Writ Petition No.11174 of 2012

27th February, 2013

Petitioner Counsel: Shri Sugandh B. Deshmukh,Shri Prakash Ahuja
Respondent Counsel: Ms. S.S. Bhende,Shri M.L. Patil

Cases Cited:
Darshan Lal Nagpal (Dead) by Lrs. Vs. Government of NCT of Delhi & Others, 2012 ALL SCR 785 : (2012) 2 SCC 327 [Para 3,6]
Jai Narain & Others Vs. Union of India and Others, (1996)1 SCC 9 [Para 3]

JUDGMENT

A.S. OKA, J. :- Heard learned counsel appearing for the Petitioners and the learned AGP for the first to fourth Respondents. We have also heard the learned counsel appearing for the fifth Respondent. The challenge in this Petition is to the Notification dated 29th August 2012 issued by the Divisional Commissioner, Nashik, issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act"). By the said Notification, urgency clause under Sub-section (4) of Section 17 of the said Act has been applied. The public purpose set out in the Notification is that the fifth Respondent which is a Planning Authority needs the lands for establishment of Oxidation Plant and Pumping Station. The contention raised in the Reply filed by the fifth Respondent is that there is an urgent need to establish the said Plant. It is contended in the reply of the State Government that the pollution level of river Godavari at Nashik is very high and it is necessary to control pollution as "Kumbhamela" is scheduled in the year 20142015. It is pointed out that grant for the said project has been received under the Jawaharlal Nehru National Urban Renewal Mission Project and that the project has to be completed within specified time. It is contended by the Planning Authority that in view of the order subsequently passed by this Court in a Public Interest Litigation, steps are required to be taken by the Municipal Corporation for protecting the river Godavari. It is contended by the fifth Respondent Planning Authority that in view of the public purpose, it is all the more necessary to complete the acquisition proceedings urgently in as much as Godavari River is already polluted to a great extent.

2. The learned AGP has tendered across the bar a communication dated 26th February 2013 signed by the Deputy Collector (Land Acquisition No.2) Nashik. On instructions, she states that the State Government is agreeable not to apply urgency clause under Sub-section (4) of Section 17 of the said Act and to give an opportunity of being heard in accordance with Section 5A of the said Act to the Petitioners as well as to the persons interested whose names have been set out in the communication dated 26th February 2013.

3. The learned counsel appearing for the Petitioners submits that in view of the aforesaid statements made by the learned AGP, in light of the decision of the Apex Court in the case of Darshan Lal Nagpal (Dead) by Lrs. v. Government of NCT of Delhi & Others [(2012)2 SCC 327] : [2012 ALL SCR 785], the impugned Notification issued under Section 4(1) of the said Act will have to be quashed and set aside. He submits that the challenge in the Petition is to the very existence of the public purpose as claimed in the Notification under Section 4(1) of the said Act. The learned counsel appearing for the fifth Respondent has relied upon a decision of the Apex Court in the case of Jai Narain & Others v. Union of India and Others [(1996)1 SCC 9].

4. We have considered the submissions. Perusal of Sub-section (4) of Section 17 of the said Act shows that when the appropriate Government is of the opinion that there is urgency as contemplated by Sub-sections (1) and (2) of Section 17 of the said Act, the appropriate Government may direct that the provisions of Section 5A of the said Act shall not apply and a declaration may be made under Section 6 of the said Act in respect of the land at any time after the date of publication of Notification under Section 4(1) of the said Act. As of today, a Notification under Section 6 of the said Act has not been published. The purpose of Section 5A of the said Act is to give an opportunity to persons interested in the land proposed to be acquired to object to the acquisition of land. It is obvious from Sub-section (1) of Section 5A of the said Act that the person interested can raise an objection that the public purpose for which the land is sought to be acquired does not exist. Sub-section (2) of Section 5A of the said Act contemplates that the Collector shall give an opportunity of being heard to objector in the manner provided therein. Thereafter, he is under an obligation to submit a report to the appropriate Government for the decision of the appropriate Government. After considering the report made under Sub-section (2) of Section 5A of the said Act, if the appropriate Government is satisfied that any particular land is needed for the public purpose, a Notification to that effect is required to be issued under Section 6 of the said Act.

5. All that the learned counsel appearing for the Petitioners is contending is that the Petitioners want to challenge the very existence of the public purpose. Now in view of the statement made on behalf of the State Government that a compliance with Section 5A of the said Act shall be made, it will be always open for the Petitioners to raise appropriate objections in accordance with Sub-section (1) of Section 5A of the said Act. It is obvious that the Collector will have to give an opportunity of being heard to the Petitioners provided they file objections. Only after considering the report of the Collector, if the appropriate Government is satisfied that the land is needed for public purpose, a declaration under Section 6 can be issued. In view of the aforesaid statements made by the learned AGP, now the grievance that the Petitioners will not get an opportunity of raising an objection will not survive.

6. The learned counsel appearing for the Petitioners is unable to point out any portion in the judgment of the Apex Court in the case of Darshan Lal Nagpal, [2012 ALL SCR 785] (supra) which holds that without disturbing Notification under Section 4(1) of the said Act by which urgency clause is applied, the Court can direct the appropriate Government to comply with Section 5A of the said Act. We may note here that Sub-section (1) of Section 5A of the said Act provides the time of 30 days from the date of publication of the Notification to object to the acquisition. In a given case, the Collector can always consider the objections which are raised even after the period of 30 days as there is no prohibition against the Collector considering the said objections.

7. Hence, in view of the statements made by the learned AGP, on instructions, it is obvious that the urgency clause under Sub-section (4) of Section 17 of the said Act will not be invoked and to that extent, that part of the Notification under Section 4(1) of the said Act which dispenses with the inquiry under Section 5A of the said Act will be rendered inoperative. There will not be any prejudice to the Petitioners and other persons interested in as much as they will get an opportunity to raise objections under Sub-section (1) of Section 5A of the said Act.

8. We propose to direct the State Government to fix the hearing on 15th April 2013. The State Government, apart from issuing individual notices to the persons interested, will have to publish a public notice in at least two leading newspapers notifying the date for hearing. It is obvious that the State Government will have to give an opportunity to all the persons interested to file their objections which can be considered in accordance with Sub-section (2) of Section 5A of the said Act. As the Petitioners are before the Court and as the date is fixed under the orders of this Court, it will not be necessary to serve a notice of the date fixed to the Petitioners. However, it will be open for the Petitioners to file objections as directed under this order.

9. Hence, we pass the following order:

ORDER :

(a) We accept the statements made by the learned AGP on instructions including the statements made in the communication dated 26th February 2013;

(b) The communication dated 26th February 2013 is taken on record and marked "X" for identification;

(c) In view of the aforesaid statements which we have recorded in the body of our judgment, that part of the Notification under Section 4(1) of the Land Acquisition Act, 1894 which directs that the inquiry under Section 5A of the Land Acquisition Act, 1894 stands dispensed with shall not be acted upon and to that extent, the Notification stands modified;

(d) We direct that the hearing of the objections in accordance with Section 5(A) of the said Act shall be fixed before the Deputy Collector (Land Acquisition) No.2, Nashik on 15th April 2013 at 11.00 a.m.;

(e) We direct that a public notice of the date fixed for hearing shall be published in at least in two leading newspapers having circulation in the area concerned on or before 11th March 2013; The public notice will state that the persons interested shall be entitled to file objections in writing. Apart from public notice, the Deputy Collector (Land Acquisition No.2), Nashik shall issue personal notice to the persons whose names have been set out in the communication dated 26th February 2013. The public notice as well a personal notice to state that the objections shall be filed on or before 10th April 2013;

(f) We make it clear that all the contentions raised by the Petitioners as regards the public purpose are kept open which can be agitated by submitting objections in writing;

(g) We also make it clear that we have made no adjudication on merits of the controversy. It will be always open for the appropriate Government to take recourse to Sub-section (1) of Section 17 of the said Act;

(h) We make it clear that as the Petitioners are aware of the date fixed for hearing, it is not necessary to serve personal notice to them;

(i) The Petition is disposed of on above terms;

(i) All the concerned to act upon an authenticated copy of this order.

Ordered accordingly.