The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 564 of 2015 Chandra Shekhar Nath Ganjhu .. ... ... ... ... Appellant -Versus- 1. The State of Jharkhand 2. The Secretary, Revenue and Land Reforms Department, Govt. of Jharkhand, Ranchi. 3. The Deputy Secretary, Revenue and land Reforms Department, Govt. of Jharkhand, Ranchi. 4. The Deputy Commissioner, Khunti. 5. The Additional Collector, Khunti. 6. The Sub-Divisional Officer, Khunti. --------- Respondents CORAM: SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. --------- For the Appellant(s): For the State: M/s Rahul Kumar Gupta, Akash Bhushan and Swati Singh, Advocates. Mr. Sachin Kumar, AAG-II Mr. Rakesh Kumar Sahi, A.C. to AAG. --------- 08/24.08.2023 Upon hearing the learned counsel for the parties, this Court passed the following, (Per, Sanjaya Kumar Mishra, C.J.)
Decision
O R D E R This intra-Court Appeal is at the instance of the writ petitioner challenging the judgment/order dated 29.7.2015 passed in WP(C) No. 2622 of 2007, whereby the writ petition, filed by the petitioner, has been dismissed. 2. Counsel appearing on behalf of the petitioner-appellant submitted that the urgent provision for acquiring land in terms of Section 17 of the Land Acquisition Act 1894 could not have been invoked in the facts of this case as the valuable right, which has been granted in Section 5A of the Land Acquisition Act, to the petitioner, has been taken away. He also submitted that the land was acquired by invoking the special power under Section 17 of the Land Acquisition Act 1894, but considering the fact that the purpose for which the acquisition was made, as on date has not been achieved, inference can be drawn that there was no urgency to waive Section 5A of the Act. It is his contention that reasonable opportunity under Section 5A of the Land Acquisition Act should have been afforded to the petitioner-appellant if at all the State wanted to acquire the property. Learned counsel for the petitioner submitted that all these aspects were not considered by the learned Single Judge and the writ petition was dismissed. The petitioner further claims that this is the only piece of land which the petitioner has and this fact also not been considered by the learned 2. Single Judge. The petitioner has factually argued that the land has been acquired for the purpose of construction of bus stand by invoking the urgency clause of the Act in the year 2006, but in fact, there is an existing bus stand at a different place within the town. He also submitted that from the year 2006 till date, the construction has not yet been completed, which clearly suggests that there was no real purpose to invoke Section 17 and apply Section 17(4) of the Land Acquisition Act. It has been lastly submitted that the compensation though has been fixed and the petitioner was directed to receive the said compensation, yet the petitioner did not receive the same as the petitioner has challenged the very acquisition including invocation of Section 17 and specially Section 17(4) of the Act. 3. The learned Addl. Advocate General appearing on behalf of the State submitted that whether the land has to be acquired by invoking special power under Section 17 of the land Acquisition Act or not, is within the absolute domain of the State. There cannot be any straight jacket formula for initiating the process of acquisition. Whether the purpose is urgent or not, has to be decided by the State applying subjective satisfaction. He submitted that the land owner cannot challenge the subjective satisfaction, thus the learned Single Judge has correctly rejected the writ petition, filed by the petitioner-appellant. On the factual aspect, he submitted that in the District of Khunti, it was necessary to construct a bus stand for which, there was urgency to acquire the land. The land which has been acquired is convenient for all concerned so the land was acquired invoking special power, which cannot be questioned. He admits that there is an existing bus stand but the same is not fulfilling the purpose. During course of argument on query, as to whether the bus stand has been constructed or not, on reply, the learned AAG produces recent photographs of said bus stand before this Court, which is counter-signed by the Executive Officer, Nagar Panchayat, Khunti, which suggests that the construction work is still incomplete and the bus stand is far from being operational. 4. After hearing the learned counsel for the parties and after going through the record as well as impugned order, we find that the facts are admitted in this case. The land in question appertaining to Khata No. 21, 23, 24, 22, 27, 31 and 32, total area 47.99 acres was holding of Khewatdar- Bahor Ganjhu. The land of Plot No. 42 having area 2.54 acres of Khata No. 21 is also included in the aforesaid Khewat. The entire land was in the name of Bahor Ganjhu and his 3. ancestors. These appellants are the descendants of Bahor Ganjhu and the land was in possession of the appellant and other co-sharers. This fact is not disputed. The petitioner came to know that by invoking special power in terms of Section 17 of the Land Acquisition Act, 1894 (hereinafter to be referred as ‘the Act’), the respondent-State is going to acquire the land of the petitioner to construct a bus stand. The petitioner-appellant objected and approached the Sub-Divisional Officer, Khunti on 28.10.2005, but nothing happened. Thereafter on 23.12.2006, a notification was issued which was published on 11.1.2007 in the newspaper by which, the land of the petitioner was acquired by invoking Section 17 of the Act for construction of the bus stand. Section 17(4) of the Act was also applied. On 27.7.2012, a notice was published in the newspaper directing the petitioner to accept and receive the compensation. 5. It is the case of the appellant that on the facts of this case Section 17(4) of the Act could not have been invoked thereby, giving a go-bye to Section 5A of the Act. 6. Section 17 of the Act deals with the special power for acquisition of land in case of urgency, which reads as under:- the free [Government], 17. Special powers in case of urgency. – (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 land needed for a public purpose]. Such land shall thereupon [vest from all in absolutely encumbrances. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or accesses to any such station, [or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the [appropriate Government], enter upon and take possession of such land, which shall thereupon [vest from all in absolutely encumbrances : Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours notice of his intention so to do, or such [Government]] free the 4. longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3) In every case under either of the preceding sub- sections the Collector shall at that time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and from any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. [(3A) Before taking possession of any land under sub- section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3)- (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the person interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (3B) The amount paid or deposited under section (3A), shall be taken into account for determining the amount of compensation required to be tendered under section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under section 11, the excess may, unless refunded within three months from the date of Collector's award, be recovered as an arrear of land revenue]. [(4) In the case of any land to which, in the opinion of the [appropriate Government], the provisions of sub- section (1) or sub-section (2) are applicable, the [appropriate Government] may direct that 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 the publication of the notification] under section 4, sub-section (1).] 7. As per Section 17(1) of the Act the Collector has got power to take possession of any land, free from all encumbrances, upon direction of the appropriate government on expiry of 15 days from the publication of notice, mentioned in Section 9 of the Act. Section 17(2) of the Act provides for acquisition of land owing to any sudden changes in the channel of any navigable river or other unforeseen emergency or it becomes necessary for any Railway administration to acquire and take immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river- side or ghat station, or for providing convenient connection with or access to any 5. such station or where the appropriate Government considers it necessary to acquire and take immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity, etc. The proviso of Section 17(2) provides that 48 hours notice must be given to the occupier informing about the intention to take possession of the land. Section 17(3) provides for compensation of standing crop in case of urgent acquisition and the procedure thereof. Section 17(4) of the Act provides that in case, as per the opinion of the appropriate government, the provision of Sub-Sections (1) and (2) of Section 17 of Act are applicable, the appropriate government may direct that the provision of Section 5A of the Act shall not apply. Thus, as per Section 17(4) of the Act, the right which is conferred to a land looser by Section 5A of the Act, has been taken away. This provision has to be invoked when there is urgency for acquiring any land. 8. In this context, it is also necessary to consider Section 5A of the Act. Section 5A of the Act provides that if a person has interest in the land, which has been notified under Section 4 of the Act for acquisition (Preliminary notification) then he can object within 30 days from the date of publication of such notice. Sub-Section 2 of Section 5A of the Act deals with the procedure, which has to be followed on receipt of such objection. As per Sub-Section (2) of Section 5A of the Act the Collector is duty bound to give opportunity of hearing to the objector and he shall consider the objection and thereafter will prepare a report. There is also provision of making further enquiry as per the aforesaid provision. It is necessary to quote Section 5(A) of the Act, which reads as under:- “5A. Hearing of objections. - (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, [within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be. 2. Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard [in person or by any person authorized by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, [either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held 6. by him, for the decision of that Government]. The decision of the [appropriate Government] on the objections shall be final. (3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.” 9. A person, including a juristic or legal person cannot be deprived of his property, save by the authority of law. This is the mandate of Article 300-A of the Constitution of India. Thus, without a specific provision of law, a person cannot be deprived of his properties. To acquire or deprive land holder from from their property, the Land Acquisition Act was promulgated, which has been repealed by Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 10. Section 5-A of the Land Acquisition Act deals with filing objection by the person interested in the land, which is being notified for acquisition. This provision, in fact, provides for following the principle of natural justice where a person’s property is sought to be acquired by the State. This principle of natural justice of filing objection and affording an opportunity of hearing has been barred by virtue of Section 17 (4) of the Act. 11. In this context, if we analyze Section 17(4) of the Act, we find that Section 17(4) of the Act is an exception to the general Rule. When there is an exception to the Rule doing away with the principle of natural justice, the provision mentioned therein would be strictly followed. Section 17 of the Act gives special power to acquire the property in cases of urgency. Section 17(4) of the Act provides that the appropriate Government may direct in such cases, Section 5A of the Act shall not be applicable. Thus, it takes away the right of filing objection and the act of deciding the said objection. This is because the urgency of acquisition is so important that if objection is sought for then the purpose of acquisition will be frustrated. 12. In the instant case when we go through the notification, we find that the State invoked Section 17(4) of the Act, thereby doing away with the mandate of Section 5-A of the Act. Thus, the petitioner was deprived of filing any objection and get the same decided after proper inquiry. In the case of Darshanlal Nagpal and Ors. Vs. Govt. of NCT of Delhi and Ors., reported in (2012) 2 SCC 327, the Hon’ble Supreme Court referring to several of its earlier judgments, in paragraph- 25, has held that it is not possible to lay down any straight jacket formula which can be applied in each and every case involving challenge to the acquisition of land by invoking urgency provision. Similarly in Paragraph 28, the Hon’ble Supreme Court while dealing with Section 17 of the Act, observed as under:- 7. “28. What needs to be emphasized is that although in exercise of the power of eminent domain, the State can acquire the private property for public purpose, it must be remembered that compulsory acquisition of the property belonging to a private individual is a serious matter and has grave repercussions on his constitutional right of not being deprived of his property without the sanction of law- Article 300-A and the legal rights. Therefore, the State must exercise this power with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing.” Considering the observation made in paragraph 28, each case should be dealt with individually on the fact of each case. Further in paragraph 36, the Hon’ble Supreme Court has held as under:- “36. It needs no emphasis that majority of the projects undertaken by the State and its agencies/instrumentality, the implementation of which requires public money, are meant to benefit the people at large or substantially a large segment of the society. If what the High Court has observed is treated as a correct statement of law, then in all such cases the acquiring authority will be justified in invoking Section 17 of the Act and dispense with the inquiry contemplated under Section 5-A, which would necessarily result in depriving the owner of his property without any opportunity to raise legitimate objection. However, as has been repeatedly held by this Court, the invoking of the urgency provisions can be justified only if there exists real emergency which cannot brook delay of even few weeks or months. In other words, the urgency provisions can be invoked only if even small delay of few weeks or months may frustrate the public purpose for which the land is sought to be acquired. Nobody can contest that the purpose for which the appellants' land and land belonging to others was sought to be acquired was a public purpose but it is one thing 8. to say that the State and its instrumentality wants to execute a project of public importance without loss of time and it is an altogether different thing to say that for execution of such project, private individuals should be deprived of their property without even being heard.” 13. Thus from the aforesaid judgment, it is clear what has to be seen is whether if the urgency clause is not invoked then the purpose of acquisition would fail or not and whether there is actually urgent need of acquisition which cannot even wait for compliance of Section 5A of the Act. If acquisition is utmost urgent (on the facts of each case) and it cannot even wait for the period which would consume in exercising the provision of Section 5A of the Act then the acquisition can be made by for invoking Section 17 of the Act, waiving Section 5A of the Act. On the contrary, if it is found that on the facts of the case, the acquisition can wait for providing the opportunity of hearing, as envisaged, in Section 5A of the Act to the land looser, then it cannot be said that the acquisition is of such urgency for which, Section 17(4) of the Act can be invoked. 14. In the instant case, the notification was issued on 23.12.2006 and published on 11.1.2007 for acquiring the land showing the urgency. The urgency is for construction of a bus stand. The said notification clearly mentioned that while acquiring, Section 17(4) of the Act is invoked and it was so urgent to acquire the land that even to given the time necessary to comply Section 5A of the Act was not possible. 15. In the instant case, the acquisition of the land is for construction of a bus stand. Admittedly, a bus stand was already constructed in the town, but as per the counter of the State, the bus stand was not made operational as the same was constructed in a place which is not convenient for people, so it is not being utilized. 16. Further glaring aspect is that though the land was acquired in the month of December, 2006 but admittedly till date the new bus stand has not been made operational and even not fully constructed. The photographs produced before the Court today by the learned Addl. Advocate General clearly suggests that the construction has not yet been completed. There is no internal roads, no bus bay constructed and even the land has also not been leveled. The photographs of the bus stand are taken and kept on record. 9. 17. After more than sixteen years of acquisition, it is a fact that the State could not complete the construction of the said bus stand and nor made it operational. This clearly suggests that there was no urgency for the acquisition of the land in question. 18. In absence of any urgency, Section 17 of the Act or even Section 17(4) of the Act could not have been resorted to. Mere tendering of compensation (though the same has not been accepted by the land owner) will have no bearing in this case, as we have concluded that invoking of urgency provision is bad, as there was no urgency at all to invoke Section 17 or Section 17(4) of the act by waiving Section 5A of the Act, which is a procedural safeguard to the land looser. This aspect has not been considered by the learned Single Judge. 19. In view of what has been held above, we are inclined to allow this appeal. Accordingly, this appeal is allowed. The order impugned passed by the learned Single Judge dismissing the writ petition is set aside. The acquisition notification and all consequent action thereto are set aside. 20. However, it is made clear that this judgment shall not preclude the competent authority for issuing fresh notification for taking steps to acquire the land and initiate a fresh proceeding of acquisition of land in question as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 21. 22. There shall be no orders as to costs. Urgent certified copies as per rules. Anu/-Cp2 (A.F.R.) (Sanjaya Kumar Mishra, C.J.) (Ananda Sen, J.)