Mr. K.K.Baruah v. Mr. N. Rajkhowa

3. The petitioner contended that the State Govt. by Notification No . RLA 253/2007/2, dated 03.01.2008, published in Assam Gazette, acquired land fo r setting up of a Information Technology Park(for short, I.T.Park) at Bongara. T he permanent residents of the village Bongara, to resist the acquisition, formed and/or established an unregistered society namely (cid:28)Bongara Sontala Bhumi Suraks ha Samittee (cid:29) and under the umbrella of that ’Samittee’(society), they have been fighting to resist the government from acquiring the land under process of acqui sition. It is the contention of the petitioner, that altogether, 294 Bighas, 1 K atha and 1‰ Lechas of land of village Bongara, Mouja Cheyani, in the District of Kamrup, has been acquired for the purpose of I.T.Park, under Palashbari revenue circle, and as a result of such acquisition, many people will be losing their h ouse and cultivable land, and that land under acquisition, are fertile land for producing crops and vegetables and if those lands are taken away, the members of the ’Samittee’ will lose their source of livelihood as well as their permanent residents. They have contended that though notification was made on 03.01.2008, possession has not been taken over as yet, and that the members of the ’Samittee ’ paying the land revenue to the government, as usual, for their respective land and they have produced the revenue receipts in support thereof. It is also contended by the petitioner that on earlier occasion, land from same Mouja was proposed for acquisition for Indo-Tibetean Border Poli ce(ITBP), but because of the agitation of the local people, state Govt. ultimate ly cancelled the acquisition process and by a Notification derequisitioned the p roposed acquired land. The petitioner has, therefore, prayed for directing the responde nts to derequisition the land, acquired under Notification dated 03.01.2008, as aforesaid, and to restrain the revenue officials from entering into the area for acquisition purpose. Respondents contended that the acquisition of the land has been 4. made under Notification No. RLA 253/2007/2, dated 03.01.2008, as per Section 17 of the Land Acquisition Act, 1894. After such acquisition, the respondents alrea dy determined compensation for the acquired land and some of the interested pers ons belonging the land, already accepted the compensation for such acquisition, and possession also has been taken over of the maximum area of acquired land. Ta king over of possession is in the process and the writ petition is liable to be dismissed.

5. Learned counsel for the petitioner, has contended that about 5 y ears going to be elapsed since the notification has been issued acquisitioning t he land but the respondents not yet taken over possession and under such circums tances, the claim of the respondents that the acquisition has been made to meet extreme urgency, as prescribed under Section 17 of the L.A. Act, no longer exist s and hence, the respondents are liable to withdraw the notification and issue a fresh notification derequisitioning the acquired land.

6. Learned Additional G.A., on the contrary, has submitted that aft er the notification, issued under Section 17, the land has already been vested w ith the government. Compensation has also been determined and some of the intere sted persons already received compensation. The authority has also taken possess ion of maximum part of the acquired land and some area yet left out because of t he pendency of the present case. He has submitted that there is no point of dere quisitioning the land since it is for urgent public purpose. He has also submitt ed that maximum local people are very much enthusiastic and interested in the se tting up of I.T. Park which will generate employment, as a result of which peopl e will be highly benefited.

7. Admittedly, the present acquisition process has been taken up by the respondents by a Notification, issued under Section 17 of the L.A. Act. In the moment such a Notification is issued, the land described in the Notification vests in the appropriate Govt. for such purpose, for which the acquisition has been made. Law has prescribed that the authority can take over possession on exp iration of 15 days from the publication of notice as mentioned in Section 9, sub Section (1) of the said Act. Section 9, sub Section (1) prescribes thus:- (cid:28)9.Notice to persons interested.-(1) The Collector shall then ca use public notice to be given at convenient places on or near the land to be tak en, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. (cid:29)

8. On record, we find that the respondents issued Notification spec ifying the land under acquisition vide Notification No. RLA 253/2007/2, dated 03 .01.2008, published in Assam Gazette. Respondents also placed on record the appr oval of the appropriate Government for such acquisition, vide Letter No.KRA-44/2 007/3, dated 06.09.2007(Annexure-3 to the counter affidavit). The petitioner pla ced on record a copy of Form-15 regarding compensation determined by the L.A. Co llector in respect of the acquired land. It is, therefore, evident that compensa tion for the acquired land has already been determined by the appropriate author ity and the persons interested to the land, under acquisition, may receive the c ompensation and take further action according to law. The scheme of Land Acquisition Act prescribes the general proced 9. ure of acquisition in the process of publishing notification under Section 4; he aring of objection under Section 5(A); a declaration under Section 6 and then de termination of compensation and thereafter taking over of possession on payment of such compensation. Section 17 of the Act has vested a special power to be exe rcised by the Acquisitioning authority in case of urgency and when a notificatio n is made under Section 17 for the purpose of acquisition, hearing of objections as required under Section 5(A) of the L.A. Act, is presumed to have dispensed w ith and a determination of compensation is to be made after publication of a not ification as prescribed by law. We find that the notification has already been m ade by the Acquisitioning authority describing the land, which has been acquired , and inviting the parties to receive the compensation. In the ordinary course of acquisition, after a declaration is ma 10. de under Section 6 of the L.A. Act, the Collector shall make the award under Sec tion 11 within a period of 2 years from the date of publication of the declarati on and if no award is made within that period, the entire proceeding for the acq uisition of the land shall lapse. The provision of time span has been prescribed in Section 11A of the L.A. Act. On the contrary, while a notification is made u nder Section 17 of the L.A. Act and notice published as prescribed in Section 9 of the Act, the authority can take over possession of the acquired land even bef ore determination and payment of compensation. Learned counsel of the petitioner referring the decision of Union of India and others V. Kishanlal Arneja and Oth ers reported in AIR 2004 SC 3582, has submitted that the provision as prescribed under Section 17 is a special provision and in the circumstances, where about 5 years going to be elapsed and the authority did not yet take over possession, i t may be presumed that there was no urgency for a notification under Section 17, and thereby, the entire acquisition process has vitiated. The Apex Court in Kis hanlal(supra) has observed thus:- (cid:28)Section 17 confers extraordinary powers on the authorities unde r which it can dispense with the normal procedure laid down under S.5-A of the A ct in exceptional case of urgency. Such powers cannot be lightly resorted to exc ept 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, howev er, laudable it may be, by itself is not sufficient to take aid of S.17 to use t his extraordinary power as use of such power deprives a land owner of his right- in-relation to immovable property to file objections for the proposed acquisitio n and it also dispenses with the inquiry under S.5-A of the Act. The authority m ay have subjective satisfaction of the need for invoking urgency clause under S. 17 keeping in mind the nature of the public purpose, real urgency that the situa tion 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 land owners and the inquiry under S.5-A of the Act could be completed. In o ther words, if power under S.17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgen cy 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 infruc tuous. A citizen’s property can be acquired in accordance with law but in the ab sence of real and genuine urgency, it may not be appropriate to deprive an aggri eved party of a fair and just opportunity of putting forth its objections for du e consideration of the acquiring authority. While applying the urgency clause, t he State should indeed act with due care and responsibility. Invoking urgency cl ause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration. (cid:29)

11. Undoubtedly, Section 17 of the L.A. Act is an exception to the g eneral rule, as prescribed under the L.A. Act, to be followed in course of acqui sition of land. In the event, notification was made under Section 17 of the L.A. Act, certain valuable rights of the land holders, prescribed under the Act, sei ze to operate. Only in a case of real urgency where the situation demands that t aking over of possession of the land is required at once and the ordinary proced ure cannot be followed, only in such cases the administration is expected to inv oke the provision. The urgency must be a real urgency and should not be whimsica l. The State is expected to act with due care and responsibility while invoking the urgency clause. In the present case, notification was made on 03.01.2008 acquisi tioning the land for setting up of an I.T. Park. The State Govt. at its wisdom c onsidered the acquisition urgent and, therefore, invoked the power prescribed un der Section 17 of the Act. It is, therefore, expected that the Govt. shall not s how any laxity or lethargy while taking action followed by notification under Se ction 17 of the Act. The Supreme Court made it categorically clear that only in exceptional situation such power should be exercised. The petitioners’ themselve s enclosed a copy of the record showing determination of Rs.5,42,75,169/- for th e acquired land. In their writ petition, the petitioner stated that they have be en vigorously opposing the acquisition of land and trying to prevent the Revenue Officers from taking over of possession of the acquired land. The respondents c ontended that the acquisition process was urgently taken up and after notificati on, compensation has also been paid to some of the land holders and some others are yet to receive the compensation, and the matter was also delayed, because of pendency of the case before the court. While the members of the petitioner’s so ciety themselves resisting the handing over of possession of not receiving the d etermined compensation, they cannot claim the respondent authority for the lapse of time in the meantime. While the reason for delay is attributable to the peti tioner, they cannot claim advantage of the delay and so, the petitioner and its members cannot claim that there was actually no urgency and the provision was wr ongly resorted to. The ratio of the decision of the Hon’ble Apex Court, in the g iven facts and circumstances of that case, therefore, cannot be invoked and/or a pplied in the given facts and circumstances of this case. While a notification has been made under Section 17 of the Act, 12. the land automatically vests in the government after the notification is made an d the rest of the procedure is to be followed regarding determination of the com pensation and taking over of the possession. Provision of Section 5-A has no man ner of application in the process of an acquisition under Section 17 of the Act. Similarly the provision of Section 11-A also has no manner of application. The Supreme Court in the case of Satendra Prasad Jain and others V. State of U.P. re ported in AIR 1993 SC 2517 has critically examined and laid down the law in resp ect of application of Section 11-A and Section 5 of the L.A. Act in a acquisitio n process invoking emergency clause prescribed under Section 17 of the Act. The Court has held thus:- (cid:28)The provisions of S.11A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the S.6 declaration. In the ordinary case, therefore, when Government fails to m ake an award within two years of the declaration under S.6, the land has still n ot vested in the Government and its title remains with the owner, the acquisitio n proceedings are still pending and, by virtue of the provisions of S.11A, lapse . When S. 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under S.11 and thereupon the owner is divested of the title to the land which is vested in the Government. S. 17(1) st ates so in unmistakable terms. Clearly,S.11A can have no application to cases of acquisitions under S.17 because the lands have already vested in the Governmen t and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. S.11A cannot be so construed as to leave the Government holding title to the land without the obligation to determine co mpensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation. (cid:29)

13. We find no merit in the writ petition and since the issues what have been raised by the learned counsel of the petitioner, that possession has n ot been taken over as yet, or that the public at large are not interested to han d over the possession etc., cannot be decided in a writ petition under Article 2 26 of the Constitution as those are disputed question of fact and need to be dec ided taking evidence thereof. 14. stances without cost. The Writ petition accordingly stands dismissed but in the circum