ORDER
Mohan, C.J.
1. All these Writ Petitions can be disposed of by a Common Order since they question the validity of the land acquisition proceedings, particularly the invocation of urgency clause viz., Section 17 of the Land Acquisition Act, 1894, (hereinafter referred to as the Act).
2. The facts leading to these Writ Petitions may briefly be stated as follows:-
The Mangalore Super Thermal Power Project (hereinafter referred to as the Project) is a Project under the National Thermal Power Corporation Ltd. (hereinafter referred to as the Corporation). The Corporation is a Generating Company incorporated under the Electricity (Supply) Act, 1948. It has its registered office at NTPC Bhavan, Scope Complex, No. 7, Lodhi Road, New Delhi. The Corporation was set up by the Government of India in the year 1975. The object of setting up this Corporation is to supplement the shortfalls in the requirement of electrical energy by the various States. The Corporation set up various Super Thermal Power Projects in different parts of the Country, and it is now proposing to set up one such Project in Dakshina Kannada District of the Karnataka State, primarily for the benefit of the people of the Karnataka State. As a matter of fact the then Chief Minister wrote as early as 4th October 1988 to the Minister for Energy, Government of India, as follows:
'Dear Shri Vasant Satheji,
As you are aware, Karnataka State has facing a grim situation on the power front especially because of its heavy dependence on hydro-power (more than 80%). The continuation of drought during the last four years had hit power production in the State adversely. As against a connected load of around 7300 MW in the Karnataka Grid, the State has an installed capacity of only 2529 MW as on today. The energy availability from the internal sources is only of the order of 7800 MU as against a total projected unrestricted demand of 18420 MU. Taking into account, the State's share of energy available from the Central Projects in the southern Region and also the possible imports from other States, we can at best muster around 14366 MU only. Even the projects under implementation with an aggregated installed capacity of 1200 MW would hot be able to meet the growing demand for ..electrical power, in the State. In fact it is estimated by 1994-95 the demand gap would exceed 1000 MW at least. You will agree that such continuing shortage of power would cripple the growth of the State both on the industrial and agricultural fronts.
With a view to meet the growing power demand, it would be necessary for the State Government to add large blocks of power during the 8th and 9th Five Year Plan periods by taking up Super Thermal Power Stations at suitable locations. Karnataka Power Corporation has investigated and prepared a feasibility report for the establishment of a Multifuel Thermal Power Station at Nandikur near Mangalore. This site has infrastructure facilities necessary for a Thermal Power Station of an ultimate installed capacity of around 2000 MW. The Project Report for the I stage of the Project has been submitted to the Central Electricity Authority and other agencies of the Government of India, for clearance. The necessary data and clarifications to the various agencies have been already submitted and we are expecting the clearance of the project from various angles for implementation.
At this stage, I would like to bring to your notice that Government of India have not made so far any investments in power projects in the State of Karnataka. I therefore, request Government of India to direct the NTPC to take up the implementation of Multifuel Thermal Power Station at Nandikur near Mangalore as a part of their programme of achieving the additional power generation capacity in the Country during the 8th plan period. However, NTPC should plan for installing in the first phase itself 1260 MW or at least 1000 MW capacity and an ultimate installed capacity of 2000 MW at this Station so that there is substantial addition of generation capacity in the State and the Region, in such a case, I presume that additional power in proportion to the investment made by the State in this project would be allotted to our State as an additionality to the share of the power that as the home State would normally get out of a Central Project as per norm in force.
I trust you will give your considered thought to this matter and issue necessary suitable instructions to Ministry of Energy and to NTPC to take up the implementation of Multifuel Thermal Power Station at Nandikur near Mangalore, immediately. The State Government and the Karnataka Power Corporation would give the necessary assistance in taking up this project. I would be grateful if a decision on this matter is taken early.
Yours sincerely,
Sd/- S.R. Bommai.'
The Project is to be set up in various stages. The first stage has the capacity of 420 MW with ultimate capacity of 2420 MW. In view of paucity of power supply in the Southern Region and the dismal situation with acute power shortages it was decided to set up the Project in question at Nandikur in Udipi Taluk, Dakshina Kannada District. The lands in Nandikur and other surrounding villages in Udipi Taluk came to be selected after carrying out a detailed tech no-economic survey and various other tests. While selecting the said lands, the Authorities also took into consideration that the displacement of the families shall be to the minimum extent. As such 2500 acres of private lands required to be acquired, out of which an extent of about 73% are dry lands. Therefore, acquisition proceedings under the Act were initiated. Preliminary Notification under Section 4(1) of the Act, at the same time invoking the urgency clause viz., Section 17 of the Act, was issued on 5-2-1990. The same was published in Karnataka Gazette dated 22-2-1990. At a High Level Meeting held by the State Government, a decision was taken on 15-7-1989 that the Land Acquisition Cell might be advised to expedite the work of acquisition so that possession of lands could be taken and delivered to the Corporation by November 1989. Top priority was given to the Project. The District Revenue Authorities came to the conclusion that unless and until Section 17(1) of the Act was invoked thereby the process of acquisition was expedited, it would not be possible to complete the work of acquisition of lands quickly. Thus the Preliminary Notification under Section 4(1) read with Section 17(1) of the Act dispensing with the statutory enquiry under Section 5A of the Act, was issued. Pursuant to the said Preliminary Notification, Declaration under Section 6 of the Act was made on 28-6-1990 and published in the Karnataka Gazette on 19-7-1990 in respect of various lands including the lands of the petitioners. Thereafter notices were issued and served on the petitioners for holding an enquiry to pass Awards as provided under Section 11 of the Act. All possible steps have been taken for passing the Awards and to take possession. It was at this stage these Writ Petitions have come to be preferred.
3. The petitioners who are all owners of small holdings, question the acquisition only on two grounds. Mr. Mohandas N. Hegde. learned Counsel for the petitioners, argues that as early as 21-10-1989 a decision to dispense with statutory enquiry under Section 5A of the Act was taken with respect to an extent of 1433.19 Acres of land. If that be so, the invocation of urgency clause by resorting to Section 17(4) of the Act is bad in law in other words, no real urgency is made but. It is only when the acquisition proceedings cannot brook delay of even 30 days, urgency clause could be invoked. In support of this, reliance is placed on NARAYAN GOVIND GAVATE v. STATE OF MAHARASHTRA, : [1977]1SCR763 . In K.U.M. SAMITI v. RATAN PRAKASH, : AIR1988SC1459 the invocation of urgency clause was found to be imminent and therefore that was justified; but here in this case no such imminence exists. Courts have always taken the view that where an urgency clause is invoked as a matter of course that would be bad in law. Learned Counsel cites SESHAGIRI v. SPL. TAHSILDAR FOR LAND ACQUISITION, : AIR1965Ker92 , ACCHANAIK v. STATE OF MYSORE, 1974(2) KLJ 453 etc.
The second ground of attack is that even before the approval of the Project, the construction of staff quarters had gone on, and the public money should not be spent in that way.
4. In opposition to this, Mr. U.L. Narayanarao, learned Counsel appearing for the Corporation, would submit that as early as 18-8-1989 a Notification was issued under Section 29(2) of the Electricity (Supply) Act, 1948, for setting up Mangalore Super Thermal Power Station at Nandikur, Udipi Taluk, calling for representations, and thereafter it was decided to settle this Project. On 12-9-1989, an Agreement was entered into between the Government of the Republic of India and the Government of the Union of Soviet Socialist Republics, for the establishment of the Project in question. On 17-9-1990 a High Power Committee on Ecology recommended the Project for clearance. On 29-11-1990 the Public Investment Board also recommended to the Cabinet Committee. The Cabinet Committee of Economic Affairs is to finally okay the Project. In the meanwhile, a question arose as to how the acquisition of lands should be proceeded with. On 21;10-1989 a decision was taken to invoke the urgency clause viz., Section. 17 of the Act. It was also decided to sanction the posts of 1 Special Deputy Commissioner, and 4 Special Land Acquisition Officers along with other staff for acquisition of lands in respect of the Project in question. Preliminary Notification was issued on 5-2-1990 and was published in the Gazette on 22-2-1990. Construction of quarters for Officers and officials for the Project was found absolutely necessary at the earliest stage. Therefore the Preliminary Notification was issued invoking the urgency clause i.e., Section 17 of the Act. The work of the Project had to be completed within the time schedule viz., by the end of VIII Five Year Plan viz., March 1995. For the purpose of completing and commissioning of a Mega Thermal Power Plant of such a high magnitude the minimum time required from the date of availability of lands will be about 5 years. Therefore, should the lands be made available in 1990, the Project would be completed by 1995. The Project has a capacity of 2420 MW. Any delay in completing and commissioning the same would incur generation loss to the tune of 7 crores every day. Further, there would also be indirect loss to the extent of several crores of rupees incurred by the consumers of power. Therefore, this is fit case for invoking the urgency clause, and it has been rightly invoked. Having regard to the fact that this is a Russian-aided project, the completing and commissioning of the Project have been jointly agreed to by both the Governments as a time bound programme. The contention of the petitioners that the urgency clause has been invoked as a matter of course is totally unwarranted, nor can it be said that there is no application of mind before the invocation of the urgency clause.
As regards construction of quarters for the Officers and officials of the Project, it is absolutely essential and therefore it was taken up at the earliest stage. Thus it is submitted that there are no merits in these Writ Petitions.
5. The learned Government Advocate adopts the arguments of Mr. U.L Narayana Rao.
6. Having regard to the above submissions, two questions which arise for our consideration are:
(i) Whether invocation of urgency clause viz., Section 17 of the Act is justified? and
(ii) Whether construction of quarters for Officers and officials before the completion of the Project is valid?
7. Point No. 1:
The law with reference to the invocation of urgency clause viz., Section 17(4) of the Act may now be seen. The said Section reads as follows:
'17. SPECIAL POWERS IN CASES OF URGENCY:
xxx xxx xxx(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and if it does so direct, 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).'
Two conditions necessary for the invocation of this urgency clause, as stated in ISHWARIAL v. STATE OF GUJARAT, AIR 1968 SCR 70 are: (i) there must be urgency, and (ii) the land must be waste or arable. The opinion which the Government has to form under this Section thus relates both to the urgency as well as the nature and condition of the land. The subjective satisfaction of the Government in respect of these two objective factors is a condition precedent for the exercise of power to give direction under Section 17(4) of the Act. However, it requires to be stated that the words 'waste or arable' have been omitted by the Amending Act 68/1984. Therefore, the question would be whether urgency exists in this case or not. As to how the Project in question itself came to be conceived, we have got to refer to the following sequence of events:-
On 18-8-1989 a Scheme came to be published in the following terms:
'NTPC BHAVAN, SCOPE .COMPLEX, 7, INSTITUTIONAL AREA, LODI ROAD, NEW DELHI-3.
Ref .No. 01 SECTIGN 16 Dated: 18-8-1989MANGALORE SUPER THERMAL POWER STATION
STAGE I (2 x 219 MW)
Notification of the Scheme under Section 29(2) of the Electricity (Supply) Act 1948 as amended.
Whereas in exercise of its powers under Section 28 of the Electricity (Supply) Act, 1948, as amended, National Thermal Power Corporation Limited, New Delhi, Power Generating Company set up by the Government of India under the aforesaid Act (hereinafter referred to as 'Generating Company') with a view to meeting the growing demand for power in southern region, has prepared a scheme for establishment, construction and operation of generating station, tie lines, sub-stations and associated transmission lines in the States of southern region being located at village Nandikur, Taluk Udipi, District O.K. of Karnataka State (hereinafter referred to as 'Mangalore STPS'): The details of the said scheme are given below:
Salient features of the Scheme:
The Power Station facilities of the Mangalore STPS will include two 210 MW capacity generating units with all associated facilities and auxiliary equipment including pollution control equipments such as Electro-Static precipitators etc/ The associated transmission system proposed for the Mangalore STPS consists of the following:
a) Mangalore (Karnataka) - Hassan (Karnataka) 400 Kv D/c.
b) Mangalore (Karnataka) - Mercara (Karnataka) 220 Kv D/C line 35 kms.
c) Loop-in-Loop-out of existing Shimoga (Karnataka) Mysore (Karnataka) 220 Kv D/C line of Karnataka Electricity Board (KEB) at Hassan (Karnataka) sub-station.
d) 2 Nos. each 315 MVA 400/220/Kv auto-transformers at Mangalore (Karnataka) and Hassan (Karnataka) sub-station.
e) 1 No. each 315 MVA 400/220 Kv auto-transformers at Munirabad (Karnataka) and Cuddapah (Andhra Pradesh) sub-sections along with establishment of 220/400 kv. switch yard at Mangalore STPS (Karnataka), Extension of KEB - 220 Kv sub-station at Mercara (Karnataka), a new 220/400 kv. sub-station at Hassan (Karnataka) and extension of two NTPC 400 Kv sub-station at Munirabad (Karnataka) and Cuddapah (Andhra Pradesh).
The coal for the power station shall be supplied from Talchar Coal Fields in Orissa, Coal will be transported by rail from Talcher to Paradip Port, from Paradip Port Coal will be shipped to Mangalore Port and from Mangalore Port transported to the power station by rail.
The cooling water system will be once through type water shall be drawn from Mulki river and after use and proper treatment shall be discharged back into the sea.
LOCATION AND TIME SCHEDULE:
The Mangalore STPS along with its township is proposed to be located at village Nandikur, Taluk Udipi, District Dakshina Kannada of Karnataka State. The benefits from the said scheme in the form of power generation would commence towards the end of the eighth plan (1990-95).ESTIMATED COST OF THE SCHEME:
The estimated cost of the proposed scheme is Rs. 897.06 crores including Rs. 98.21 crores for the associated transmission system.POWER OF THE GENERATING COMPANY UNDER THE INDIAN TELEGRAPH ACT, 1884.
For the proper and efficient execution of Mangalore STPS the Generating Company shall have all necessary powers in accordance with the provisions of Section 42 of the Electricity (Supply) Act, 1948 and shall also exercise the said powers including the powers which the Telegraph Authority possess under Part-Ill of the Indian Telegraph Act, 1884, with respect to a telegraph establishment maintained by the Government or to be so established or maintained. Notice is hereby given under Section 29(2) of the said Act that any licensee or other person so interested may make his representation, if any, within two months from the date of publication of this notification. Thereafter no further representations will be considered.
BY