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Smt. Kailashwati Vs. State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 343 of 1977
Judge
Reported inAIR1978All181
ActsLand Acquisition Act, 1894 - Sections 5A, 17 and 17(4)
AppellantSmt. Kailashwati
RespondentState of U.P. and anr.
Appellant AdvocateMarkanday Katju, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
property - government acquisition - sections 17 (4) and 5a of land acquisition act, 1894 - summary proceedings under section 5a dispensed with due to urgency - urgency whether justified - court once satisfied that government acted within scope of its power and based its opinion on some relevant materials will not sit in appeal to examine opinion formed by government - acute scarcity of warehouses to store food grain - land acquired for constructions of godowns - constructions could not be delayed in public interest - held, state government justified in exercising power to dispense with summary proceedings. - - the notification stated that the land mentioned therein was required for construction of a market yard by the krishi utpadan mandi samiti, meerut (hereinafter referred to as the..........challenges the notification dated 12-10-1976 issued under section 4 read with section 17 of the land acquisition act (briefly stated as 'the act'). the notification was issued by the state government for acquiring a number of plots situated in village hafizabad mewala, district meerut. amongst the various plots mentioned in the said notification, one of them was plot no. 93, measuring 1 bigha 9 biswas. this plot belongs to the petitioner. the notification stated that the land mentioned therein was required for construction of a market yard by the krishi utpadan mandi samiti, meerut (hereinafter referred to as the mandi samiti). as in the opinion of the state government, the purpose for which the land was acquired was urgent, the governor exercising his power under section 17(1) and.....
Judgment:

K.C. Agarwal, J.

1. This writ petition challenges the notification dated 12-10-1976 issued under Section 4 read with Section 17 of the Land Acquisition Act (briefly stated as 'the Act'). The notification was issued by the State Government for acquiring a number of plots situated in village Hafizabad Mewala, district Meerut. Amongst the various plots mentioned in the said notification, one of them was plot No. 93, measuring 1 Bigha 9 Biswas. This plot belongs to the petitioner. The notification stated that the land mentioned therein was required for construction of a Market Yard by the Krishi Utpadan Mandi Samiti, Meerut (hereinafter referred to as the Mandi Samiti). As in the opinion of the State Government, the purpose for which the land was acquired was urgent, the Governor exercising his power under Section 17(1) and (1-A) as well as Sub-section (4) of the aforesaid section, dispensed with the proceedings under Section 5-A of the Act. This notification further contained a direction to Collector to take possession of the land mentioned in the Schedule before the award was given under Section 11 of the Act awarding compensation for the land mentioned therein.

2. The allegations made in the petition were that the petitioner was the owner of plot No. 93 of village Hafizabad Mewala, and that she had purchased the same in the year 1969 and since then she had been in continuous possession thereof. It was further alleged that she first constructed a godown on a portion of the land and, thereafter, a factory thereon for the manufacture of sugar mill machines. The petitioner claimed that the acquisition of land by the State Government for the purposes of the Mandi Samiti was illegal and against the provisions of the Act and was liable to be quashed.

3. The writ petition was resisted by the State Government as well as by the Mandi Samiti. Both the respondents claimed that the notification challenged by the petitioner was valid, having been issued in accordance with the provisions of the Act.

4. Although a number of grounds were taken in the writ petition on behalf of the petitioner, but Sri Markanday Katju, learned counsel appearing for the petitioner, pressed the petition only on one ground namely, that the urgency shown in the present case was not of such a nature that even the summary proceedings provided by Section 5-A of the Act could be dispensed with. The submission as elaborated by the learned counsel was that Section 5-A of the Act was mandatory in character inasmuch as it conferred a right upon the person whose land is proposed to be taken, 1o file objection to show that either the acquisition made was invalid or that other land was available which could be acquired instead of his land. The State Government dispensed with Section 5-A without there being any real urgency and deprived the petitioner of her right to file objection, therefore, the acquisition proceedings were liable to be quashed. The learned counsel further contended that the purpose for which the land was being acquired was by its nature not such an emergent one to warrant the elimination of even the summary proceedings under Section 5-A of the Act.

5. Before dealing with the submission of the learned counsel for the petitioner, we consider it proper to quote Section 17 of the Land Acquisition Act which authorises the appropriate Government to dispense with the procedure laid down in Section 5-A of the Act where the land is proposed to be acquired for public purposes under the Act. As already stated, Section 5-A entitles an aggrieved person to file objection against the proposed acquisition notified under Section 4 of the Act. The relevant portion of Section 17 of the Land Acquisition Act, as amended by the State Legislature, is as follows :--

'17. (1) In cases of urgency, whenever the appropriate Government so directs, the Collector though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, Sub-section (1) take possession of any waste or arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.

(1-A). The power to take possession under Sub-section (1) may also be exercised in the case of other than waste or arable land, where the land is acquired for or in connection with sanitary improvements of any kind or planned development.

(2).......................

(3).....................

(4) In the case of any land to which in the opinion of the appropriate Government, the provisions of Sub-section (1), Sub-section (1-A) or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A 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 publication of the notification under Section 4, Sub-sec. (1)'.

6. A reading of the above provision would show that the State Government is now empowered to dispense with the procedure of Section 5-A even in respect of land which is neither waste nor arable, if the land sought to be acquired is needed for planned development.

7. The question that arises for consi-power of the State Government to dis-deration in the instant case is about the pense with Section 5-A, It is no doubt true that the power conferred by Section 17 dispensing with Section 5-A can be exercised by the Government in a case where the Government is satisfied about the urgency of acquisition and comes to the conclusion on the basis of that urgency that even the adoption of the summary procedure provided by Section 5-A is likely to cause delay and may injure the very purpose for which the acquisition was proposed. The question of the existence and the extent of urgency is a matter for the subjective satisfaction of the Government and it is not open to the courts to examine the propriety or correctness of the satisfaction by scrutinising the same as a court sitting in appeal over it. Our view is supported by two Division Bench decisions of this Court in Ram Surat v. State of U. P. AIR 1976 All 166 and Som Datt v. State of U. P. (1976) 2 All LR 529 : AIR 1977 All (Notes) 10. The Supreme Court also in Raja Anand v. State of U. P. AIR 1967 SC 1081 took the same view, when it said that even though the power of the State Government has been formulated under Section 17(4) of the Act, in subjective terms the expression of opinion of the State Government can be challenged as ultra vires in a court of law if it could be shown that the State Government never applied its mind to the matter or that the action of the Government was mala fide.

8. The observation of the Supreme Court in the case of Raja Ram Anand Brahmdeo's case (AIR 1967 SC 1081) (supra) show that the court's power of interference is confined to the grounds of non-existence of facts or non-application of mind or on the ground of mala fide. Similar view was expressed by the Supreme Court in a recent case reported in Narayan v. State of Maharashtra AIR 1977 SC 183. In this case the Supreme Court observed that (at p. 186).

'In such cases, the formation of an opinion is a subjective matter, as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take.........

The test basically is :--Was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? 'Once the Court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however meagre, on which it could reasonably base its opinion, the Courts should not and will not interfere'.

9. We have now to see whether the State Government had applied its mind to the question whether there was urgency of such a nature that even the summary proceedings under Section 5-A of the Act were liable to be eliminated. It is pertinent to note that in the writ petition, as initially filed, the petitioner made no allegations in this respect. Subsequently by means of an amendment application the petitioner alleged that no sufficient material existed before the State Government to come to the conclusion that the summary proceedings under Section 5-A of the Act were necessary to be dispensed with. In reply to this allegation a counter-affidavit has been filed on behalf of the respondents stating that since there was an acute scarcity of godowns and warehouses because of which the grains purchased by the State Government were lying outside in the open on account of non-availability of godowns, as such, the Government of Uttar Pradesh was of the opinion that warehouses should be constructed in about forty Market Yards by the end of 1976 so that food-grains which were vital for national interest could be saved from being damaged. The necessity, in the opinion of the State Government of providing the godowns was so acute that the construction of the same could not be delayed and, as such, the State Government was satisfied about the urgency and as such it exercised the power conferred upon it by Section 17 of the Act. The counter-affidavit is accompanied by a letter of the Collector in which the dispensation of Section 5-A was recommended by him. In addition to these materials, the impugned notification itself contains recital about the existence of urgency for dispensing Section 5-A of the Act. The petitioner has placed no material in rebuttal before us to show that the assertion made on behalf of the respondents is incorrect. Accordingly it is apparent from the averments of the counter-affidavit that the appropriate authority applied its mind to the facts of the present case and it was satisfied that the urgency was of such a nature that even the proceedings under Section 5-A of the Act should be dispensed with. The evidence is sufficient on the record to show that the State Government examined the existence of the need to dispense with the enquiry under Section 5-A in addition to the existence of urgency. We, accordingly, find that the State Government applied its mind to the question of dispensation of the enquiry under Section 5-A of the Act.

10. Sri Markandey Katju laid great emphasis on the case of Narayan v. State of Maharashtra (AIR 1977 SC 183) (supra) and urged that in the said case the Supreme Court laid down that the power conferred by Section 17 could be applied only in cases where by operation of natural forces beyond the human control, the land had to be urgently taken possession of and as the present was not a case of that nature, Section 5-A could not be dispensed with. It is true that in para 39 of the judgment, the Supreme Court made observation to that effect, but it would not be correct, in our opinion, to say that the Supreme Court laid down exhaustively the list of cases where alone such a power could be exercised. The example taken was only illustrative. In Narayan's case before the Supreme Court, neither in the counter-affidavit filed on behalf of the acquiring body nor in the notification issued, there was any material showing that the State Government had applied its mind to the question that there existed urgency which warranted the elimination of the enquiry contemplated by Section 5-A of the Act, on the special facts and circumstances of the case the Supreme Court dismissed the State' appeal and issued a direction that the enquiry under Section 5-A of the Act be held. As noted earlier, the facts and circumstances available in the instant case are quite different which do not call for any interference by this Court , In the present proceedings. Reliance was also placed by the learned counsel for the petitioner on the case of K. Seshgiri Mailer v. Special Tehsildar for Land Acquisition (AIR 1965 Ker 92), for the proposition that a notification under Section 17(4) dispensing with the provisions of Section 5-A cannot be issued by the Government even in a case where the land is acquired for a purpose falling under Sub-section (1) or (2) where as a condition precedent the Collector has not formed and expressed his opinion that it is necessary to take immediate possession of the land in question on the ground of urgency. In the instant case, we have already referred to the letter of the Collector that the present was a fit case where immediate possession of the land was required to be obtained. Hence, this case is distinguishable.

11. In the result, the writ petition fails and is dismissed with costs.


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