HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 6966 of 2001 ORDER: The relief sought for in this Writ Petition is to declare the action of the respondents in initiating proceedings under the Land Acquisition Act, 1894 (for short ‘the Act’) in respect of the petitioner’s premises bearing H.No.1-7-138 admeasuring 63 sq. yards situated at Kaman Area, Bhongir Town, Nalgonda District as being arbitrary and illegal and, consequently, to direct the respondents not to acquire her land. The petitioner is the owner, and is in possession, of 63 sq. yards of land in Kaman Area, Bhongir Town, Nalgonda District. She made an application to the first respondent for grant of permission to put up construction on the rear side of her site. W.P.No.4824 of 1977 was filed by some other persons contending that a road was required to be laid over the plot of the petitioner in accordance with the development plan and, therefore, she should not be granted permission to construct a house on the said plot. This Writ Petition is said to have been dismissed by this Court on 19.06.1978. Thereafter a neighbour is said to have submitted a representation to the second respondent against grant of permission in the petitioner’s favour. Pursuant thereto, the second respondent is said to have rejected the petitioner’s application for permission to put up construction. Aggrieved thereby, the petitioner filed W.P.No.1038 of 1978. The said Writ Petition was allowed, and the order of the government was quashed. This Court further directed the fourth respondent to consider the petitioner’s application in accordance with law. The fourth respondent, thereafter, granted permission to the petitioner pursuant to which she claims to have started construction. While the construction was in progress, the first respondent is said to have issued a telegraphic order staying the operation of the permission granted by the fourth respondent. Aggrieved thereby, the petitioner filed W.P.No.4126 of 1978, and this Court suspended the order of the first respondent. Thereafter, the first respondent is said to have passed the final orders setting aside the permission granted by the fourth respondent resulting in the petitioner filing W.P.No.1415 of 1979. The said Writ Petition was allowed, and the order of the Government was set aside. This Court is said to have observed that the first respondent should take a decision on acquisition of the petitioner’s land within six weeks. The petitioner contended that failure on the part of the respondents to acquire the land enabled her to re-commence construction and complete the same. Thereafter, the petitioner proposed to construct a shop in the front portion of the said premises, and submitted an application to the first respondent on 29.04.1999. The first respondent, by order dated 15.05.1999, rejected the said application stating that, as per the development plan, the proposed site fell under the 30 feet width road, and the Government had issued orders for formation of the road as per the layout. The petitioner would allege that the impugned proceedings were issued at the behest of a political party to which the Chairperson, Bhongir Municipality, belonged. The petitioner filed W.P.No.13721 of 1999, which was allowed and the fourth respondent was directed to permit the petitioner to raise construction as per the building plan submitted by her as the respondents were not able to complete acquisition proceedings, including payment of compensation within a period of six months. Since no permission was granted even thereafter, the petitioner filed C.C.No.1337 of 2000 wherein the fourth respondent is said to have been sentenced to simple imprisonment for thirty days, and imposed a fine of Rs.2,000/- against which a Contempt Appeal is said to be pending wherein the order of sentence is said to have been suspended. It is the petitioner’s case that, subsequently, Section 4(1) notification was issued on 24.02.2001 in respect of the petitioner’s property, and issuance of such notification is mala fide. The petitioner would also question invocation of urgency clause on the ground that, as the dispute has been pending for more than two decades, there was no urgency for invoking Section 17(4) of the Act. In the counter affidavit filed on behalf of the respondents, it is stated that the fourth respondent initiated land acquisition proceedings in accordance with the orders of this Court; for acquisition of the petitioner’s land, and the adjacent plot, the government had resolved to pay Rs.50,000/- towards the first instalment; and the balance amount, in instalments, as per the award of the land acquisition officer; a cheque of Rs.50,000/- was issued to the petitioner on 02.09.2000 which was, however, returned; and the said sum was later made available to the land acquisition officer. It is stated that proposals had been initiated to provide a link road to approach the main road, and there was no other intention but to lay a road in accordance with the development plan. Sri S.Vivek, Learned Counsel appearing on behalf of the petitioner, would submit that by invoking urgency clause, under Section 17(4) of the Act, the respondents had dispensed with the Section 5-A enquiry; the enquiry, under Section 5-A of the Act, was a valuable right conferred on a person whose land is sought to be acquired, and should not be dispensed with as a matter of course or without application of mind; the very fact that the dispute has been pending in one forum, or the other, for more than two decades was itself proof that invocation of the urgency clause, and dispensing with Section 5-A enquiry was not justified; the action of the respondents in seeking to acquire the petitioner’s land is mala fide; and this method has been adopted to some how deprive the petitioner of her valuable property. Learned Counsel would rely on Union of India v. Mukesh Hans[1], Hindustan Petroleum Corporation Limited v. Darius Shapur Chenai[2] and Essco Fabs Private Limited v. State of Haryana[3]. On the other hand, Ms Shanti Neelam, learned Standing Counsel for Municipalities, would contend that the land on which the petitioner’s plot is situated has been earmarked for a road in the development plan; refusal of permission earlier was solely due to the fact that the land was required for widening of the road; acquisition of the land, for the purpose of laying the road, was a public purpose; and, since a road was required to be laid urgently, the respondents were justified in invoking Section 17(4) of the Act, and in dispensing with the enquiry under Section 5-A of the Act. This Court, by order dated 13.04.2001 in WPMP.No.8849 of 2001, granted interim stay of dispossession and, as a result, the petitioner continues to remain in possession of the building in question for the past nearly a decade. On the question of malice, it is required to be noted that such allegations are required to be examined only when the person against whom malice is alleged is made a party eo- nominee (State of Bihar v.P.P.Sharma4). While allegations are made against a politician, and the Ex-Chairperson of the Bhongir Municipality, they are not arrayed as respondents by name, and in their personal capacity. It would be wholly inappropriate for this Court, therefore, to examine the plea of malice. In Munshi Singh v. Union of India5, the Supreme Court observed that Section 5-A embodies a very just and wholesome principle that a person whose property is being, or is intended to be, acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to the person should not be made, and it is only in cases of urgency that the provisions of Section 5-A can be dispensed with. I n Mukesh Hans1 the Supreme Court held that the right given to a owner/person interested, under Section 5-A of the Act, to object to the acquisition proceedings was not an empty formality, and was a substantive right which could only be taken away for good and valid reasons prescribed under Section 17(4) of the Act; an opportunity of being heard, under Section 5-A of the Act, is necessary as it would enable the person, whose land is acquired, to show that the purpose, for which acquisition is sought to be made, is not a public purpose; and the suitability of the land for the said purpose. In Darius Shapur Chenai2, the Supreme Court held that Section 5-A of the Act conferred a valuable right in favour of a person whose lands were sought to be acquired and, having regard to the provisions contained in Article 300-A of the Constitution of India, it is akin to a fundamental right; initial action for acquisition of land was taken as early as in 1982 but the proceedings had lapsed; when Essco made an application in 1991, praying for change of user of land, it was rejected on the ground that the land was likely to be required for a public purpose; nothing, however, was done for about a decade; it is only in 2001 that a notification under Section 4 of the Act was again issued, and the urgency clause was applied; the ratio laid down in Mukesh Hans1 squarely applied to the facts of the case; no urgency clause could have been invoked by the respondents; inquiry and hearing of objections provided by Section 5-A of the Act could not have been dispensed with; the action of invocation of the urgency clause under sub-section (4) of Section 17, dispensing with the inquiry under Section 5-A, and issuance of the final notification, under sub-section (1) of Section 6, are required to be quashed; and they are, accordingly, quashed. The counter affidavit filed before this Court does not reveal that the competent authority had applied his mind to the background of the case, and the fact that the dispute had spread over a period of more than two decades. Further, despite an interim order being granted as early as in the year 2000, the respondents had not taken any steps to get the interim order vacated. I see no justification, therefore, in dispensing with the Section 5-A enquiry and, thereby, denying the petitioner her valuable right of putting forth her objections to the acquisition. The action of the respondents, in invoking the urgency clause under Section 17(4) and dispensing with the Section 5-A enquiry, is set aside. The respondents shall put the petitioner on notice, give her an opportunity of being heard as required under Section 5-A of the Act and, thereafter, if need be, take further action for acquisition of the land of the petitioner. The Writ Petition is, accordingly, allowed. However, in the circumstances, without costs. RAMESH RANGANATHAN,J Date:02.12.2010 usd [1] 2004(8) SCC 14 [2] 2005(7) SCC 627 [3] 2009(2) SCC 377 4 AIR 1991 SC 1260 5 1973(2) SCC 337 1 2004(8) SCC 14