taken on 11.03.2011 and the same was handed over to the Corporation. Hence it would be against public interest to interdict the acquisition proceedings at this stage. Even with regard to the alternative land suggested by the petitioners it is stated in the counter-affidavits filed on behalf of the respondents that the said land was not suitable for construction of sub- station. Having regard to the facts and circumstances noticed above, I am unable to hold that the respondents were not justified in dispensing with the enquiry under Section 5-A of the Act. Accordingly, the Writ Petition is dismissed. However, there shall be a direction to the respondents 1 to 3 to pass a supplementary award so far as the lands of the petitioners are concerned, after giving them an opportunity to file their claims. No costs. ______________ G. ROHINI, J. Dt. 24.08.2011 gbs [1] (2004) 8 SCC 14