JUDGMENT
1. The petitioners in W.P.No.4242/97 seek annulment of the notification issued under Section 4(1) of the Land Acquisition Act, 1964 (hereinafter referred to as ‘the Act’) in reference No.B 1/8024/96, dated 27-11-1996. Similar
annulment is sought in W.P.No. 4604/97 but by different petitioners and in respect of different survey numbers. Since the nature of controversies in both the Writ Petitions are the same, both of them are being disposed of by this common judgment
2. Section, 4(1) notification is challenged and sought to be challenged on several grounds, such as:
(1) The lands under acquisition are agricultural lands more particularly coconut gardens;
(2) The paper publication of the Notification under Section 6 of the Act was made beyond 40 days period;
(3) The petitioners were small farmers;
(4) Possession of the land under acquisition was not taken within 90 days period as required by A.P. Amendment Act, 1983;
(5) When a declaration under Section 6 is quashed, enquiry under Section 5A becomes mandatory in view of the provisions of Section 17(5) of the Act;
(6) The acquisition proceedings were initiated at the behest of the local politicians;
(7) The location of the proposed plant was in a residential locality and the running of the plaint in such locality would be a health hazard for the residents of the said locality;
(8) The lands under acquisition get submerged during the rainy season which would make it unsuitable for establishing the plant;
(9) Since enquiry under Section 5A was dispensed with, the petitioners did not have the opportunity of representing their grievances against the proposed acquisition. By not giving such opportunity, the authorities violated the principles of natural justice;
3. It is further contended by the petitioners in W.P.No.4604/97 that a proposal
had been mooted to connect the existing drainage channel to Kadium Canal by means of channel to be dug and it was marked in green in the plan. The canal carried the industrial waste of Coastal Paper Mill, G. V.K Power Plant, etc and it was proposed to discharge the same into the sea at Kakinada. A sum of Rs.20 lacs was sanctioned for this purpose. The work was entrusted to a Contractor who later abandoned the same for no valid reasons. Even for the present Water Treatment Plant there was no need for acquisition of further land belonging to private parties as it could be located in the Government Poramboke land between the Railway line and the road before it joins the Godavari River.
4. The Land Acquisition Officer resisted the objections taken by the petitioners on the ground that after obtaining the administrative approval for Pollution Abatement Scheme for river Godavari at Rajahmundry town under National River Conservation Programme by the Government of India, the Executive Engineer (PH), Rajahmundry Municipal Corporation sent requisition proposal for acquisition of land measuring 100.96 Acres in R.S.No.14/1 of Hukumpeta village for construction of Sullage treatment works under National River Conservation Programme Scheme (for short ‘the Scheme’). After personal inspection of the Revenue Divisional Officer, Rajahmundry, proposals for acquisition of land measuring Ac. 100-96 cents of Hukumpeta village for the above purpose were sent and the draft Notification under Section 4(1) of the Act was approved by the Collector, East Godavari district, Kakinada in RefNo.Bl.8024/96 dated 27-11-1997 invoking urgency provisions of the Act. The substance of the draft Notification was also published in East Godavari District Gazette on 29-11 -1996 and in the daily news papers i.e., in the Eenadu on 9-1-1997 and in the Pledge on 10-1-1997; as also in the locality on the same day. The declaration under Section 6 of the Act was approved by the Collector, East Godavari district, Kakinada in the proceedings RefNo.Bl.8024/96 dated 25-12-1996 and
the substance of the draft Declaration was also caused to be published in East Godavari Gazette and in the daily news papers i.e., Pledge and Eluru Times on 23-1-1997 and in the locality on 15-1-1997. Further, according to respondents, since the draft Notification was approved and published invoking the urgency provisions under Section 17(4) of the Land Acquisition Act, the possession of the land had to be taken within 90 days from the date of publication of draft Notification. The public notices under Sections 9(1) and 10 of the Act were issued on 4-2-1997 and published on 10-3-1997 and notices under Sections 9(3) and 10 were issued on 4-2-1997 and served on the persons interested over the land under acquisition on 10-3-1997 proposing award enquiry on 26-3-1997, and the said enquiry was conducted on that day. On 4-4-1997, the Requisition Department also deposited funds to a tune of Rs.1,35,40,000/- with the Land Acquisition Officer towards publication charges and 80% compensation to facilitate the Land Acquisition Officer for tendering payment of compensation before taking possession as per the Act in view of the urgency.
5. However, it is contended in the counter affidavit that in W.P.No.4242/97, an interim order of the High Court dated 5-3-1997 was received directing status quo to be maintained for a period of two weeks which expired on 20-3-1997, for Ac.0.65 cents in S.No.24/3 and Ac.0-98 cents in S.No.14/8. In another W.P.No.4604/97, status quo for a period of two weeks was granted on 25-3-1997 which expired on 7-4-1997. In the said Writ Petition, the petitioners sought relief for the entire extent notified for acquisition. In the meantime, the Department sent a revised requisition proposal for acquisition of Ac.42-00 cents only and requested to de-notify the balance extent of Ac.58-96 cents and justification report was also submitted. The possession of the land had to be taken before 9-4-1997 as per the urgency clause i.e., within 90 days from the publication of the draft Notification. While emphasising the need of urgent acquisition, the respondents contended that since the acquisition was for
a public purpose for abatement of River Pollution which was undertaken by the Government of India, the possession of the land had to be taken immediately.
6. It cannot be disputed that the work of setting up a treatment plant is of an urgent nature so that the community at large may be saved from the disasterous effect of pollution of land and water as well as from the health hazard to which the inhabitants of the locality are exposed. Under sub-section (4) of Section 17 of the Act, a provision is indeed made to the effect that in 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 5A shall not apply, and if it does so directs, 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). The question, however, which arises for our consideration is whether the urgency in words is reflected in action. What progress had been made by the authorities after securing the administrative approval for Pollution Abatement Scheme for river water at Rajahmundry town under National River Conservation Programme Scheme is unfortunately not disclosed. Nothing is mentioned as to what further steps had been taken for expeditious implementation of the Scheme so as to derive satisfaction that the Government in all sincerity proceeded with the expeditious implementation of the Scheme for preventing and curbing pollution. The respondents should have at least furnished the date on which such approval was secured and the phase-wise requirement of funds and the lay-out of funds for completing the Project within a time bound programme. Merely stating that the purpose for which the acquisition was sought to be made was urgent, does not meet with the requirements of law. Sub-section (1) of Section 17 of the Act provides that 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 a public purpose. Under Section 9(1) of the Act, a public notice is required to be given by the Collector at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land and that claims to compensation for all interest in such land may be made to him.
7. Under sub-section (1) of Section 17 of the Act, on expiration of 15 days from the publication of the notice mentioned under Section 9 sub-section (1) of the Act, the Collector has to take possession of any land needed for the public purpose. In the instant case, 4(1) Notification was issued on 27-11-1996. Declaration under Section 6 of the Act was made on 23-1-1997 and thereafter notices under Sections 9(1) and 10 were issued on 4-2-97 and published on 10-3-1997.
8. The dates on which different notifications were issued as required by law do not give us an indication of any unduly long inaction on part of the respondents. The funds to the tune of 80% were also deposited on 4-4-1997 with a view to facilitating the Land Acquisition Officer to tender payment of compensation before taking possession in accordance with law and in view of the urgency provisions of the Act- Whatever delay was caused was due to the interim directions given by the High Court in Ihe present Writ Petitions. The Government or the respondents for that matter cannot be charged with any lethargy and the urgency of acquiring the land cannot be undermined in view of what is stated above.
9. In the case of Damera Seshagiri Rao v. Govt. of A.P., 1992(1) An.WR539, the Division Bench of this High Court held that acquisition of private lands contrary to applicable administrative instructions was null and void and the acquisition proceedings deserve to be quashed. This view was expressed in the background of two main points, firstly, that the direction given by the
learned single Judge in the writ petition had not been complied with by the authorities and even the expiry of a period of about 4-1/2 years Ihe concerned authorities did not initiate any action to acquire the remaining Ac.0-06 cents of land which was covered by a well and that the 2nd more crucial aspect of the matter was based on the Memo which had been issued by the Government directing that lands covered by coconut gardens could not be acquired unless it becomes inevitable to do so in the larger interest of the acquisition
10. Out of the aforesaid two requirements, the one which could be straight away applied to the facts of the present, case relates to coconut gardens because the petitioners before this Court have also come up with the contention that the lands under acquisilion were agricultural lands more particularly the fact that there were coconut gardens. The petitioners could have no grievance as far as time factor is concerned. However, wilh regard to the cause advanced by the petitioners that there were coconut gardens on the lands sought to be acquired, Ihe respondents have maintained a tacit silence. Damera Seshagiri Rao’s case (supra), includes an observation that the lands covered by coconut gardens should not be acquired unless it became inevitable to do so in the larger interest of the acquisition. The Division Bench considered the terms of the Memo in this regard which reads as follows :-
“It has been brought to the notice of the Government that hardship and irreparable loss is caused to the land owners of the coconut garden lands which are acquired for providing house sites to weaker sections.”
The Division Bench thereafter observed that the petitioner had raised the foremost objection available to him against the acquisition proceedings that the land in question was covered by a coconut garden which had been blatantly overlooked by Ihe authorities and, therefore, it was evident that the provisions of the memo had been honoured in breach for no reasdn as to why only the lands in
question alone could be suitable for providing house siles to the poor particularly when it had been alleged specifically by the petitioner that there were other suitable lands. The Division Bench thereafter referred to a decision of the full bench of this High Court in Yadaiah v. Govt. of A.P., 1983 (1) ALT 233 (FB) on the point regarding binding effect of the administrative instructions on the land acquisition authorities. The sum and substance of the discussion made by the Full Bench on this aspect is to the effect that any acquisition of private land found to be contrary to the applicable administrative instructions would be null and void and eventually the Division Bench quashed the acquisition proceedings.
11. In the case before us, the purpose for which the land is sought to be acquired is of-course a burning question of the day which needs immediate consideration and implementation in the interest of the community at large, more particularly, when the river gets polluted on account of untreated effluent being indiscriminately discharged into the river water. Sanctity as well as the urgency of the issue in our case cannot be questioned and its superiority over other issues needs to be properly evaluated and given a preferential treatment over all other burning issues.
12. The only question, therefore, which could engage our attention is whether any alternative poramboke land was available in the vicinity and whether the same was suitable for putting up the treatment plant. But. unfortunately, no material is placed before the Court which could enable the Court to come to a conclusion whether any alternative site in the vicinity of the land under acquisition was available or not. Before, however, arriving at any final conclusion on this aspect, we must take into consideration other authorities cited by the learned Counsel for the rival parties.
13. The learned Government Pleader for Land Acquisition pressed into service the decision of the Supreme Court in the case of Jai Narayana v. Union of India, in which the Supreme Court held that
the land sought to be acquired for setting up sewage treatment plant on war-footing under orders of Supreme Court to control pollution could not be treated as illegal merely on the basis of the fact that the expression “likely to be needed” in notification under Section was incorporated. The Supreme Court interpreted the expression “likely to be needed” as meaning “certainly” and “urgently”. In Paragraph 5 of the said judgment, the Supreme Court observed that the existence of urgency was a matter which was entirely based on the subjective satisfaction of the Government. The Courts would not interfere unless the reasons given were wholly irrelevant and there was no application of mind. When a notification under Section 4 of the Act uses the expression “is likely to be needed”, it may be necessary, in a given case, to examine the records or the attendant circumstances to satisfy that there was material before the Government justifying the order under Section 17, dispensing with the provisions of Section 5A of the Act. If the public purpose on the face of it showed that the land was needed urgently, that by itself was a relevant circumstance for justifying the action under Section 17(4) of the Act.
14. In Paragraph 10 of the above decision, the direction issued by the Supreme Court on 8-9-1995 have been reproduced which read as under :-
“So far as the requirement of land for setting up STP in Keshavpur is concerned, this Court issued directions to the Delhi Administration on December 14,1994 to initiate proceeding within two weeks thereafter and handover the possession to the Undertaking as early as possible. We are constrained to say that till date the possession of the whole of the land (106 hectares) has not been handed over to the Undertaking. As mentioned above, formal possession of 75 hectares has been handed over to the Undertaking. Ms. Suman Swamp is the Secretary Incharge of the Land and Building Department and also of the Public Works Department of the Delhi Administration.
We direct Ms. Suman Swarup to have the proceedings such as the assessment of the value of the structures on the spot etc. completely within four weeks from September 11,1995. Thereafter, she would make a formal request to the DDA to demolish thastructures and hand over the possession so that the DDA gets the land from the Delhi Administration on payment and thereafter hand over the same to the undertaking. Ms. Suman Swarup shall file an affidavit indicating the compliance of our order before October 16, 1995.”
15. The urgency of pulling up Sewage Treatment Plant is amply manifested in the rulings cited above and the views expressed by this Court also receive adequate support, from the same. In that view of the matter, therefore, even if nothing came on record to show whether any alternative land was available for the purpose in question, the notification of the urgency clause by the respondents cannot be undermined and should not be allowed to suffer any setback in view of the sanctity and supremacy of the purpose for which the land in question is sought to be acquired.
16. In Rambhai lakhabai Bhakt v. State of Gujarat, , the Supreme Court held that the right of hearing was mandatory under Section 5 A(2) and the Land Acquisition Officer was enjoined to give the opportunity of hearing to the owner or person known to be interested in the land. However, the urgency clause does not seem to have been invoked by the authorities in the case before the Supreme Court and, therefore, the observations made above by this Court as well as the ratio emerging from the decisions cited above do not receive any set back because of the decision of the Supreme Court in the case of Rambhai Lakhabai Bhakt (supra). The petitioners, therefore, fail to secure any substantiation of the submissions made by them in the Writ Petitions.
17. With the above situation in view of law and facts, I believe that no interference is required to be made with the acquisition
proceedings taken by the respondents in respect of the laid in question, the purpose of which is such that the urgency thereof cannot be thrown to winds merely because the question whether any alternative land in the vicinity of the land in question was available or not for the purpose of putting up the treatment plant is not clearly answered. Both the Writ Petitions are, therefore, dismissed. However, with no order as to costs.