1. This order will also dispose of Civil Writ Petitions Nos. 1084, 1085, 1086, 1087 and 1427 of 1974.
2. The State of Punjab issued a notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act) on February 21, 1974, declaring its intention to acquire the land of the petitioners for setting up a new Mandi Township at Goraya. On the same day another notification was issued under S. 6 of the Act, in which it was mentioned that since the public purpose for which the land was being acquired was of urgent importance it would be open to the authorities concerned to proceed to take possession of the land in dispute under S. 17(2)(c) of the Act. The petitioners have challenged the legality of these two notifications inter alia on the ground that the setting up of a new Mandi Township being a long drawn out process, in fact, the purpose of acquisitions was not of urgent importance. It has also been averred that the land of the petitioners was very fertile, yielding three crops in a year and that in the vicinity of the said land some other land which was not so productive was also available which could have been more conveniently acquired at less cost to the State exchequer.
3. In the return filed on behalf of the respondents Nos. 1 and 2 it has not been specifically denied that the land belonging to the petitioners was capable of yielding three crops in a year. The following reasons have been giving for invoking the urgency provisions:--
'The proceedings can be visited with the leading of evidence and a good number of adjournments. The Government on the executive side has no control over the statutory tribunal examining objections under S. 5A so as to curtail or limit the time of disposal of the case under S. 5A. The likelihood or say the danger of the case being prolonged so as to defeat the very aim of the Government in achieving a public purpose as a welfare state is not ruled out. Section 17 of the Act does give powers to the Government to take possession immediately if the aim of achieving a public purpose would be throttled otherwise. The uncertainty of the completion of proceedings under S. 5A in a limited and specified period, there being nothing in the Act to this effect and the haunting danger of the proceedings being prolonged unduly and unnecessarily and the case remaining hanging fire before another superior tribunal and Court, is a very sufficient and a good circumstance for the Government to take a decision for taking an action under Section 17 in this case. By taking possession immediately, temporary arrangement for shaping and figuring the area for a grain market can be made by the Government which area is certainly more spacious to meet the requirement urgently.'
4. Mr. Jasbir Singh Ahluwalia, who has stated these facts on affidavit, deserves to be congratulated for indulging in plain speaking. But I am somewhat astonished at the stand taken on behalf of the State Government. In substance it amounts to denying a statutory Tribunal a right to perform its duty of hearing objections under S. 5A of the Act. The Tribunal itself is appointed by the State Government and if the latter at the time of appointing the Presiding Officer of the Tribunal does not take care to appoint such persons who dispose of the cases expeditiously, the citizens cannot be made to suffer. It has been held in a large number of cases that the right of a land owner to raise objections under S. 5A of the Act about the feasibility of the acquisition is an important right which cannot be set at naught by adopting circuitous means. I could have understood if the plea raised on behalf of the State had been that the instant purpose of acquisition was of urgent importance. Unfortunately, the defence put forth relates to a matter of policy, designed to cope with the situation arising out of the lethargic working of the Tribunals. Such a defence is totally extraneous to the scope of S. 17 of the Act. In the Printers House Private Ltd. v. Misri Lal, ILR (1970) 1 Punj and Har 76: (AIR 1970 Punj & Har 1)(FB), a Full Bench of this Court had the occasion to deal with such a matter when it observed (at p. 6 of AIR):--
'We think, therefore, that if the question of urgency has been decided on grounds which are non-existent or irrelevant, or on material on which it would be an impossible conclusion to reach, it could legitimately be inferred that the mind has not been applied at all. Even Mr. Kaushal conceded that the proved mala fides would alter the complexion of the conclusion reached on subjective satisfaction on the question about the existence of urgent importance or urgency. It seems manifest to us that the question must be examined by Court before it could be found that the decision was reasonable. In other words, the question is not such which could be declared non--justiciable outright.'
5. I am bound to follow this view with respect. I may also add that with the advancement of industrialization in the State of Punjab more and more burden has started falling on the party farmers whose sole means of livelihood is agriculture. In the circumstances, the authorities exercising functions under the Act should try to follow the salutary provisions of S. 5A of the Act in its letter and spirit as far as possible before making acquisitions of land. Such authorities should, as far as possible, acquire inferior land so that the State exchequer may also not suffer. In this view of the matter the petition deserves to succeed.
6. Mr. Tiwana, learned Additional Advocate General, Punjab, has, however, argued that the petitioners have filed reference under S. 18 of the Act for claiming enhanced compensation and for that reasons I should not quash the acquisition in proceedings under Art. 226 of the Constitution. In support of his contention he has placed reliance on Tribunal De v. State of West Bengal (1962), 66 Cal WN 115 and Mohammed Habibullah Sahib v. Special Deputy Collector for Land Acquisition Madras, AIR 1967 Mad 118. The argument of Mr. Tiwana, if accepted, would bring about a curious situation. A land owner who has a genuine feeling that the notification regarding the acquisition of land is illegal would either have to challenge the legality of the notification by filing a petition under Art. 226 of the Constitution or to forego his right to make such a challenge and to claim enhanced compensation only. I see no ground to introduce an element of uncertainly in the procedure which entitles a citizen to enforce his rights. The other ground impels me to take this view that the notification under S. 4 of the Act was issued on February 21, 1974 and the instant petition was filed on March 21, 1974. At the time of admission of the petition further proceedings were ordered to be stayed by the Motion Bench and according to the learned counsel for the petitioners the land owners continued to be in possession of the land. In the Madras case cited above the acquisition was challenged after a long delay of three years. In the circumstances, I see no force in the contention raised by Mr. Tiwana. These petitions are accordingly allowed with costs Counsel's fee Rs. 300/-in each case.
7. Petition allowed.