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Kashappa Shivappa Vs. Chief Secretary to the Govt. of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 840 of 1961
Judge
Reported inAIR1963Mys318; (1965)1MysLJ275
ActsLand Acquisition Act, 1894 - Sections 4, 5A, 17(1), 17(2) and 17(4); Constitution of India - Article 226
AppellantKashappa Shivappa
RespondentChief Secretary to the Govt. of Mysore and ors.
Appellant AdvocateH.B. Datar ; and V.S. Malimath, Advs.
Respondent AdvocateD.M. Chandrasekhar, H.C. Govt. Pleader, for Respondents 1-2 and V.H. Rou, Adv. for Respondent 3
Excerpt:
- industrial disputes act, 1947.sections 10(4a) & 33(2)(b): [subhash b. adi,j] raising of dispute under section 10(4a) pending application of management under section 33(2)(b) - management withdrawing application - tribunal passing of order under section 10(4a) - effect - held, the tribunal ought to have considered both the matters simultaneously and deferred the passing of the order under section 10(4a) till the adjudication of an application under section 33(2)(b) of the act. impugned order of tribunal was quashed and matter remitted to tribunal for fresh disposal with liberty for the management to seek recall of order permitting withdrawal of application under section 33 (2)(b). - (5) it is not disputed that the land belonging to the petitioner was when the impugned direction was.....somnath iyer, j.1. resurvey number 456/ib within the municipality of gadag-betageri is a land belonging to the petitioner. since that land was one of the lands adjacent to the premises of the agricultural produce market committee of gadag-betageri established under the provisions of the bombay agricultural produce market committees' act and since, according to that committee it was necessary to extend the premises of the committee for its activities, it made an application to the concerned 'authorities on january 22, 1960, for the acquisition of the petitioner's land along with the lands of others. this application was followed up by a further application made by the committee on february 11, 1960 for a direction under section 17(4) of the land acquisition act.2. on december 13, 1960, a.....
Judgment:

Somnath Iyer, J.

1. Resurvey number 456/IB within the Municipality of Gadag-Betageri is a land belonging to the petitioner. Since that land was one of the lands adjacent to the premises of the Agricultural Produce Market Committee of Gadag-Betageri established under the provisions of the Bombay Agricultural Produce Market Committees' Act and since, according to that Committee it was necessary to extend the premises of the Committee for its activities, it made an application to the concerned 'authorities on January 22, 1960, for the acquisition of the petitioner's land along with the lands of others. This application was followed up by a further application made by the Committee on February 11, 1960 for a direction under Section 17(4) of the Land Acquisition Act.

2. On December 13, 1960, a composite notification was issued by the Government under the provisions of Section 4 and Section 17(4) of the Land Acquisition Act. Under the former part of this notification it was announced that the petitioner's land along with the others would be acquired for a public purpose, namely, for the use of the Committee and by the other part of this notification a direction was issued that the provisions of Section 5A shall not apply to the acquisition, since the acquisition was urgently necessary.

3. On April 10, 1961, a notification under Section 6 incorporating a declaration that the land was needed for a public purpose was made. On July 31, 1961, this writ petition was presented to this Court in which the petitioner complains that the acquisition proceedings are not in accordance with law and the main challenge made to the acquisition is that the direction made under Section 17(4) dispensing with adherence to the provisions of Section 5A was not within the competence of the Government.

4. The notification issued on December 13, 1960 which is the subject-matter of attack in this writ petition reads:

'No. ROH 95 LAP 60, dated 13th December 1960. Whereas it appears to the Government of Mysore that the lands specified in the schedule hereto are needed for a public purpose, viz., for Development of Agricultural Produce Market Yard at Gadag.

It is hereby notified that under provisions of Section 4 of the Land Acquisition Act, 1894 (1 of 1894), that the said lands are needed for the purpose specified above.

All persons interested in the said lands are hereby warned not to obstruct or interfere with any surveyors or other persons employed upon the said lands for the purpose of said acquisition. Any contract for the disposal of the said lands by sale, lease, mortgage, assignment, exchange or otherwise or any outlay or improvement made therein, without the sanction of the Deputy Commissioner, after the date of this Notification, will, under Section 24 (seventhly) of the said Act, be disregarded by the officer assessing the compensation for such parts of the said lands as may be finally acquired.

The Government of Mysore is further pleased to direct under Sub-section (4) of Section 17 of the said Act, as the acquisition of the said lands are urgently necessary, the provisions of Section 5-A of the said Act shall not apply in respect of the Said lands.

SCHEDULEDistrict, S. No. Approximate Public purpose forTaluq and mate area which the land isvillage in of the land. likely to be acquired,which the3 and issituated.A. G. As.... ... ... ...Gadag- 458-1 6-20-0 For DevelopmentBetgeri. of Gadag AgriculturalProduce Market Yard.'By Order and in the name of theGovernor of Mysore,M. Sesbagiri Rao,Under Secretary to Government.Revenue Department.'

The first submission in support of this writ petition was that since this notification does not indicate that the Government had formed an opinion in their mind before they issued the direction by which they dispensed with the adherence to the provisions of Section 5A, that the case was one of urgency and therefore fell within Sub-section (1) of Section 17, that direction made under the Sub-section (4) of Section 17 that the provisions of Section 5A shall not apply, was not within their competence. Section 17(4) of the Act makes it clear that the power to dispense with compliance with Section 5A is exercisable only in the case of a land to which, in the opinion of the Government, the provisions of Sub-section (1) or Sub-section (2) are applicable. Sub-section (1) refers to a case of urgency and it authorises the Deputy Commissioner, if so directed by the Government, in a case of urgency, to take possession of a waste or arable land needed for public purposes or for a Company though no award has been made.

It is not necessary to refer to the provisions of Sub-section (2) since it is not the case of any one that the provisions of that sub-section have any relevance to the case before us. What is however clear is that the provisions of Sub-section (4) of Section 17 would be applicable only to the acquisition of a land to which the provisions of Subsection (1) or Sub-section (2) are applicable. If the power conferred by that sub-section is proposed to be exercised by the Government in the case of any acquisition, they can do so only if they form an opinion that the land is one to which the provisions of either Sub-section (1) or Sub-section (2) are applicable. That being so, it was possible for the Government in this case to dispense with compliance with Section 5A as they did, if they came to the conclusion that the case was one of urgency and that the land proposed to be acquired was a waste or arable land. This is, in my opinion, what We should say since that power was not exercised in this case on the basis that the provisions of Subsection (2) were applicable to the land.

(5) It is not disputed that the land belonging to the petitioner was when the impugned direction was given by the Government under Section 17(4) an arable land and that therefore the land was one to which the provisions of Sub-section (1) of Section 17 were to that extent clearly applicable. It was not contended before us that there were any buildings on the petitioner's land or that there was any reason why any one should think that the provisions of Sub-section (1) of Section 17 were in that regard not applicable to it. But what is contended before us is that although the land was an arable land and therefore fell within Sub-section (1) of Section 17, since the case was not one of urgency and since there is no indication of the Government having formed the opinion in their mind that the case was one of urgency, it was impossible for the Government to issue any direction under sub-section (4) of Section 17, dispensing with compliance with Section 5-A.

6. The first question therefore would be whether it can be said that the notification issued by the Government on December 13, 1960, contains no indication of the formation of the opinion in the mind of the Government that the case was one of urgency. When the notification is looked into for that purpose it is found that what that notification says is that the Government made a direction under Sub-section (4) of Section 17 since the acquisition of the lands was 'urgently necessary'. The words used in the fourth paragraph of the notification are, 'as the acquisition of the said lands are urgently necessary, the provisions of Section 5-A of the said Act shall hot apply in respect of the said lands'. Although it is stated in this paragraph of the notification by the Government that the acquisition of the lands was urgently necessary, can it be contended that that statement was made by the Government without the application of their mind to the question whether the case was or was not one of urgency.

I found great difficulty in accepting the argument advanced on behalf of the petitioner that notwithstanding the statement contained in this paragraph of the notification to the effect that the acquisition was urgently necessary, we should, nevertheless come to the conclusion that no opinion was formed in the mind of the Government when they issued this notification as to the urgency or otherwise of the case within the meaning of that expression occurring in Section 17(1) of the Act. If an authority functioning under a statute is authorised to exercise power on its being satisfied that the case is one of urgency and that authority in justification of the exercise of that power says that it exercised that power because something to be done under that statute was urgently necessary, I fail to understand what more is necessary to be established in proof of the formation of the opinion in the mind of that functionary that the case was one of urgency. It is thus clear that had not the Government satisfied themselves that the case was one of urgency, they would not have stated that what had to be done was urgently necessary.

7. But Mr. Datar asked our attention to a decision of their Lordships of the High Court of Bombay in Shri Navnitlal v. State of Bombay, : AIR1961Bom89 in which, according to him, notwithstanding a notification having been couched in exactly the same way in which the impugned notification in this case is couched, their Lordships ex-

pressed the view that that notification did not indicate that the Government had formed an opinion in their mind of the urgency of the case. It is true, as Mr. Datar has told us that the notification in Naynitlal's case, : AIR1961Bom89 was almost a replica of the notification in the case before us. The relevant part of that notification reads:

'The Commissioner, Ahmedabad Division, is further pleased to direct under Sub-section (4) of Section 17 of the said Act, that as the acquisition of the said lands is urgently necessary the provisions of Section 5-A of the said Act shall not apply in respect of the said lands'.

On Page 94 of the Report, their Lordships elucidated the principle that power under Section 17(4) could be exercised by the Government only when they form an opinion that conditions the existence of which authorised the exercise of that _power existed such as those enumerated in Sub-section (1) or Sub-section (2) of Section 17. That there was a formation of such opinion must be demonstrated either in the direction made under Section 17(4) or by some other material if it is permissible to look into such other material for that purpose was also what their Lordships explained. If 1 may say so, it is impossible to say that the view expressed by their Lordships that power under Section 17(4) can be exercised only in cases in which the Government form an opinion that the land is one to which the provisions of Sub-section (1) or Sub-section (2) of Section 17 are applicable, can be open to very little criticism.

8. But I find, notwithstanding the matter having been left open by their Lordships of the High Court of Bombay, no difficulty in thinking that the establishment of the formation of the opinion created in the mind of the Government as to the applicability of Sub-section (1) or Sub-section (2) of Section 17 to the land, can be made not only by what is contained in the direction made under Section 17(4) but also by other processes such as by the scrutiny of the proceedings culminating in the direction made under Section 17(4), a perusal of which would, in my opinion, be perfectly permissible.

9. However that may be, Mr. Datar is, in my opinion, not right in submitting to us that their Lordships of the High Court of Bombay thought that the direction made in the case which they decided was made without the authority issuing that direction having formed an opinion in its mind as to the urgency of the case.

10. Now, what happened in that case was that the person who was resisting the acquisition proceedings urged before the High Court of Bombay that the direction made under Sub-section (4) of Section 17 was made without the Government having formed an opinion in their mind on the question whether the land proposed to be acquired was a waste or arable land. That was the limited challenge made to the direction issued under Section 17(4). As it will be clear from paragraph 10 at page 93 of the Report, the learned Advocate appearing on behalf of the petitioner who contested the acquisition proceedings admitted that what was stated in Clause (3) of the notification in that case was incapable of any other construction than that the authority which issued the impugned direction had formed in its mind the opinion that the case was one of urgency. But what he contended was that since that authority did not form in its mind the Further opinion that the land was a waste or arable land, the direction under Sub-section (4) of Section 17 was not within its power.

It is also clear that even if a contention had been urged that no opinion had been formed by the authority as to the urgency of the case, their Lordships would have found no difficulty in repelling that contention as can be seen from the observations made by them at page 93 of the Report which were clearly to the effect that what was stated in Clause (3) of the notification was a more than clear demonstration of the existence of the formation of the opinion in the mind of the authority that the case was one of urgency. There is thus nothing in the decision in Navnitlal's case, : AIR1961Bom89 which can assist Mr. Datar in his argument that notwithstanding the Government having stated in the impugned notification in this case that the acquisition of the land was urgently necessary, we should say that that statement was made by the Government without the application of their mind to the question whether the case was or was not one of urgency or that there was no proof of the formation of an opinion by the Government that the case was one of urgency.

11. It was next said that even if we can come to the conclusion that the Government did consider the matter to be one of urgency, this was a case in which, it was plain, that there was no urgency of any kind whatsoever. It was pointed out to us that although the application for a direction under Section 17(4) was made by the Agricultural Produce Market Committee as early as possible in February 1960, the Government did not consider it necessary to make that direction until December 1960 and it is asked whether there would have been that inordinate delay in the issue of that direction if really the matter was one of urgency.

12. That there should have been such great delay in the issue of the direction sought by the Committee is no doubt a feature which has caused me considerable perplexity. It cannot be said that Mr. Datar is making an insubstantial submission when he says that if really the matter was one of urgency, there would have been a postponement of the issue of the direction under Section 17(4) for a period of more than ten months. But the question is whether the fact that the issue of the direction was deferred for such a long period necessarily means that the matter was not one of urgency or whether in a case where the Government say that the case was one of urgency and some one who opposes the direction made under Section 17(4) says there was no urgency, the existence or otherwise of the urgency is justiciable.

13. In the counter affidavit produced on behalf of the committee an explanation has been given for the direction sought by them for the issue of a direction under Section 17(4) and after explaining the insufficiency of the premises which had already been acquired for the Committee and on which the Committee had constructed certain buildings and to the directions of an institution called the Indian Standards Institution, New Delhi, Which prescribed certain requirements for the planning and construction of regulated markets, this is what the Committee states :

'Considering the above recommendation of the Indian Standard Institution in the said Seminar and also the developmental potentialities of the Gadag Market, the quantity it was to handle, the economic condition of the market and the stature achieved, the Respondent-Committee framed a plan to have a systematic and well-laid-out market yard for efficient working. With this plan and object in view, the Committee sent a proposal on 22-1-1960 for acquisition of lands of Betgeri village, viz., R. S. Nos 459-A/2-A, 459-A/l, 458-A/l, 457, 456/1-A, 132. 455/1 and 2-A measuring in all about 34 acres, under Section 16 of the Bombay Agricultural Produce Market Act, 1939. The said lands are just adjacent to the lands already acquired and declared as Market yard. In view of the existing and scattered and congested, inadequate market yards, there would be a lot of hindrance for the smooth and effective regulation of trade in agricultural Commodities. Therefore, the Respondent-Committee, in view of the above necessity and urgency, applied on 11-2-1960, to get the lands acquired immediately by applying the urgency clause, under Sub-section (4) of Section 17 of the Land Acquisition Act.'

The First Respondent-Government, after carefully considering the purpose and object for which the lands are to be acquired and also after satisfying itself, by local inspection, about the necessity and urgency that existed, published a preliminary Notification dated 13-12-1960 under Section 4 of the Act and was further pleased to declare, under Sub-section (4) of Section 17, that the acquisition of the lands is an urgent necessity and that the provisions of Section 5-A of the Act shall not apply in respect of the said lands.'

That there was the application of the mind of the Government to the question whether the case is one of urgency is also what has been asserted on behalf of the Government in the counter affidavit of which the deponent is one of its Under Secretaries. If the circumstances in which the direction sought under Section 17(4) are those which have been explained by the Committee in their counter affidavit and if the Government thought that in those circumstances the case was one of urgency, even if it could be said that the question as to the existence or otherwise of urgency is a justiciable question I would be reluctant to say that the opinion formed in the mind of the Government in this case that the case was one of urgency is so unreasonable or so groundless that we should strike down the direction given under Sub-section (4) of Section 17 as one made without the authority of law.

14. It is, in my opinion, very clear that normally, compliance with Section 5-A which enjoins a hearing to a person who is entitled to oppose the acquisition is indispensable and that a direction dispensing with adherence to the provisions of Section 5-A can be issued only in exceptional cases in which the case is so urgent that the time that is likely to be spent over the hearing directed by Section 5-A would produce such great harm or public mischief that a direction dispensing with that hearing is imperative. Cases in which compliance with the procedure prescribed by Section 5A could be dispensed with are those in which on account of the exceptional circumstances of the case the acquisition does not brook any delay and has therefore become emergent. But the right to a hearing which is conferred on a person who is entitled to oppose the acquisition by Section 5A a deprivation of which cannot be made save in exceptional cases, must be made available to that person as a rule. The hearing enjoined by Section 5A should be the rule and deprivation of the right to that hearing the exception.

If however, as we have discerned in a large number of cases which we had occasion to decide, what is the exception has become the rule and what should have been the rule has become art exception, it is high time, in my opinion, for us to point out that recourse to Sub-section (4) of Section 17 should not be made as it is being made in almost every case in which there is a proposal for acquisition, without the recognition of the incontestable principle that unless the postponement of the acquisition proceedings' such as may be caused by affording a hearing enjoined by Section 5A is likely to generate such great harm or public mischief as to justify recourse to Sub-section (4) of Section 17, there should always be a hearing under Section 5A.

15. In that view of the matter, although generally, if the opinion formed by the Government in their mind of the existence of urgency may be above judicial review, there may be a case in which this Court might yet find it possible to say that that opinion was an impossible opinion either by reason of the fact that it rests upon no ground at all or rests on grounds which are demonstrated to be thoroughly irrelevant.

16. So tested, I do not find it possible to say that in this case we can substitute our own opinion for the opinion of the Government which they clearly formed that the case was undoubtedly one of urgency. The challenge made to the direction under Section 17(4) on the ground that the case was not one of urgency or on the ground that it was not believed to be one of urgency must, therefore, be negatived.

17. In that view of the matter, the submission that there were other lands which might have been acquired for the Committee or that some land which had been previously acquired for the Committee had been alienated by it in July 1960 to some educational institution or that the Government need not have been in a great hurry to dispense with the hearing under Section 5A and might have very well proceeded to afford to the petitioner that hearing ceases to have any materiality.

18. The next submission was one which rested on an order which we made to-day in Writ Petition No. 839 of 1961 (Mys) in which, by consent of parties, we released two lands out of many lands which were proposed to be acquired in that case from the acquisition. Those two lands are resurvey number 458/A-2 and resurvey Number 459/A-2 B. Since the Committee and the State had no objection to the release of these two lands from the acquisition, we made an order in that case directing the abandonment of acquisition proceeding in regard to those two lands. Although we did not say so in that case, it is clear that on one of those two lands there were some structures and that appears to have been the reason why the State was willing to except that land out of the acquisition proceedings.

Now, what is submitted on behalf of the petitioner in this case is that by reason of the fact that in respect of one of those lands which was not a waste or arable land a direction under Section 17(4) was not possible and the further fact that a composite notification was issued on December 13. 1960 which related not only to that land but to all the other lands whose acquisition was proposed, the entire notification has to be struck down as a defective notification not within the competence of the State. The submission made by Mr. Datar was that it is obvious from the fact that the Government issued that notification in respect of even that land on which there was a structure made it abundantly clear that the Government was unaware of the fact that on that land there were structures and that the land was therefore not a waste or arable land. That being so, it was argued that it is not for us to speculate whether a direction would have been issued under Section 17(4) in respect of even the other lands if the Government were aware of the fact that one of the lands in respect of which they did issue the direction was the land, to which Section. 17(1) was inapplicable.

19. I must say that I do not find it possible to accede to this submission. The land on which there were structures was a land which bears a distinct resurvey number belonging to the petitioner in W. P. 839/1961 in which the petitioner in this case had no interest. The impugned notification set out the many lands in respect of which a direction was issued under Section 17(4). If it is subsequently discovered as it has been discovered in this case that on one of those lands on which there were some structures was not a waste of arable land and therefore no direction could be issued in respect of that land under Section 17(1). I can imagine no reason why we should take the view that a direction which was perfectly within the competence of the Government in respect of the other lands should be struck down notwithstanding that direction being fully within the competence of the Government, If power such as what is conferred by Section 17(4) is exercised by the Government in respect of more than one land belonging to more than one individual and if it is discovered that that power could not have been exercised with respect to one of those lands, there would be small reason for thinking it' that part of the notification which is invalid can be severed from the other parts of it which are above reproach, we should not only strike down the invalid portion of the direction but also what is perfectly valid. That is, what, in my opinion, we should say even if the lands in respect of which the direction is issued belonged to the same individual.

Any ether view would lead to the extremely odd result that at in respect of a hundred lands a direction under Section 17(4) is issued and it is discovered that in respect of one small land out of the hundred that direction was not possible, the direction in its entirety becomes invalid and therefore liable to be struck down. Indeed, the area which was proposed to be acquired in this case measured a little more than 31 acres 11 guntas. It comprised many survey numbers out of which two survey numbers which have been released by virtue of our order in W. P. 839 of 1961 (Mys) from the acquisition measure a little more than 2 acres 6 guntas. How anyone could find it possible to say that because the direction could not have been issued in respect of these 2 acres 6 guntas, the direction which was quite within the power of the Government in respect of the remaining 29 acres 5 guntas should also fall as an invalid direction is what I find not easy to understand.

20. But Mr. Datar told us that in Prasanna Kumar v. State of Orissa, (S) AIR 1956 Orissa 114 their Lordships of the High Court of Orissa expressed the view that if a direction under Section 17(4) Was partly defective the Court had no option but to denounce the direction in its entirety. I am unable to read the decision of their Lordships of the Orissa High Court in the way in which Mr. Datar asks me to read it. On the contrary, their Lordships made it clear at page 121 of the Report that they found great difficulty in separating the invalid part of the direction from what was valid. If that was the reason why the entire direction was struck down, what they did cannot be relied upon as a precedent in support of the proposition that in all cases where a direction under Section 17(4) is defective in part, the Court has no option but to quash the direction in its entirety.

21. It was urged on behalf of the petitioner that there was a tomb and a school for the blind on resurvey numbers 458/A-2 and 459/A-2 B which have been excepted out of the acquisition and that a portion of the road to those two places is on some part of the lands belonging to the petitioner. Mr. Datar asked us to take the view that if this fact was known to the Government it was extremely improbable that they would have assented to the acquisition or issued a direction under Section 17(4). But Mr. Datar had to admit that the petitioner has made no such allegation anywhere until today about the existence of that route. This is therefore a case in which we cannot disturb the acquisition proceedings or the direction issued under Sub-section (4) of Section 17 of the Land Acquisition Act.

22. There is one other good reason why we should not do anything in this writ petition and it is this. The impugned direction of the Government was issued on December 13, 1960 which was followed up by the final notification under Section 6 of the Act on April 10, 1961. This writ petition was presented to this Court only on July 31, 1961, seven months and more after the issue of the impugned direction under Section 17(4) and nearly 31/2 months after the final notification under Section 6. It is thus clear that at all material times the petitioner acquiesced in the direction given by the Government under Section 17(4) and never made any challenge to that direction until long after the final notification was issued under Section 6. A person on whose part there has been Such great laches cannot, in my opinion, invoke the jurisdiction of this Court under Article 226 of the Constitution.

23. This writ petition is accordingly dismissed. There will be no order as to costs.

24. Mr. Datar says that a month's time may be granted to the petitioner for the removal of the crops which he has raised on the resurvey number and for the issue of that direction Mr. Rou appearing for respondent 3 and Mr. Government Pleader for respondents 1 and 2 have no objection. We accordingly issue a direction that the petitioner's possession shall not be disturbed until after the expiry of a month from this date or until after the petitioner removes the crops which he has raised on the lands, if such removal is made by him before the expiry of the month.

Mir Iqbal Husain,

25. I agree.


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