P.D. Dinakaran, C.J.
1. The unsuccessful writ petitioner-appellant has preferred the above appeal against the order of the learned single Judge dated 22.7.2008 passed in Writ petition No. 12556/2007 disposing of the writ petition, wherein the appellant-writ petitioner had sought to quash the preliminary notification dated 3.10.2006 issued under Section 17 read with Section 4(1) of the Land Acquisition Act, 1894 (Act No. 17) as amended by Karnataka Act 33/1991 (for short, the Act) issued by the 2nd Respondent-Deputy Commissioner and declaration under Section 17(1) read with Section 6 of the Land Acquisition Act, 1894 issued by Respondent No. 1, proposing to acquire 6 cents in Sy. No. 53/1A-1 belonging to the appellant for the public purpose of putting up a wet well for pumping the drainage in Mangalore, Dakshina Kannada district, under ADB scheme to be implemented by the 4th respondent.
2.1 The case of the appellant is that she is the owner and in possession of the property situate in Kodialbail village, Mangalore comprised in Sy. No. 53/1A1 measuring 40 cents and she had purchased the same in the year 1987. Appellant having applied for approval of the plan to the 3rd respondent-Corporation, obtained license for the construction of residential house on 18.7.2006 and thereafter she started constructing the house. In the meanwhile, the 2nd respondent issued a paper publication dated 3.10.2006 under Section 4(1) read with Section 17 of the Act proposing to acquire portion of the land belonging to the appellant for the public purpose stated above.
2.2 Immediately thereafter, the appellant pointed out to the 3rd respondent that the land which is sought to be acquired is in the center of the residential layout and that just at about 200 mts. government land is available which is more suitable for construction of pump house. According to the appellant, in fact, on the representation made by her, the Mayor of the Corporation has also sent a proposal for acquiring the government land in Sy. No. 301 instead of the appellant's land. It is also stated that the residents of the locality have also represented to the 2nd respondent not to acquire the impugned land as the entire layout is a residential area and if the pump house is constructed it will affect the health of the residents. However, without considering any of the representations, the respondents have issued the impugned notifications proposing to acquire the land in question. Aggrieved by the said notifications, the appellant approached this Court in Writ petition No. 12556/2007.
3. The learned single Judge after hearing the learned Counsel for the parties, by order dated 22.7.2008, disposed of the writ petition and the operative portion of the order reads thus:
Of course while establishing the wet well, the respondent authority have to take care to avoid inconvenience as far as possible to the petitioner's residential building that is being put up. The wet well has to be constructed in such a way so as to not to cause any inconvenience in putting up the house by the petitioner. In that view of the matter, I find no reason to interfere with the impugned action of the respondent authority.
4.1 Sri Jayakumar S Patil, learned senior counsel for the appellant contends that though the scheme was commenced in the year 2003, notifications to acquire the land was issued in 2006 invoking emergency clause under Section 4(1) read with Section 17 of the Act; that there was no impediment for the respondents-authorities to follow the formalities of Section 4(2)(6) of the Act; that there is an alternative government land available at a distance of 200 meters and that could have been utilised for the project; that the location of the wet well would pose health hazard to the residents of the area and is not suitable and detrimental to the interest of the appellant and other residents of the locality, which has not been duly considered by the respondents; that the appellant was not given opportunity to file objections and to participate in the enquiry as provided under Section 5A of the Act and that the authorities have not called for the tenders for construction of wet well.
4.2 Shri Jayakumar S Patil, learned senior Counsel for the appellant, further contends that since declaration was not published immediately, the exercise of power under Section 17(1) dispensing with the enquiry under Section 5-A is bad in law as it indicates that there was no real urgency and placed reliance on the decisions of the Apex Court in the following cases in support of the contention that there existed no urgency for the authorities to invoke emergency clause for acquiring the said land:
(i) OM Prakash and Anr. v. State of U.P. : [1998]3SCR643 :
(ii) Swadeshi Cotton Mills v. Union of India and Ors. : [1981]2SCR533 :
(iii) Narayan Govind Gavate v. State of Maharastra and Ors. : [1977]1SCR763 .
5. On the contrary, the learned Government Advocate justifying the action of the respondents in invoking emergency clause under Section 17 of the Act, contends that in fact a notification published on 3.10.2006 was gazetted on 12.10.2006 and the appellant-petitioner had filed a writ petition before this Court in W.P. No. 17504/2006 to quash the preliminary notification which came to be dismissed on 5.6.2007. Thereafter, the petitioner has preferred the present writ petition challenging the acquisition proceedings. It is further contended by the learned Government Advocate that as per the order of the Government, the Asian Development Bank Scheme has been implemented for Mangalore city and land is acquired for various purposes under the scheme invoking emergency clause under the Act.
6. The learned Counsel for the contesting respondent No. 4-implementing authority contended that the project was started in 2003 and a loan of Rs. 1,100 crores has been raised to implement the project in the entire coastal zone and Rs. 350 crores is earmarked for Mangalore city alone and that since the wet well forms part of the entire project, there was no need to call for the tenders separately. It is stated that the alternate government land proposed by the appellant is not suitable and feasible for the project as it is at a higher level. The learned Counsel also further submits that now the permission for construction of wet well has been cancelled by the Municipality and the work has been stopped. The learned Counsel for the 4th respondent, placing reliance on the decision of the Apex court in the case of A.P. Sareen and Ors. v. State of U.P : [1997]1SCR210 , contends that it is well settled legal position that urgency can be said to exist when the land proposed to be acquired is needed for planned development of city.
7. We have given our careful consideration to the submissions of all the parties. ri/K
8. In the facts and circumstances of the case, the following three issues arise for our consideration:
(i) Whether the availability of alternative Government land would be a ground to quash the impugned acquisition proceedings?
(ii) Whether the impugned acquisition proceedings is bad for having dispensed with the enquiry contemplated under Section 5A of the Act and for having invoked the urgency clause?
(iii) Whether the delay in publishing the declaration immediately after dispensing with the enquiry under Section 5A of the Act is bad in law?
Issue No. (i):
9. One of the grounds raised by the learned senior counsel for the appellant is that there is an alternate government land available at a distance of 200 mts and that could have been utilised for the project and that the location of the wet well in the present place would pose health hazard to the residents of the area and is not suitable and detrimental to the interest of the appellant as well as other residents of the locality and the said fact has not been duly considered by the authorities-respondents and that the respondents have acted arbitrarily and unreasonably.
9.1 Per contra, it is contended by the learned Counsel for the respondents that the alternate government land proposed by the appellant is not suitable and feasible for the project as it is at a higher level. Further, it is stated that based on the report of the Engineers and Experts in the field and after subjective satisfaction, the authorities have selected the place for the project. As such, it cannot be stated that the authorities have acted arbitrarily.
9.2 The State being the eminent domain, is alone empowered to take decision regarding selection of land required for the public purpose. The Supreme Court in the case of Sharda Devi v. State of Bihar and Anr. : [2003]1SCR73 , has clearly held as under:.The power to acquire by the State the land owned by its subjects hails from the right of eminent domain vesting in the State which is essentially an attribute of sovereign power of the State. So long as the public purpose subsists, the exercise of the power by the State to acquire the land of its subjects without regard to the wishes or willingness of the owner or person interested in the land cannot be questioned....
9.3 From the records, it is clear that the alternate government land proposed by the appellant was also considered for the project; but based on the report of the Engineers and Experts in the field and after subjective satisfaction, it was found that the said land was not suitable and feasible for the project as it is at a higher level. Therefore, it cannot be stated that the authorities have acted arbitrarily and unreasonably. That apart, the State being the eminent domain, is alone empowered to take decision regarding selection of land required for the public purpose. In that view of the matter, we answer Issue No. (i) in the negative and against the appellant.
Issue No. (ii)
10. The notification under Section 4(1) of the Act was published on 3.10.2006 and the Government had in exercise of the power under Section 17(1) of the Act dispensed with enquiry under Section 5-A of the Act. It is a well-settled legal position that urgency can be said to exist when land proposed to be acquired is needed for planned development of the city/town etc.
10.1 It is trite law that a statute conferring power on the Government to compulsory acquire lands shall be strictly construed. We have already seen that the compliance of three modes of publication of the notification contemplated under Section 4(1) of the Act is mandatory in terms as observed above. Similarly, enquiry contemplated under Section 5A before issuing a declaration under Section 6 of the Act, to enable the land owners to submit their objections to the acquisition is also mandatory. Any dispensation of such enquiry should strictly satisfy the requirement contemplated under Section 17 of the Act, because the Rule of Law and the principles of natural justice have had its stamp in Section 5A of the Act.
10.2 With regard to the power of the said invoking urgency provision and dispensing with the enquiry contemplated under Section 5A of the Act and; Whether the impugned acquisition proceedings is bad for having dispensed with the enquiry contemplated under Section 5A of the Act and for having invoked the urgency clause, a Division Bench of the Madras High Court of which, one of us (P.D. Dinakaran J) is a party, in the case of Ramgopal Estates Private Limited v. The State of Tamil Nadu and Ors. Writ petition Nos. 17195 & 17196/1998 disposed of on 2.3.2007 reported in (2007) 2 CTC 369- held as under:
25.3 The power to dispense with enquiry under Section 5A by the Government is traceable to Section 17 of the Act which provides a special power to the Government in the case of urgency and emergency. Section 17(1) empowers the appropriate Government to direct the Collector to take possession of any land needed for public purpose though no award has been made under Section 9 of the Act. Section 17(2) governs such emergency situation owing to any sudden change in channel of any navigable river or other unforeseen emergency mentioned thereunder. In either case referred to above, by invoking Section 17(4) of the Act, the appropriate Government may direct 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 publication of the notification under Section 4(1) of the Act. For invoking Section 17 of the Act, the appropriate Government should decide that there is urgency of emergency to invoke Sections 17(1) and 17(2). If the Government satisfies so and issues such directions, then the enquiry under Section 5A can be dispensed with and a declaration may be made under Section 6 after the publication of 4(1) notification and possession can be taken.
25.4 A careful perusal of these provisions, of course, which is an exception to the normal mode of acquisition contemplated under the Act, shows a mere existence of urgency under Section 17(1) or' unforeseen emergency under Section 17(2), though is a condition precedent for invoking Section 17(A) of the Act, that by itself, is not sufficient to direct the dispensation of enquiry under Section 5A, unless or otherwise, the appropriate Government, in its opinion, form along with the existence of urgency and unforeseen emergency, there is a need for dispensing enquiry under Section 5A, which means, the appropriate Government must apply its mind before dispensing with the enquiry under Section 5A of the Act. In other words mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) will not by itself, be sufficient for dispensing with the enquiry under Section 5A of the Act. 25.5.1 This proposition leads to a situation, to what extent the Court can interfere when the State invokes either urgency clause or unforeseen emergency clause, viz., Sections 17(1) and 17(2) respectively and dispenses with the enquiry under Section 5A of the Act? It is answered in a catena of decisions which are referred to hereunder.
25.5.2. Application of mind by the Government with regard to emergency should be looked into the files. However, the post decision delay is not a ground to question the land acquisition proceedings, State of U.P. v. Smt. Pista Devi and Ors. AIR 1986 SC 2025.
25.5.3. Very often the officials, due to apathy in implementation of the policy and programmes of the Government, themselves adopt dilatory tactics to create cause for the owner of the land to challenge the validity or legality of the exercise of the power to defeat the urgency existing on the date of decision revision under Section 17(4) of die Act to dispense with enquiry under Section 5A of the Act, Chameli Singh and Ors. v. State of U.P. and Anr. : AIR1996SC1051 , therefore, the lethargy on the part of the officials for pre or post notification delay in our considered opinion would not render the exercise of the power to invoke urgency clause invalid on that account.
25.5.4. The opinion of urgency formed by the appropriate Government to take immediate possession invoking urgency clause Section 17(1) read with Section 17(A) of the Act and dispensing with enquiry under Section 5A of the Act, is a subjective conclusion based on the material before it and it is entitled to great weight unless it is vitiated by mala fides or colourable exercise of power. vide. Chameli Singh and Ors. v. State of U.P. 1996 (2) SCC 549.
25.5.5. The Apex Court in Mohan Singh v. International Airport Authority of India, 1997(9) SCC 132, where a question arose for consideration whether the compliance with the publication of notification in three steps required under Section 4(1) is mandatory while exercising the power of eminent domain under Section 4(1), when the appropriate Government exercising the power under Section 17(4)dispensing with the enquiry under Section 5A, it is held as follows:
27. In the light of the above law, we have no hesitation to hold that though compliance with publication of the three steps required under Section 4(1) is mandatory while exercising the power of eminent domain under Section 4(1), when the appropriate Government exercises the power under Sub-section (4) of Section 17 dispensing with the enquiry under Section 5-A and directs the Collector to take possession of the land before making the award as the lands are needed urgently either under Sub-section (1) or (2)thereof, it is not mandatory to publish the notification under Section 4(1) in the newspapers and giving of notice of the substance thereof in the locality; the last of the dates of publication should not be the date for the purpose exercising the power under Section 17(4). This interpretation of ours would subserve the public purpose and suppress mischief of non-compliance and seeks to elongate the public purpose, namely, taking immediate possession of the land needed for the public purpose, envisaged in the notification.
25.5.6. The question of urgency of an acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction of an objective appraisal of facts, vide First Land Acquisition Collector AND Ors. v. Nirodhi Prakashu Gangoli and Anr. : [2002]2SCR326 .
25.5.7. It is now settled legal position that decision on urgency is an administrative decision and is a matter of subjective satisfaction of the appropriate Government on the basis of the material available on record. Therefore, there was no need to pass any reasoned order to reach the conclusion that there is urgency so as to dispense with the enquiry under Section 5-A in exercise of power under Section 17(4)1, vide Union of India v. Praveen Gupta : AIR1997SC170 .
25.5.8. Whether in a given situation there existed grave urgency or not is left to the discretion and decision of the concerned authorities. It is true the Apex Court in Union of India v. Krishna Lal Arneja (2002) 8 SCC 453, interpreting the power conferred under Section 17(4) for invoking the urgency clause under Section 17(1) and dispensing with the enquiry contemplated under Section 5A of the Act held as follows:
Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The authority may have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of public purpose, real urgency that the situation demands and the time factor i.e., whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizens property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be substitute or support for the laxity, lethargy or lack of care on the part of the State administration.
10.3 The learned senior counsel, of course, placing reliance on Om Prakash's case contended that there is no real urgency in the impugned acquisition. But, on facts, in Om Prakash's case the urgency clause was invoked on possibility of encroachers usurping the lands proposed to be acquired, which is not the reason in the instant case for invoking the urgency clause. Hence, reliance placed by the learned senior counsel for the appellant on Om Prakash's case is misconceived. On the other hand, in the instant case, the land proposed to be acquired is to implement the project sponsored by the World Bank Scheme for planned development of the cities within the time frame for which huge amount is said to have been released. According to the learned Counsel for the 4th respondent, a loan of Rs. 1,100 crores has been raised to implement the project in the entire coastal zone and Rs. 350 crores is earmarked for Mangalore city alone. If any delay takes place in acquisition proceedings, the proposed project would only remain as a mirage. Therefore, if the State could not invoke the urgency clause under such circumstances, the very object of the emergency provision provided under the Statute would be defeated. Therefore, we do not see arbitrariness or unreasonableness in invoking the emergency clause as per Section 17(1) of the Act and dispensation of enquiry under Section 5A by exercising the power conferred under Section 17(4) of the. Thus we answer Issue No. (ii) in the negative.
Issue No. (iii):
11. Now, this leads to the supplemental question whether the delay in passing the declaration under Section 17(1) after dispensation with Section 5A enquiry by invoking Section 17(4) of the Act, is fatal to the impugned acquisition proceedings?
11.1 The Apex Court in the case of State of U.P v. Smt. Pista Devi and Ors. : [1986]3SCR743 held that the post notification of delay by itself is not sufficient to render the decision of the Government under Section 17(1) and 17(4) at the time of issue of notification under Section 4(1) of the Act was either improper or illegal.
11.2 In this regard, it is apt to extract the following passage of Justice Chinnappa Reddy, speaking for the High Court of A.P in the case of Kasireddy Papaiah (Died) v. Government of A.P : AIR1975AP269 :
One can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in the discharge of their duties, unless, of course, it can be established that the acquisition itself is made with an oblique motive. The urgent pressures of history are not to be undone by the inaction of the bureaucracy.
The above observation made in the above decision of Justice Chinnappa Reddy, is quoted with approval of the Apex Court in Deepak Pahwa v. Lt. Governor of Delhi : [1985]1SCR588 and in State of U.P v. Pista Devi, referred supra.
11.3 Again, the Supreme Court in A.P. Sareen v. State of U.P : [1997]1SCR210 held that the delay in passing the post declaration by itself does not affect the urgency as the need for urgency is dissipated by the bureaucratic inadvertance and merely by such inadvertance the urgency does not ceases. The urgency continues as long as the scheme is not initiated, action taken and the process completed.
11.4 Therefore, we answer Issue No. (iii) also in the negative.
12. Hence, all the contentions raised on behalf of the appellant fail and the appeal stands dismissed.