Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4672 of 2010 1. Vikas Vidyalaya, Neori, Ranchi, through its authorized signatory, Arup Kumar Mukhopadhyay 2. Arup Kumar Mukhopadhyay, Principal, Vikas Vidyalaya, Neori, Ranchi ….. Petitioners Versus 1. The State of Jharkhand, through the Secretary, Revenue and Land Reforms Department, Government of Jharkhand, Ranchi 2. The Secretary, Road Construction Department, Government of Jharkhand, Ranchi 3. The Additional Secretary, Revenue and Land Reforms Department, Government of Jharkhand, Ranchi 4. The Collector, Ranchi 5. The District Land Acquisition Officer, Ranchi ….. Respondents ----- CORAM HON’BLE MR. JUSTICE RAJESH SHANKAR ----- For the Petitioners: M/s Indrajit Sinha, Vipul Poddar, Roopa Mitra For the Respondents: M/s Atanu Banerjee (G.A), S.K.Ghosh (J.C to G.A) ----- C.A.V on 30.11.2017 Pronounced on 15.12.2017 RAJESH SHANKAR,J The present writ petition has been filed for quashing the notification contained in Letter No. 10/DLA Ranchi (Path)–60/2009- 50/Ra, Ranchi dated 12.01.2010, issued under Section 4 of the Land Acquisition Act, 1894 as amended vide Bihar Act 11 of 1961 (hereinafter referred to as 'the Act, 1894'), under the signature of the Additional Secretary, Revenue and Land Reforms Department, Government of Jharkhand (respondent No.3) whereby, he has purported to authorize the Additional Collector-cum-Land Acquisition Officer, Ranchi and his sub-ordinate officers to survey and enter upon the chunks/plots of the land, as mentioned in the said notification, which belongs to the petitioners. Further prayer has been made for quashing the declaration contained in Letter No. 10/DLA Ranchi (Path)- 60/2009-51/Ra.Ranchi dated 12.01.2010, issued under Section 6 of the Act, 1894 by the Additional Secretary (respondent No.3) declaring therein that the land mentioned in the said declaration, which belongs to the petitioners, has been acquired by the respondents. It has also been prayed for quashing of four notices all dated 27.08.2010 and one 2 notice dated 26.08.2010, issued under Section 12(2) of the Act, 1894 by the respondent No.4 calling upon the petitioners to receive compensation, as mentioned therein, for acquisition of the petitioners’ land on 04.09.2010, within a period of only three days from the date of receipt of the said notices.
2. The brief factual background of the case, as stated in the writ petition is that the petitioner No.1 is an educational institution/school imparting education since 1952. The Government of Jharkhand conceived a plan for construction of Ring Road on the circular outskirts of Ranchi town and for the aforesaid purpose, the respondent No.3 issued notification contained in Letter No. 10/DLA Ranchi (Path)- 60/2009-50/Ra, Ranchi dated 12.01.2010 under Section 4 of the Act, 1894 by invoking the urgency provision under Section 17(4) of the Act, 1894 mentioning, inter alia, that the land covered under the said notification has been acquired by the respondents and he purported to authorize the Additional Collector, Land Acquisition Officer, Ranchi and his Sub-ordinate officers/employees to survey and enter upon the land belonging to the petitioners. Thereafter, the respondent No.3 issued a declaration contained in Letter No. 10/DLA Ranchi (Path)–60/2009- 51/Ra, Ranchi dated 12.01.2010 under Section 6 of the Act, 1984. The petitioners were served four notices, all dated 27.08.2010 and one notice dated 26.08.2010, only on 01.09.2010 calling upon the petitioners to collect the amount of the alleged compensation on 04.09.2010.
3. Mr. Indrajeet Sinha, learned counsel appearing on behalf of the petitioners, submits that Section 17 of the Act, 1894 (as amended vide Bihar Act 11 of 1961) confers extraordinary powers to the Government authorities by dispensing with the normal procedure laid down under Section 5-A of the Act, 1894, which can only be exercised in exceptional case of urgency and such power cannot be lightly resorted 3 to, except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. It is further submitted that the respondents have violated the provisions of the Act, 1894 by surpassing the remedies available to the petitioners under Section 5-A of the Act, 1894 by invoking the urgency provisions of the Act, 1894. It is also submitted that the urgency provision has been incorporated in the Act, 1894 to meet extremely urgent situation and in the instant circumstance, no such urgency existed, as the respondents had conceptualized the construction of the proposed Ring Road as far back as in the year 2004-05 itself. There was more than sufficient time available to the respondents to resort to the normal procedure for acquisition of the land in question. The proposed acquisition of the land will bisect the existing premises of the school and, thus, the school will be deprived of many facilities meant for co-curricular activities of the students. It is further submitted that when any acquisition of land is to be made, the Government is under moral and legal duty to ensure that the acquisition would cause least inconvenience and dislocation of the people getting affected by such acquisition. There is ample land available around all sides of the school and by taking slightly different route, the purpose of commencement and completion of the proposed Ring Road can be fully achieved. Due to the proposed acquisition, 32 acres (approx) of land will be cut off from the school resulting into a situation that the students and staffs will have to cross the proposed Ring Road, which is not safe. It is further submitted that it is not a fact that only 4.47 acres of land is within the boundary wall, rather, 9.83 acres of land within the boundary wall of the school is proposed to be acquired. It is also not a fact that most of the land proposed to be acquired belongs to other raiyats and if the respondents have paid compensation to the other raiyats without following the due procedure 4 provided under the Act, 1894, the land acquisition is at the risk of the respondents. Although the construction of Ring Road is a public requirement, but it is not so emergent that a valuable right of the land holder under section 5A of the Act, 1894 could be taken away. It is further submitted that by virtue of the amendment carried out by the erstwhile State of Bihar in section 17 of the Act 1894, the provisions of Section 17(1) can only be invoked in respect of a land which is “waste or arable”. Though as per the records of right, the land in question is waste land, yet the said records of right would not be the sole criteria for determining whether the land is waste or arable, rather the Government should have considered the present nature and condition of the land. Since in the instant case, the land in question falls within the boundary wall of the school and is being used by it, the same cannot be treated as waste or arable land. It is further submitted that the Hon’ble Supreme Court has consistently held that the right to object under Section 5A of the Act, 1894 is a valuation right and Section 17 is an exception to the general rule, hence the same can be invoked only when the proposed acquisition relates to a public purpose which cannot brook any delay on account of the objections. Administrative laxity or lethargy cannot be a ground for invoking the urgency clause. It is further submitted that the power under Section 17 of the Act, 1894 can be exercised only when the State Government is satisfied on the basis of materials before it that an occasion has arisen for invoking the urgency provision coupled with further satisfaction that the right to file objections should also be made inapplicable and such satisfaction cannot be perverse, arbitrary and unreasonable.
4. In support of the above contentions, the learned counsel for the petitioners puts reliance upon the following judgments: i. Union of India & Ors. Vs. Krishna Lal Arneja & Others 5 reported in (2004) 8 SCC453ii. Mahender Pal & Others Vs. State of Haryana & Others reported in (2009) 14 SCC281iii. Union of India & Others Vs. Mukesh Hans reported in (2004) 8 SCC14iv. Narayan Govind Gavate etc. Vs. State of Maharashtra & Others reported in (1977) 1 SCC133v. Raja Anand Brahma Shah Vs. The State of U.P & Others reported in AIR1967SC1081vi. Laxmi Devi Vs. State of Bihar & Others reported in (2015) 10 SCC241vii. Darshan Lal Nagpal (dead) by LRS. Vs. Government of NCT of Delhi & Others reported in (2012) 2 SCC327viii. Bharat Sewak Samaj Vs. Lieutenant Governor & Others reported in (2012) 12 SCC675ix. Radhy Shyam (Dead) through LRs. & Others Vs. State of Uttar Pradesh & Others reported in (2011) 5 SCC5535. Per contra, Mr. Atanu Banerjee, learned Government Advocate appearing on behalf of the State-respondents, submits that due to immense increase in traffic inflow, the Government of Jharkhand decided to construct Ring Road on circular outskirts of Ranchi city. Accordingly, on the basis of the technical survey and DPR, the centre line was fixed for the construction of the Ring Road by the technical experts. It is further submitted that the proposed road does not disturb the major part of the school including its buildings as the proposed road is only crossing the side of the boundary wall or overlapping at some places. Moreover, out of the total 4.47 acres of the acquired land falling inside the boundary wall of the school, it has been found that most of the land belong to the other raiyats and only 0.16 acre of land of the petitioner-school actually lies on the alignment of the Ring Road. It is also submitted that the land of the petitioner- school has been acquired under Section 17 of the Act, 1894 by invoking the urgency provisions for which a declaration was also made 6 on 12.01.2010 under Section 6 of the Act, 1894. The part of acquired land which is within the boundary wall of the school, does not affect any institutional structure. It is also submitted that in the opinion of the Government, the present acquisition is of emergent nature for public purpose and, thus, the provision of Section 17(4) of the Act, 1894 has rightly been invoked in the present case.
6. Learned G.A, in support of the above contentions, puts reliance on the following judgments: i. Mahender Pal & Others Vs. State of Haryana & Others reported in (2009) 14 SCC281ii. M/s. Meena Devi Jindal Medical Institute and Research Centre Vs. Lt. Governor, Delhi & Others reported in 2017 SAR593(Supreme Court) iii. Collector (LA) Vs. Andaman Timber Industries, reported in (2014) 16 SCC780iv. Arnold Rodricks & Another Vs. State of Maharashtra & Others reported in AIR1966SC1788v. Navneet Ram Batra Vs. State of U.P. & Others reported in (1975) 2 SCC727vi. Chameli Singh & Others Vs. State of U.P. & Another reported in (1996) 2 SCC549vii. Union of India & Others Vs. Ghanshyam Dass Kedia & Others reported in (1996) 2 SCC285viii. Anand Singh & Another Vs. State of U.P & Others reported in (2010) 11 SCC242ix. Rajasthan Housing Board & Others Vs. Shri Kishan & Others reported in (1993) 2 SCC84x. Satendra Prasad Jain & Others Vs. State of U.P. & Others reported in (1993) 4 SCC369xi. Nand Kishore Gupta & Others Vs. The State of UP & Others reported in (2010) 10 SCC282xii. Deepak Pahua & Others Vs. Lt. Governer Delhi & Others reported in (1984) 4 SCC3087. Heard the learned counsel for the parties and perused the materials available on record. The part of the land falling inside the boundary wall of the petitioner-school has been acquired by the 7 respondents for construction of the Ring Road on the circular outskirts of Ranchi town by invoking the urgency provision under Section 17(4) of the Act, 1894. The petitioners have challenged the acquisition mainly on the ground that the nature of acquisition was not so emergent for which the provision under Section 17(4) could be invoked. The other ground urged by the petitioners is that the acquisition will divide the school into two parts, which will be detrimental to the cause of the school and, therefore, the same could have been avoided by acquiring the other vacant land around the school.
8. The main issue raised by the petitioners in the writ petition is that in the present factual context, whether the State of Jharkhand and its authorities are justified in invoking the urgency provision of Section 17(1) read with Section 17(4) of the Act, 1894 (as amended vide Bihar Act 11 of 1961). Thus, before appreciating the rival submissions made on behalf of the parties, it would be appropriate to discuss the respective judgments relied upon by the parties.
9. I have perused the judgments relied upon by learned counsel for the petitioners. In the case of Bharat Sewak Samaj Vs. Lieutenant Governor & Ors. (Supra), the Hon'ble Apex Court appreciated the fact that the notice issued under Section 4(1) of the Land Acquisition Act, 1894 was earlier issued on 06.01.1969 and the Land Acquisition Collector had passed an award in the year 1975. The said acquisition proceeding was challenged in a suit filed in the year 1975, which was decreed by the learned Single Judge of Delhi High Court in the year 1993 holding, inter alia, that the notification issued under Sections 4 & 6 of the Act, 1894 were illegal and without jurisdiction. Under the said background, invoking of urgency provision in the year 2004 by the Government of NCT of Delhi was held to be arbitrary and unjust. Moreover, in the said case, the Government of NCT of Delhi intended 8 to develop Mehrauli Heritage Zone under the 'Planned Development of Delhi' which was not found by the Hon'ble Supreme Court so urgent for dispensing with the provisions of Section 5-A. In the case of Union of India & Ors. Vs. Mukesh Hans (Supra) also, the land was sought to be acquired by the Lieutenant Governor of Delhi by invoking the urgency provision and ignoring the fact that there had been earlier attempt to acquire the said land. Moreover, the purpose for which the said land was sought to be acquired was for convening the annual festival i.e. “Phool Walon Ki Sair”. Under the said factual background, the Hon'ble Supreme Court held that invoking of urgency provisions for acquisition of the said land is illegal. In the case of Union of India & Ors. Vs. Krishan Lal Arneja & Ors. (Supra), after lapse of the Requisitioning and Acquisition of Immovable Property Act, 1952, the land continued to remain in possession of the Government and thereafter notification under Section 4(1) was issued for acquisition thereof by invoking the urgency provisions under Section 17 of the Act, 1894. It was thus held by the Hon'ble Supreme Court that invocation of the urgency clause is not justified mainly due to the reason that the Government otherwise had adequate time for taking recourse of normal acquisition. Further, in the case of Darshan Lal Nagpal (Supra), there had been delay of more than five years from the date of proposal till issuance of notice under Section 4 read with Section 17(4) of the Act, 1894 and, thus, the Hon'ble Apex Court held that in such a situation, the Government had no such urgency so as to invoke the provisions of Section 17 of the Act, 1894. In the case of Laxmi Devi (Supra), the factual context was that the land acquisition proceeding was initiated thrice and the same lapsed and the land was in possession of the State. The Hon’ble Supreme Court set aside the acquisition proceeding and directed the State Government to initiate fresh proceeding, but the possession of the Government over the land 9 was not disturbed. In the case of Raja Anand Brahman Shah (Supra), the land was acquired by invoking the urgency provision “for limestone quarry” treating the land as “waste or arable land”, but it was found that there were one lac trees upon the said land and as such the Hon’ble Supreme Court quashed the acquisition notification. Further, in the case of Narayan Govind Govate. (Supra), the fact was that the land was sought to be acquired invoking the urgency provision for industrial and residential purpose. The Hon’ble Supreme Court held that the purpose for which the land was sought to be acquired, the said purpose itself on the face of it, does not call for any such action, barring exceptional circumstances so as to take immediate possession, without even holding a summary enquiry under Section 5A of the Act, 1894. Moreover, in the case of Radhy Shyam (Supra), the land was sought to be acquired for industrial purpose and the Hon’ble Supreme Court held that the objective of development of an industrial area cannot be achieved by pressing some buttons on the computer screen, which actually needs lot of time and as such the time required for ensuring compliance of the provisions contained in Section 5-A of the Act, 1894, cannot be portrayed as delay, which would frustrate the purpose of acquisition.
10. The ratio laid down by the Hon’ble Supreme Court in all these judgments are that the power conferred to the State under Section 17 of the Act, 1894 for acquisition of any land in case of urgency without resorting to the provisions of Section 5-A is an extraordinary power and the same cannot be exercised in routine course and before exercising such power, the State Government should come to its subjective satisfaction so as to ensure that real urgency to take immediate possession of the land exists. Before exercising such power, the Government should bear in mind that such exercise under Section 17 of the Act, 1894 will deprive a land owner of his right in 10 relation to immovable property to file objections for the proposed acquisition by dispensing with the enquiry under Section 5A of the Act, 1894. However, in the present case, all the steps have been taken by different departments of the Government within a year. Moreover, in all the aforesaid cases, the fact was not that the land was sought to be acquired for road purpose. In the present case, the land is acquired for rind road and, thus, the factual context of the aforesaid cases cannot be applied in the case in hand.
11. I have also perused the judgments cited by the Learned Government Advocate. In the case of Arnold Rodricks (Supra), the Hon’ble Supreme Court has held the notification of acquisition as valid by observing that the notification was undoubtedly issued under Section 4 and the declaration was made under Section 6 invoking the urgency provision under Section 17 of the Act, 1894 for public purpose and the petitioners were not able to show that there was any colourable exercise of power by the authorities in acquiring the land in question. In the case of Navneet Ram Batra (Supra), the Hon’ble Supreme Court has held that since none of the raiyats raised any objection with regard to invoking of the urgency provision, particularly, Section 17 of the Act, 1894 and there has been no construction raised over the land sought to be acquired by the Government, the challenge put by the petitioners with regard to invoking of the urgency provision, cannot be said to be genuine.
12. Further, in the case of Chameli Singh (Supra), the Hon’ble Supreme Court has held that the opinion of urgency formed by the appropriate Government to take immediate possession is a subjective conclusion based on the material before it which is entitled to great weight unless it is vitiated by malafide or colourable exercise of power. It has also been held that very often the officials, due to apathy in implementation of the policy and programmes of the Government, 11 themselves adopt dilatory tactics to create cause for the owners of the land to challenge the validity or legality of the exercise of the power to defeat the urgency existing on the date of taking decision under Section 17(4) to dispense with Section 5-A enquiry. It has further been held that the delay by itself accelerates the urgency. “Larger the delay, greater be the urgency.” So long as the unhygienic conditions and deplorable housing needs of dalits, tribals and the poor are not solved or fulfilled, the urgency continues to subsist. So long as the exercise of the power is for public purpose, the individual right of an owner must yield place to the larger public purpose. In paragraph 15 of the said judgment, the Hon'ble Supreme Court has held as under:
“15. The question, therefore, is whether invocation of urgency clause under Section 17(4) dispensing with inquiry under Section 5-A is arbitrary or is unwarranted for providing housing construction for the poor. In Aflatoon v. Lt. Governor of Delhi (SCC at p. 290), a Constitution Bench of this Court had upheld the exercise of the power by the State under Section 17(4) dispensing with the inquiry under Section 5-A for the planned development of Delhi. In Pista Devi case this Court while considering the legality of the exercise of the power under Section 17(4) exercised by the State Government dispensing with the inquiry under Section 5-A for acquiring housing accommodation for planned development of Meerut, had held that providing housing accommodation is national urgency of which court should take judicial notice. The pre-notification and post-notification delay caused by the officer concerned does not create a cause to hold that there is no urgency. Housing conditions of Dalits all over the country continue to be miserable even till date and is a fact of which courts are bound to take judicial notice. The ratio of Deepak Pahwa case was followed. In that case a three-Judge Bench of this Court had upheld the notification issued under Section 17(4), even though lapse of time of 8 years had occurred due to inter-departmental discussions before receiving the notification. That itself was considered to be a ground to invoke urgency clause. It was further held that delay on the part of the lethargic officials to take further action in the matter of acquisition was not sufficient to nullify the urgency which existed at the time of the issuance of the notification and to hold that there was never any urgency. In Jage Ram v. State of Haryana this Court upheld the exercise of the power of urgency under Section 17(4) and had held that 12 the lethargy on the part of the officers at an early stage was not relevant to decide whether on the day of the notification there was urgency or not. Conclusion of the Government that there was urgency, though not conclusive, is entitled to create weight. In Deepak Pahwa case this Court had held that very often persons interested in the land proposed to be acquired may make representations to the authorities concerned against the proposed writ petition that is bound to result in multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often delay makes the problem more and more acute and increases urgency of the necessity for acquisition. In Rajasthan Housing Board v. Shri Kisha (SCC at p. 91), this Court had held that it must be remembered that the satisfaction under Section 17(4) is a subjective one and that so long as there is material upon which Government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority. In State of U.P. v. Keshav Prasad Singh (SCC at p. 590), this Court had held that the Government was entitled to exercise the power under Section 17(4) invoking urgency clause and to dispense with inquiry under Section 5-A when the urgency was noticed on the facts available on record. In Narayan Govind Gavate case a three-Judge Bench of this Court had held that Section 17(4) cannot be read in isolation from Section 4(1) and Section 5-A of the Act. Although 30 days from the notification under Section 4(1) are given for filing objections under Section 5-A, inquiry thereunder unduly gets prolonged. It is difficult to see why the summary inquiry could not be completed quite expeditiously. Nonetheless, this Court held the existence of prima facie public purpose such as the one present in those cases before the Court could not be successfully challenged at all by the objectors. It further held that it was open to the authority to take summary inquiry under Section 5-A and to complete inquiry very expeditiously. It was emphasised that: (SCC p. 148, para
38) “… The mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5-A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under Section 5-A which has to be considered.”
13. In the case of Ghanshyam Dass Kedia (Supra), the Hon’ble Apex Court has held that the exercise of power under Section 17(4) dispensing with the enquiry for acquisition of land for planned 13 development of Delhi cannot be said to be illegal on the ground that it would take long time for development. If the record discloses consideration by the Government on the matter of urgency, the High Court cannot sit as a Court of appeal over the subjective satisfaction of the Government. In the case of Anand Singh (Supra), the Hon’ble Apex Court even after finding that the State Government failed to justify dispensation of an enquiry under Section 5-A by invoking Section 17(4) of the Act, 1894, refrained from declaring the acquisition proceeding to be invalid and illegal, particularly, considering the fact that out of 400 land owners, more than 370 had already received compensation and the GDA had spent huge amount for development of the acquired land. In the case of Rajasthan Housing Board (Supra), the Hon’ble Apex Court has held that the land sought to be acquired is waste or arable land, has to be adjudged having regard to the general nature and condition of the land. It has been further held that the satisfaction under Section 17(4) of the Act, 1894 is a subjective one and so long as there is material upon which the Government could have formed the said satisfaction fairly, the Court would neither interfere nor examine the material as an appellate authority. In the case of Satendra Prasad Jain (Supra), the Hon'ble Supreme Court has held that when Section 17(1) is applied by reasons of urgency, the Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner loses the title of land to the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to the cases of acquisitions under Section 17 of the Act, 1894 because the lands have already vested in the Government and there is no provision in the Act, 1894 by which the land statutorily vested in the Government can revert to the owner.
14. In the case of Collector (LA) Vs. Andaman Timber 14 Industries (Supra), the Hon’ble Supreme Court has held as under:
“7. Ordinarily, the Government can take possession of the acquired land only after an award in respect thereof has been made under Section 11. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award must be made within two years from the date of the Section 6 declaration. Therefore, if an award is not made within two years, the land cannot be treated to have vested in the Government and its title continues with the owner. However, in cases where urgency clause enshrined in Section 17 is invoked and the competent authority takes possession of the land prior to the making of the award under Section 11, the owner is divested of his title to the land and the same vests in the Government. In the instant case, 80% of the estimated compensation for the land was not paid to the respondent Company although Section 17(3-A) stipulates that it should have been paid before possession of the said land was taken. However, this by itself is not sufficient for holding that the acquired land did not vest with the appellants.”
15. In the aforesaid judgment, it has been reiterated by the Hon’ble Supreme Court that in the cases where the urgency clause enshrined in Section 17 of the Act, 1894 is invoked and the competent authority takes possession of the land under Section 11 prior to making of the award, the owner is divested of his title to the land and the same vests in the Government. In the said case, 80% of the estimated compensation for the land was not paid to the respondent-Company, although Section 17(3A) stipulates that it should have been paid before possession of the said land was taken. However, it has been held that the said fact by itself is not sufficient for holding that the acquired land did not vest with the State.
16. In the case of Deepak Pahua (Supra), the Hon’ble Supreme Court has held that mere pre-notification delay would not render the invocation of the urgency provision void as very often, the delay increases the urgency of the necessity for acquisition. The case of Mahender Pal (Supra), has been cited by both the parties where the issue was that the land was acquired under the urgency provision for 15 the purpose of construction of road, which can be said to be similar to the purpose of acquisition in the present case.
17. In the case of Mahender Pal (Supra), the Hon'ble Supreme Court has held as under:
“3. On 14.11.2006, the government issued a notification under Section 4 read with Section 17(4) of the Act and on 15.11.2006 as also a declaration under Section 6 of the Act, for acquiring the land for public purpose, viz., for the development and utilization of land for outer ring road, green belt on both side, Pataudi Road to Jhajjar Road in the area of village Gokalgarh, District Rewari.
8. The purported public purpose for which the land is to be acquired is for laying down a road. We are not unmindful of the fact that the road connection is one of the purposes mentioned in Sub-section (2) of Section 17 of the Act in respect whereof Sub- section (4) thereof would apply. But the same would not mean that for the purpose of road connection irrespective of the nature of cases and/ or irrespective of the nature of the road to be constructed; Sub-section (4) of Section 17 of the Act could be invoked.
9. As an extraordinary power has been conferred upon the Appropriate Government in terms whereof the normal procedure laid down under Section 5A of the Act could be dispensed with, the High Court, in our opinion, should have entered into the merit of the matter. [See Mahadevappa Lachappa Kinagi and Others v. State of Karnataka and Others (2008) 12 SCC418”
18. In the aforesaid judgment, the Hon’ble Supreme Court has held that a land can be acquired for construction of road under section 17 of the Act, 1894. However, the power conferred under section 17 of the Act, 1894 is an extraordinary power given to the appropriate government and thus the High Court should have entered into the merit of the matter.
19. In the case of Nand Kishore Gupta (Supra), the Hon’ble Supreme Court has held as under:
“34. The High Court has refuted all these contentions by giving good reasons. We will not go into these individual cases once the High Court has decided not to entertain these plea and, in our opinion, correctly. After all, this was an acquisition 16 for building up a highway and the abovementioned Writ Petitions pertained to the land required for interchange. It is obvious that the alignment of the highway cannot be changed, as its design has been prepared after consideration of so many factors by the experts in building the road. Its direction or alignment, therefore, cannot be changed, with the result, the area which is required for interchange, also cannot be changed. This is a typical example of the individual having to sacrifice his land for the public good. There can be no dispute that this road would add to the betterment of the citizens of the East Yamuna area in particular and Uttar Pradesh in general. This is apart from the fact that the majority of the persons whose lands have been acquired, have either not objected to it or have accepted the compensation without any demur. It will, therefore, not be possible for us to go into these individual grievances, which have been rightly rejected by the High Court.
35. In fact, in Balbir Singh's case, it was pointed out that out of the 12,315 affected farmers in 133 villages over the total area of 1,638 hectares of the Expressway, 11387 have already received compensation and only 142 farmers have raised the issues. The High Court has rightly held that the private interest is always affected to some extent in such large schemes requiring the acquisition of land. The High Court has rightly held that a holistic view had to be taken to look for an all round development without forgetting about our heritage, culture and traditions. We also, therefore, would not entertain the objections, feebly raised before us, individually.”
20. In the aforesaid judgment, the Hon’ble Supreme Court did not interfere with the acquisition of land sought to be done under the emergent provision where the purpose for acquisition was construction of “Yamuna Expressway”. The Hon’ble Supreme Court has held that the alignment of the highway cannot be changed, as its design has been prepared after consideration of several factors by the experts in building the road. It has further been held that the road will add to the betterment of the citizens of the East Yamuna area in particular and Uttar Pradesh in general. In that case, the Hon’ble Supreme Court considered the situation that most of the persons had received compensation and only few of them raised the objection. Thus, it was observed that the High Court rightly held that the private 17 interest is always affected to some extent in such large schemes requiring the acquisition of land.
21. In the case of Meena Devi Jindal Medical Institute (Supra), the land was acquired for planned development of Delhi without specifying any purpose. The Hon'ble Supreme Court held that the there is no need to further specify any specific purpose. A purpose complementary to public purpose is also a public purpose.
22. Now, coming to the facts of the present case, it is an admitted fact that after re-organization of the State of Bihar w.e.f. 15 th November, 2000, Ranchi was declared as the capital of the newly crated State of Jharkhand. Ranchi, after becoming the capital city of Jharkhand, faced sudden increase in commercial activities as well as immigration from different places making the existing traffic condition of the city miserable, which in the opinion of the State Government, required immediate attention and, therefore, it was conceived and planned that a Ring Road in the outskirts of the city of Ranchi should be constructed without any delay to ease out the choked traffic condition in the city. In my considered view, the ratio laid down by the Hon’ble Supreme Court in the case of Chameli Singh (Supra) will apply to the fact situation of the present case where the purpose for acquisition is construction of Ring Road and in case of delay in construction of the same, the situation would become worse and more emergent. In fact, the delay by itself accelerates the urgency. On perusal of the supplementary counter affidavit dated 22.11.2017 filed by the State-respondents, it transpires that in the year 2009, the Department of Road Construction, Government of Jharkhand made the requisition for acquiring the land in question on urgent basis and, thereafter, a notification under Section 4 of the Act, 1894 was issued on 12.01.2010 and the same was published in the Gazette dated 25.01.2010. Thereafter, the Department of Revenue and Land 18 Reforms, Government of Jharkhand vide letter No. 537 dated 21.07.2010 communicated the Deputy Commissioner, Ranchi for taking possession of the said land and empowered him to make payment of 80% of the compensation to the land holders within 15 days and, accordingly, payment of compensation has been made to almost all the land holders, except the petitioner-school, as it refused to receive the compensation.
23. In the case of Satya Narayan @ Satya Narayan Prasad Vs. State of Bihar, through the Chief Secretary, Bihar, Patna reported in 2011(4) BBCJ494 wherein the challenge was made to the acquisition for construction of approach road under the emergent provision, a Division Bench of the Patna High Court has held as under:
“6. We have heard the learned counsel for the parties and perused the materials on record. The Chiraiyatand over-bridge was expanded to ease the traffic bottlenecks in the town of Patna. It was equally essential to acquire land in adjacent locality including mohalla Jamal Road for construction of an approach road to connect flow of traffic to the newly constructed over bridge. In order to tide over the traffic bottleneck, a Division Bench of this Court way back on 25.08.2004, in C.W.J.C. No. 2401 of 2003, gave the following direction: “Admittedly, the construction of the Chiraitand over-bridge is in full swing. It is also admitted position that the land has been acquired under the provisions of the Land Acquisition Act. In that view of the matter, no direction can be issued not to acquire the land or take possession. On the other hand, the authorities are hereby directed to take possession of all the lands already acquired or acquire the land immediately even taking recourse to the emergency provision in case any land has been acquired for the construction of the aforesaid over bridge.”
7. It is the case of the respondent State that in view of Public interest and in view of direction of this Court, the Government decided to acquire adjoining land including appellants’ land to provide approach road to Chiraiyatand over-bridge under emergent provisions of section 17(1) and 17(4) of the Act. We find that necessary notifications under section 4 and declaration under Section 6 of the Act have been duly issued. In terms of Section 17(1) of the Act, notice under Section 9 of the Act was issued on 03.12.2007, calling upon the appellants to accept 19 80% of the compensation amount. The learned Single Judge has clearly stated in his order that all attempts to serve notice to the petitioners were frustrated, as they refused to receive the same. The learned Single Judge noticed that process server on the reverse of the notice wrote that the petitioners have refused to accept the same. Learned Single Judge has also observed that the petitioners also negated the attempts of the authorities to serve compensation amount in the court. We find no reasons not to accept the findings of the learned Single Judge that steps were taken under Section 9(1), in terms of Section 17(1) of the Act, to pay 80% compensation to the appellants. In course of hearing, we too made offer to the appellants to receive the compensation amount in court itself, which too was declined. We indeed record our extreme sense of displeasure that in spite of repeated reminders to the appellants that the issue involved in this case were exactly similar to the issues concluded by the Division Bench in case of own relatives of the appellants in parallel Land Acquisition proceeding no.15 of 2007-08 in case of Bishnu Deo Narayan Vs. The State of Bihar and Others (supra), learned counsel for the appellants proceeded with the argument, which were advanced in the earlier case and rejected. It is on account of such unscrupulous litigations that the court is sagging under the weight of arrears. Indeed just the same counsel for the parties had appeared in the previous proceeding. The over-bridge is now complete and has become functional quite a few years ago. We would not hesitate to state that all these years the traffic congestion underneath the bridge which necessitated expansion and widening of the same has been obstructed by the luxury of litigations.
8. In the backdrop of the aforesaid discussions, we do not find any merit in the contention of the learned counsel for the appellants that requirement of notice and tender of compensation amount in terms of Section 17(1) of the Act was not followed.”
24. In the aforesaid case, the Division Bench of the Patna High Court did not intervene in the matter in the factual context that the land was acquired invoking emergent provision for the purpose of construction of approach road to “Chiraiyatand over bridge” after taking note of the fact that the necessary notifications under Section 4 and declaration under Section 6 of the Act, 1894 were duly issued as also the notice under Section 9 of the Act, 1894 was issued on 03.12.2007, calling upon the appellants to accept 80% of the compensation amount. 20 25. In the present case also, the notification under Section 4 and declaration under Section 6 of the Act, 1894 were also issued and thereafter the petitioners were served notices to receive compensation in lieu of acquisition and, thus, no procedural illegality has been committed by the respondents. Moreover, the land in question pertains to the part of the Ring Road under Phase-7, which is the last phase. The construction of the Ring Road in the four phases have almost been completed and two phases are to be constructed by the National Highways Authority of India, which is under progress. The total area of land acquired for the purpose of construction of the Ring Road is 1067.51 acres whereas, the impugned notification is for acquiring 9.83 acres of land. In course of argument, the learned Government Advocate has put much emphasis on the fact that on verification of the land revenue documents of 4.47 acres of land falling within the boundary wall of the school, the petitioner-school has been found entitled to get compensation only for 0.16 acre of land and rest belongs to other raiyats. The learned counsel for the petitioners has opposed the said submission by contending that the respondents have no business to raise the said issue in the present case and it is the jurisdiction of the appropriate Civil Court to deal with the said issue. Be that as it may. The status of the land has been annexed as Annexure-A to the counter affidavit. The total area of the school is 172.47 acres. The constructed area of the school is 57.50 acres. The notification dated 12.01.2010 (gazetted on 25.01.2010) was issued under Section 4 with respect to Mouza-Neori for acquisition of 9.83 acres of land whereby, the urgency provision of Section 17(4) was also invoked. All the other raiyats, except the petitioners, have received the compensation amount finally. The Khatian of the concerned village has been annexed as Annexure-C to the supplementary counter affidavit filed on behalf of the respondent Nos. 4 & 5. On perusal of 21 the same, it would appear that in the revenue record, the nature of the land has been shown as “Parti Kadim” and “Don”, which are different types of waste land. Although, the petitioners have submitted that in the revisional survey records of right, the land has been recorded as waste land, however, in the present context, the said land cannot be said to be “waste or arable”, as the same is being used by the petitioners for educational purposes. The said submission made by the learned counsel for the petitioners is not acceptable, as the petitioners have failed to bring on record any material to suggest that any institutional structure is existing on the said acquired land. Thus, the petitioners cannot be said to have been seriously prejudiced by the acquisition of the land in question by invoking the urgency provision, as no important installation/building of the petitioners is existing on the land acquired by the Government. The functioning of the school would also not get hampered in any manner by acquisition of the land in question. This Court is also not unmindful of the fact that the Government has already spent huge amount in construction of the rest parts/phases of the Ring Road and has paid considerable compensation to several raiyats/land owners. Moreover, some parts of the Ring Road have already been made operational. Thus, it would not be appropriate to interfere with the acquisition proceeding at the instance of the petitioners. The submission made by the learned counsel for the petitioners that other vacant land are available around the premises of the school may be acquired to cause less inconvenience to the school, also cannot be accepted. The respondents have taken specific stand that before acquisition, the technical survey was made and, thereafter, the centre line was fixed for construction of the Ring Road and any deviation in the same is not possible at this stage. Moreover, the same has been prepared by the technical experts having special qualification in dealing with the 22 matter. It is not feasible for the Government to satisfy each and every person during an acquisition proceeding as the acquisition certainly causes some inconvenience to the individuals whose land are to be acquired, but at the same time, the individual inconvenience has to give way for the public cause in absence of which, no bonafide development work can take place. The facts of the present case are similar to the case of Nand Kishore Gupta (Supra), as the purpose for acquisition in this case is also road construction and almost all the raiyats have already received compensation, except the petitioner- school whose prime purpose of imparting education to its students is not going to be hampered by the present acquisition. The Hon’ble Supreme Court in the case of Arnold Rodricks (Supra) and Chameli Singh (Supra) has held that the opinion of urgency formed by the appropriate Government to take immediate possession is a subjective conclusion based on the material before it and it is entitled to great weight unless it is vitiated by mala fide or colourable exercise of power. In view of the aforesaid facts, it cannot be said that the decision of the Government of Jharkhand in making acquisition of land for construction of Ring Road by invoking urgency provision under Section 17 of the Act, 1894 suffers from any malafide or colourable exercise of power.
26. In view of the aforesaid facts and circumstances, I see no reason to interfere with the impugned notifications/letters.
27. The present writ petition being devoid of merit is, accordingly, dismissed. (RAJESH SHANKAR, J) High Court of Jharkhand, Ranchi Dated 15.12.2017 Satish/N.A.F.R