{"id":249675,"date":"2002-03-07T00:00:00","date_gmt":"2002-03-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/first-land-acquisition-collector-vs-nirodhi-prakash-gangoli-anr-on-7-march-2002"},"modified":"2015-02-10T09:02:41","modified_gmt":"2015-02-10T03:32:41","slug":"first-land-acquisition-collector-vs-nirodhi-prakash-gangoli-anr-on-7-march-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/first-land-acquisition-collector-vs-nirodhi-prakash-gangoli-anr-on-7-march-2002","title":{"rendered":"First Land Acquisition Collector … vs Nirodhi Prakash Gangoli & Anr on 7 March, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
First Land Acquisition Collector … vs Nirodhi Prakash Gangoli & Anr on 7 March, 2002<\/div>\n
Author: Pattanaik<\/div>\n
Bench: G.B. Pattanaik, Brijesh Kumar<\/div>\n
           CASE NO.:\nAppeal (civil) 1913  of  2002\n\n\n\nPETITIONER:\nFIRST LAND ACQUISITION COLLECTOR & ORS.\n\n\tVs.\n\nRESPONDENT:\nNIRODHI PRAKASH GANGOLI & ANR.\n\nDATE OF JUDGMENT:\t07\/03\/2002\n\nBENCH:\nG.B. Pattanaik & Brijesh Kumar\n\n\n\n\nJUDGMENT:\n<\/pre>\n
PATTANAIK,J.\n<\/p>\n
Leave granted.\n<\/p>\n
The acquisition proceeding in respect of Premises No. 27\/1
\nand 27\/B on Dehi Serampore Road, Calcutta having been set
\naside by the Calcutta High Court, the Land Acquisition
\nCollector is in appeal against the same.  The premises in
\nquestion had been requisitioned under the provisions of West
\nBengal Requisition and Control (Temporary Provision) Act,
\n1947, for accommodating students of Calcutta National
\nMedical College, Calcutta by order dated 10th April, 1948.
\nAn acquisition proceeding in respect of the same premises
\nwas initiated by issuance of a notice under Section 4<\/a> of the
\nLand Acquisition Act (hereinafter referred to as “The Act<\/a>“),
\nby Notification dated 17.12.1982.  Declaration under Section
\n6<\/a> of the Act was issued on 13.12.1989. The acquisition
\nproceedings related to both the premises, as aforesaid as well
\nas a common passage.  One K.K. Dugar and one AP Ganguly
\nclaiming right of way on the common passage assailed the
\naforesaid acquisition proceeding by filing a Writ Petition in
\nthe Calcutta High Court. The learned Single Judge of the
\nCalcutta High Court quashed the Notification by order dated
\n3rd April, 1992.  The said order was assailed by filing an
\nappeal to the Division Bench, but the appeal itself being
\nbarred by time and the application for condonation not
\nhaving been allowed the appeal stood dismissed.\n<\/p>\n
Subsequently a fresh Notification was issued under Section 4<\/a>
\nonly in respect of the premises No. 27\/1a and 27\/1b
\nexcluding the common passage and notices were issued
\nunder Sections 9<\/a>, 10<\/a> and 11<\/a> of the Act requiring interested
\npersons to file application for compensation.  Be it be stated,
\nthat  the premises in question stood de-requisitioned by an
\norder dated 2.7.1993.  Writ Petition having been filed
\nChallenging the notices issued under sections 9<\/a>,10<\/a> and 11<\/a>
\nwas registered as Writ Petition No. 805 of 1994.  The High
\nCourt quashed the notices issued under Sections 9<\/a>,10<\/a> & 11<\/a> of
\nthe Act by Order dated 25.8.1994 and it was further directed
\nthat the vacant possession of the disputed premises should be
\nhanded over within a period of six months.  The aforesaid
\nWrit Petition had been filed by the owner of the premises in
\nquestion.  Though time was extended by the Court for
\ndelivery of possession but it is alleged that no possession had
\nbeen delivered to the owner.  On 29.11.1994 a fresh
\nNotification was issued under Sections 4(1)<\/a> and 17(4)<\/a> of the
\nAct for the purpose of use of National Medical College.
\nDeclaration under Section 6<\/a> of the Act was issued on
\n30.8.1995.  Public Notices of substance of the declaration
\nwas also given at the convenient places in the locality in two
\ndaily newspapers published on 10.9.95.\tNotices under
\nSections 9<\/a> and 10<\/a> of the Act were served upon the interested
\npersons on 18.10.95 inviting claims by 2.11.95.\t The State
\nGovernment sanctioned Rs.50,41,515\/- for paying the
\ncompensation  amount.  The Land Acquisition Collector
\nissued notices under Section 11<\/a> on 27.10.95 and the same
\nwas served upon the persons interested on 2.11.95.  The
\naforesaid notice was assailed by filing a Writ Petition which
\nwas registered as Writ Petition No. 1900 of 1995 challenging
\nthe entire acquisition.\t The learned Single Judge of the
\nCalcutta High Court disposed of the Writ Petition by
\njudgment dated 14.10.199 by holding that the Notification
\nissued under Sections 4<\/a> and 6<\/a> as well as invocation of
\nSection 17(1)<\/a> and 17(4)<\/a> dispensing with hearing under
\nSection 5A<\/a> of the Act is not assailable.  It , however, directed
\nthat the appropriate authority should proceed afresh from the
\nstage of issuance of Notification under Section 9<\/a> and the
\nacquisition proceeding should be completed with utmost
\nexpedition. Pursuant to the aforesaid judgment of the learned
\nSingle Judge, Notification under Section 9<\/a> of the Act was
\nissued again on 15.10.1999.  But the owners assailed the
\nlegality of the order of the learned Single Judge by filing an
\nappeal to the  Division Bench.\tThe Division Bench of the
\nCalcutta High Court by judgment dated 17.5.2000 having
\nallowed the appeal  and having quashed the acquisition
\nproceeding, the Special Land Acquisition Officer has
\napproached this Court.\tThe Division Bench while disposing
\nof the Writ Appeal by the impugned judgment have been
\npersuaded to interfere, substantially on the ground that since
\nthe earlier judgment and direction of the learned Single Judge
\nof Calcutta High Court dated 25.8.1994 directing delivery of
\nthe possession to the owner has not been complied with, the
\nacquisition is malafide\t and is not in accordance with law.
\nThe Division Bench in the impugned judgment came to hold
\nthat grave urgency  and emergency being the pre-condition
\nfor invoking powers under sub-sections (1) and (4) of Section
\n17<\/a>, and in the case in hand, no such urgency having been
\npresent, invocation of power under Section 17(4)<\/a> gets vitiated
\nand, therefore, the commencement of the acquisition
\nproceeding must be held to be not in accordance with law.
\nHaving quashed the acquisition proceeding the Court further
\nobserved that it would be open to start a proceeding afresh in
\naccordance with law.\n<\/p>\n
\tMr. Altaf Ahmad, learned Additional Solicitor General
\nappearing for the appellant contended, that the purpose of
\nacquisition being undoubtedly a public purpose, namely, for
\nthe use of National Medical College and the Competent
\nAuthority being of the opinion that the facts situation require
\ninvocation of urgency clause under Section 17<\/a> of the Act, the
\nCourt in exercise of its extraordinary jurisdiction could not
\nhave interfered with the aforesaid subjective satisfaction of
\nthe authority in the matter of urgency and, therefore, the
\norder is vitiated.  The learned Additional Solicitor General
\nfurther contended, that non-delivery of possession, pursuant
\nto the earlier direction of the High Court, could not be a
\nground for quashing a valid Notification issued under
\nSections 4(1)<\/a> & 17(4)<\/a> of the Act.  The High Court, therefore,
\ncommitted  serious error in interfering with the acquisition in
\nquestion.  According to the learned Additional Solicitor
\nGeneral the conclusion of the High Court that the acquisition
\nis malafide is based upon non-existence of any materials, and
\ntherefore, the same must be interfered with.  In reply to the
\nsubmission of the counsel appearing for the respondents to
\nthe effect that the object of invoking the urgency clause
\nunder Section 17<\/a> being to take immediate possession of the
\nacquired land and in the case in hand that possession being
\nwith the Medical College ever since the premises stood
\nrequisitioned under the provisions of requisition under West
\nBengal Act<\/a> of 1947, the very pre-condition of attracting
\nSection 17<\/a> was non existent, it is stated that the earlier
\npossession was not the possession of a lawful owner and the
\nNotification for acquisition having been quashed by the
\nCourt on two earlier occasions, the acquiring authority felt
\nthe necessity of urgent acquisition, and therefore the
\ncontention of the respondents’ counsel is unsustainable.\n<\/p>\n
\tMr. Bhaskar Gupta, learned senior counsel appearing
\nfor one of the respondent and Mr. Ashok H. Desai, learned
\nsenior counsel, appearing for other respondents vehemently
\nurged that in respect of a land which is under possession of
\nthe State Government or any other authority, the emergency
\npower under Section 17<\/a> of the Act cannot be invoked
\ninasmuch as the legislature have conferred power to take
\npossession of the acquired land even without complying with
\nthe provision of Section 5A<\/a> of the Act only in case of grave
\nemergency where the acquisition cannot brook the delay of
\n30 days period which is contemplated for filing of Petition
\nunder Section 5A<\/a>.  This being the position and the Medical
\nCollege being in possession of the premises right from 1948
\nthe appropriate authorities could not have invoked the
\nemergency provision under Section 17<\/a> of the Act.  The
\ncounsel also further urged that the right conferred under
\nSection 5A<\/a> is a valuable right to the owner and the owner
\nshould not be deprived of the same unless there exists real
\nemergency.  It was further urged that the High Court was
\njustified in taking into account the defiant attitude of the
\nGovernment in not delivering possession notwithstanding the
\nearlier orders of the Court directing possession to be
\ndelivered within a period of six months.\n<\/p>\n
\tThe question of urgency of an acquisition under Section
\n17(1)<\/a> and (4) of the Act is a matter of subjective satisfaction
\nof the Government and ordinarily it is not open to the Court
\nto make a scrutiny of the propriety of that satisfaction on an
\nobjective appraisal of facts.  In this view of the matter when
\nthe Government takes a decision, taking all relevant
\nconsiderations into account and is satisfied that there exists
\nemergency for invoking powers under Section 17<\/a> (1) and (4)
\nof the Act, and issues Notification accordingly, the same
\nshould not be interfered with by the Court unless the Court
\ncomes to the conclusion that the appropriate authority had not
\napplied its mind to the relevant factors or that the decision
\nhas been taken by the appropriate authority mala fide.
\nWhether in a given situation there existed urgency or not is
\nleft to the discretion and decision of the concerned
\nauthorities.  If an order invoking power under Section 17(4)<\/a>
\nis assailed, the Courts may enquire whether the appropriate
\nauthority had all the relevant materials before it or whether
\nthe order has been passed by non-application of mind.  Any
\npost Notification delay subsequent to the decision of the State
\nGovernment dispensing with an enquiry under Section 5(A)<\/a>
\nby invoking powers under Section 17(1)<\/a> of the Act would not
\ninvalidate the decision itself specially when no mala fides on
\nthe part of the government or its officers are alleged.
\nOpinion of the State Government can be challenged in a
\nCourt of law if it could be shown that the State Government
\nnever applied its mind to the matter or that action of the State
\nGovernment is  mala fide.    Though the satisfaction under
\nSection 17(4)<\/a> is a subjective one and is not open to challenge
\nbefore a Court of law, except for the grounds already
\nindicated, but the said satisfaction must be of the Appropriate
\nGovernment and that the satisfaction must be, as to the
\nexistence of an urgency.     The conclusion of the
\nGovernment that there was urgency even though cannot be
\nconclusive but is entitled to great weight,  as has been held by
\nthis Court in Jage Ram and others vs. The Sxtate of
\nHaryana and Others<\/a>  AIR 1971 Supreme Court 1033.
\nEven a mere allegation that power was exercised mala fide
\nwould not be enough and in support of such allegation
\nspecific materials should be placed before the Court.  The
\nburden of establishing\tmala fides is very heavy on the person
\nwho alleges it.\t Bearing in mind the aforesaid principles, if
\nthe circumstances of the case in hand are examined it would
\nappear that the premises in question was required for the
\nstudents of National Medical College, Calcutta and the
\nNotification issued in December 1982 had been quashed by
\nthe Court and the subsequent Notification issued on
\n25.2.1994 also had been quashed by the Court.\tIt is only
\nthereafter the Notification was issued under Section 4(1)<\/a> and
\n17(4)<\/a> of the Act on 29.11.1994 which came up for
\nconsideration before the High Court.  Apart from the fact that
\nthere had already been considerable delay in acquiring the
\npremises in question on account of the intervention by
\nCourts,\t  the premises was badly needed for the occupation of
\nthe students of National Medical College, Calcutta.    Thus,
\nexistence of urgency was writ large on the facts of the case
\nand therefore,\t said exercise of power in the case in hand,
\ncannot be interfered with by a Court of law on a conclusion
\nthat there did not exist any emergency.\t The conclusion of the
\nDivision Bench of Calcutta High Court, therefore, is
\nunsustainable.\n<\/p>\n
\tIt is indeed difficult for us to uphold the conclusion of
\nthe Division Bench that acquisition is mala fide on the mere
\nfact that physical possession had not been delivered pursuant
\nto the earlier directions of  a learned Single Judge of Calcutta
\nHigh Court dated 25.8.94.  When the Court is called upon to
\nexamine the question as to whether the acquisition is mala
\nfide or not, what is necessary to be inquired into and found
\nout is, whether the purpose for which the acquisition is going
\nto be made, is a real purpose or a camouflage.\t By no stretch
\nof imagination, exercise of power for acquisition can be held
\nto be mala fide, so long as, the purpose of acquisition
\ncontinues and as has already been stated, there existed
\nemergency to acquire the premises in question.\tThe premises
\nwhich was under occupation of the students of the National
\nMedical College, Calcutta, was obviously badly needed for
\nthe college and the appropriate authority having failed in
\ntheir attempt earlier twice, the orders having been quashed by
\nthe High Court, had taken the third attempt of issuing
\nnotification under Sections 4(1)<\/a> and 17(4)<\/a> of the Act, such
\nacquisition cannot be held to be mala fide and, therefore, the
\nconclusion of the Division Bench in the impugned Judgment
\nthat the acquisition is mala fide, must be set aside and we
\naccordingly set aside the same.\n<\/p>\n
\tThe arguments advanced on behalf of the respondents
\nthat as the premises in question continued to be under
\npossession of the Calcutta Medical College,  invocation of
\nspecial powers under Section 17<\/a> was vitiated and a valuable
\nright of the land owners to file objections under Section 5A<\/a>
\ncould not have been taken away.\t According to the counsel
\nfor the respondents,  Section 5A<\/a> of the Act,  merely gives an
\nopportunity to the land owner to object to the acquisition
\nwithin 30 days from the date of publication of the notification
\nunder Section 4<\/a>, the power under Section 17<\/a> dispensing with
\ninquiry under Section 5A<\/a> can, therefore, be invoked where
\nthere exists urgency to take immediate possession of the land,
\nbut where possession is with the acquiring authority, there
\ncannot exist any urgency, and, therefore the exercise of that
\npower is patently erroneous.  In support of this contention,
\nreliance was placed on the decision of this Court in Balwant
\nNarayan Bhagde vs. M.D. Bhagwat and Ors<\/a>., 1976(1)
\nS.C.C. 700 .   We are unable to accept this contention since
\nthe same proceeds on a basic misconception about the
\npossession of the premises.  The premises in question had
\nbeen requisitioned under the provisions of the Requisition
\nAct and stood released from requisition by operation of
\nSection 10B<\/a> of the said Act,  since 1993. Even though the
\npremises stood occupied by the students of the medical
\ncollege, but such occupation was neither as owner nor was
\nlawful in the eye of law.  To effectuate lawful possession and
\nthe purpose being undoubtedly a public purpose, the State
\nGovernment had been attempting ever-since December, 1982
\nand each of its attempt had failed on account of Court’s
\nintervention.  It is in this context, the legality of exercise of
\npower under Section 17<\/a> of the notification dated 29.11.94 is
\nrequired to be adjudicated upon.    In our considered opinion,
\nhaving regard to the facts and circumstances narrated above,
\nthe exercise of power under Section 17<\/a> by the State
\nGovernment, cannot be held to be illegal or mala fide and
\nconsequently, the impugned Judgment of the Division Bench
\nof Calcutta High Court cannot be sustained.  The learned
\nJudges of the High Court have been totally swayed away by
\nthe  fact  of  non-implementation of the directions of
\nBatabyal J,   in his order dated 25.8.1994,  but that by itself
\nwould not be a ground for annulling lawful exercise of power
\nunder the provisions of the Land Acquisition Act<\/a>.  We,
\ntherefore, set aside the impugned Judgment of the Division
\nBench of Calcutta High Court and hold that the acquisition in
\nquestion is not vitiated on any ground.\t The acquisition
\nproceeding, therefore, is held to be in accordance with law.
\nThe appeal is allowed.\t There will be no order as to costs.\n<\/p>\n
\t\t\t\t\t   …………J.\n<\/p>\n
\t\t\t\t\t  (G.B.\t PATTANAIK)<\/p>\n
\t\t\t\t\t  .J.\n<\/p>\n
\t\t\t\t\t  (BRIJESH KUMAR)
\nMarch  07, 2002.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India First Land Acquisition Collector … vs Nirodhi Prakash Gangoli & Anr on 7 March, 2002 Author: Pattanaik Bench: G.B. Pattanaik, Brijesh Kumar CASE NO.: Appeal (civil) 1913 of 2002 PETITIONER: FIRST LAND ACQUISITION COLLECTOR & ORS. Vs. RESPONDENT: NIRODHI PRAKASH GANGOLI & ANR. DATE OF JUDGMENT: 07\/03\/2002 BENCH: G.B. Pattanaik & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249675","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nFirst Land Acquisition Collector ... vs Nirodhi Prakash Gangoli & Anr on 7 March, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/first-land-acquisition-collector-vs-nirodhi-prakash-gangoli-anr-on-7-march-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"First Land Acquisition Collector ... vs Nirodhi Prakash Gangoli & Anr on 7 March, 2002 - 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