JUDGMENT
R.S. Bhonsale, J.
1. The petitioners have challenged by this petition the notification issued by the Additional Commissioner, Aurangabad Division, Aurangabad, under section 17 as well as under section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”), and published in the Maharashtra Government Gazette on October 26, 1976. Earlier a notification was issued under section 4 of the Act, dated November 20,1975 and published in the Maharashtra Government Gazette on February 8, 1976, declaring that the land admeasuring 2 acres 27 gunthas from survey Nos. 370/1, 372 and 374 of village Dharur, Taluka Kaij, District Bhir, was needed or likely to be needed for public purpose, i.e. for construction of a high school. After the notification under section 4 was published in the Maharashtra Government Gazette, a public notice as per the provisions of section 4 was issued on February 3, 1976. Similarly, individual notices were also served on both the interested persons who are petitioners in this petition.
2. The individual notices were served on the petitioners and after the publication of the notices, both the petitioners by written applications had objected to the acquisition of the said land, though on different grounds. Petitioner No. 2 by application dated March 15, 1976, addressed to the Land Acquisition Officer had stated that earlier 8 acres of land was acquired from Survey No. 362 for the same public purpose, i.e. for the construction of a high school in the village Dharur. He further stated that in Survey No. 370 there was a graveyard of the Muslim community and acquisition of this land for the purpose of construction of the high school might hurt their religious feelings. At the end of this application he had stated that 8 acres of land from Survey No. 362 was acquired for the same purpose. In case that land was to be transferred to him, he was prepared to exchange land from Survey No. 370, so that the part of it could be utilised for the purpose of graveyard of Muslim community in future.
3. The application by petitioner No. 1 was slightly on different ground, in as much as he had stated in his application dated April 16,1976, that there was a Durgah of a very famous Muslim Saint by name Shoukatsha alias Malangsha and the Muslim community greatly revered him. The acquisition of this land where the Muslim graveyard was situated would not only hurt their religious feelings, but would also create a sense of frustration amongst the members of the Muslim community. Apart from petitioner No. 1 signing this application, nearly 55 members of the Muslim community have also signed this application.
4. In spite of these two letters, the Land Acquisition Officer did not think it fit to issue notices under section 5-A of the Act to the petitioners and hear their objections. In fact from the record it appears that at one stage the Land Acquisition Officer had drawn up a programme of these proceedings. This statement showing the details of the proceedings and the relevant information is at page 67 of the original record and proceedings, and in fact from this statement it appears that the Land Acquisition Officer had fixed April 16, 1976, as the date of enquiry under section 5-A of the Act i.e., two days after the petitioners had made their applications. However, that enquiry was never held.
5. However, from the record it further appears that the Special Land Acquisition Officer No. 1 had conducted a spot inspection of the land in question on April 16, 1976, itself. The enquiry report of the spot inspection mentions that he has heard applicant Budenshah s/o Fateshah Fakir. In this report the Special Land Acquisition Officer has observed that no graveyard falls in the land sought to be acquired and the graveyard falls outside the land proposed to be acquired and in his opinion, therefore, the question of hearing the sentiments of the Muslims did not arise. The Special Land Acquisition Officer in his report has further stated that if the land of Durgah was more pious to them than the school, how the lnamdar had unauthorisedly leased nearly O-60 area of land from Survey No. 362 to petitioner No. 2 Ashok Kumar s/o Manik Rao Rudrawar far for 99 years ? In his opinion, the income from the land acquired would be a handsome corpus and even after spending for the upkeep of Durgah, the Inamdar would get an assured income for himself.
6. It further appears that on October 26,1976, the Special Land Acquisition Officer had also held another spot inspection of the land in question and had observed in the inspection note : “The Collection and Executive Engineer, Z.P. desire to complete the school building prior to the end of March 1977, Therefore, as soon as section 6 notification is published, orders for handing over possession should be issued from this office.”
7. This is the first indication on the part of the authorities concerned thinking in terms of application of urgency clause in the matter and the only reason disclosed is that the building had to be completed prior to the end of March 1977. By the letter dated October 8,1976, addressed to the Addition Commissioner, Aurangabad Division, Aurangabad, the Collector of Bhir stated :
“Please refer to the L.No. LAQ/SR/48/75 dated 6-10-76 from the Spl. A.O.No. 1 Bhir through which he has submitted notification under section 6 in the above case. The construction of the High School Building is to be started in the current financial year itself and for that the acquiring body has already provided sufficient funds.
In view of the importance of the subject, you are requested to please apply an urgency clause in this case.
A fresh notification under section 6 along with the schedules are enclosed herewith, to facilitate further action.”
8. It would thus appear that though the two petitioners had objected and made written applications, the authorities concerned did not think it fit and or desirable to hold any enquiry whatsoever but instead nearly six months after entering into correspondence, the only reason disclosed on the record for applying urgency clause is that the construction of the building had to be completed in the relevant financial year and the funds had to be utilised before March 31, 1977, and , therefore, the Additional Commissioner was requested to apply the urgency clause in this case. This request was forwarded to the office of the Additional Commissioner ultimately after some correspondence. The said notification under section 17 and section 6 of the Act came to be published in the Maharashtra Government Gazette on October 26, 1976. It is this notification which is challenged by the petitioners in this petition.
9. After going through the record carefully, it is clear that notwithstanding the two applications by the two petitioners requesting the authorities not to acquire these lands and stating their objections thereto in writing, they were never heard, nor were they given any opportunity of personal hearing either by themselves or through their pleader. At some stage spot enquiries were made and the reports were submitted to the higher authorities. In view of what is stated above, it is surprising as to how in the notification dated October 26,1976. It is stated that “the Additional Commissioner, Aurangabad Division, is satisfied after considering the report of the Collector under sub-section (2) of section 5-A of the Land Acquisition Act ….. that the said lands are needs to be acquired……”
10. Sub section (2) of section 5-A of the Act enjoins the concerned officer that after publication of the notification under section 4 of the Act in respect of the objection made to him in witting , he shell give the objector an opportunity of being heard either in person or by pleader and shall after hearing such objections and after and making such further enquiry, if any, as he thinks necessary, make a report. It is, therefore, clear that after the Collector or the Land Acquisition Officer had received the objections in writing, it was mandatory on the Collector or the Land Acquisition Officer to give the petitioners an opportunity of being heard either in person or through pleader and it is only after hearing them that they ought to have made such report to which reference is erroneously made in the notification issued under section 17 and section 6. Though some spot inspections were conducted as indicated above, we are unable to find from the entire record that the petitioners were served with notices after receiving their written applications for hearing their objections to the said acquisition.
11. The provisions of section 5-A are mandatory and it is now well settled that the very core and essence of section 5-A is the personal hearing renders the acquisition invalid from its inception. Insufficiency of reasons and in this case complete absence of any reasons whatsoever do not justify resort to urgency clause and dispensing with the enquiry under section 5-A of the Act. Elimination of enquiry under section 5-A must be justified by some exceptional and genuine reasons. What those exceptional and genuine reasons are, will depend on the facts and circumstances of each case. Suffice it to say that after having persued the entire record very carefully, we cannot persuade ourselves to believe that there was any reason whatsoever and still less exceptional one which warrants recourse to application of urgency clause and dispensing with the mandatory enquiry as provided in section 5-A of the Act.
12. We may only refer to two or three decisions of the Supreme Court on the effect of not holding enquiry under section 5-A of the Act. In Farid Ahmed Abdul Samad v. The Municipal Corporation of the city of Ahmedabad, , the Supreme Court Observed as follows :
“The heard of section 5-A of the Land Acquisition Act is the hearing of objections and under sub-section (2) of that section a personal hearing is mandatorily provided for. Section 5-A does not rest on a person’s demand for personal hearing. The matter may be different if a person whose property is acquired abandons the right to a personal hearing provided for under section 5-A of the Land Acquisition Act.”
13. In Narayan v. State of Maharashtra, , the Supreme Court observed :
“Where certain lands are sought to be acquired and the public purpose indicated in the notification is the development of area for industrial and residential purposes that in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under section 5-A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under section 5-A of the Act to be completed without any impediment whatsoever to the execution of the scheme. Therefore, the very statement of the public purpose for which the land was to be acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under section 5-A of the Act.”
14. The latest pronouncement of the Supreme Court is still more pertinent, inasmuch as when an attempt is made to deprive a person of his property without giving him an opportunity of being heard, the Supreme Court observed in State of Punjab v. Gurdial Sinah, , as follows :
“Compulsory taking of a man’s property is a serious matter and the smaller the man than more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of the administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Article 14 (and 19), burke an enquiry under section 17 of the Act.”
15. In the facts and circumstances referred to above, it is evident that 8 acres of land from survey No. 362 of the same village was acquired earlier for the same purpose. The authorities had taken considerable time to find out whether the land was suitable or not for the construction purposes, inasmuch as the land was black cotton soil land and the foundation would have to be considerable depth. Thereafter, for the first time, the proposal was received in the office of the Land Acquisition Officer on October 13, 1975, and ultimately notification under section 17 and section 6 of the Act came to be issued on October 26, 1976. During this period of nearly one year, the Land Acquisition Officer at one stage had even drawn a programme of the proceedings and fixed date for hearing under section 5-A of the Act. It is not known prompted the authorities concerned to dispense with the enquiry under section 5-A. The only reason disclosed in the record and which, as indicated above, is wholly unjustifiable, in our view, was that the possession of the land in question had to be taken over immediately because allotted funds had to be utilised before the financial year ending March 31, 1977. This can hardly be said to be urgency in the matter, and the Legislative never contemplated such a situation when the urgency clause was to be resorted to. In our opinion, there was no justification whatsoever for not holding enquiry under section 5-A of the Act and hearing the objections of the petitioners.
16. In the result, we quash and set aside the impugned notification issued under section 17 and section 6 of the Act and published in the Maharashtra Government Gazette on October 26, 1976, and direct the authorities concerned to hold enquiry under section 5-A of the Act after giving proper notices to both the petitioners and any other persons interested in the land in question for raising their objections. If the authorities concerned still deem it fit to proceed with the acquisition, they will issue notices as stated above under section 5-A of the Act. The petition is, therefore, allowed and the rule is made absolute with costs.