TaxTMI 
TaxTMI 
2013 (3) TMI 877
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....he expiry of two years from the commencement of the Rajasthan Land Acquisition (Amendment and Validation) Act, 1981 (for short, "1981 Amendment Act"). (ii) Whether invocation of power of urgency and dispensation of inquiry Under Section 5-A after 7 years of issuance of preliminary notification Under Section 4 of the 1953 Act are legally sustainable? 3. The above two questions arise from these facts: on 01.05.1980, the state government issued a preliminary notification Under Section 4 that the subject land was needed or likely to be needed for a public purpose, namely, construction of bus stand. The state government required and authorised Land Acquisition Officer (SDO), Dungarpur to enter upon, do survey and all other acts necessary to ascertain whether land was suitable for such public purpose and enquire into and ascertain the particulars of the persons interested in such land. 4. On 19.03.1987, a notification was issued Under Section 6 of the 1953 Act. By that notification the state government also invoked its powers conferred Under Section 17(1) read with Section 17(4) of the 1953 Act and dispensed with the provisions of Section 5-A. 5. An important event occu....
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....ort of the appeal: I) Proceedings could not be continued because notification Under Section 6 of the Act was issued after a lapse of about 7 years. This was in view of the provisions of Sub-section (2) of Section 5 of the Rajasthan Land Acquisition (Amendment and Validation) Act, 1981. The said provisions provided a limitation of two years from the date of commencement of the Validation Act for issuing the declaration Under Section 6. Since the declaration was issued much beyond this period of limitation the same was liable to be quashed. It was further contended that Section 17(4) notification could not be used to validate the proceedings. II) Notice Under Section 17(4) was void ab initio because the Respondents failed to tender payment of 80 percent of compensation as envisaged Under Sub-section (3)(a) of Section 17 of the Land Acquisition Act. III) The action of the Respondents is highly arbitrary. By issuing a notification Under Section 4 of the Act in the year 1980 the Appellants were being pegged down for purposes of payment of compensation although effectively the acquisition was being made in the year 1987. 9. Dealing with the first point, the ....
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....ked for the first time by the state government after seven years of issuance of the preliminary notification Under Section 4. 12. Section 4 of the 1953 Act is identical to Section 4 of the Land Acquisition Act, 1894 (for short, "1894 Act"). It provides that whenever the state government considers it necessary or expedient to acquire land in any locality, needed or likely to be needed for a public purpose, it shall, by an order published in accordance with the provisions of Sub-section (4) of Section 45, require any officer subordinate to it and generally or specially authorised in this behalf, to enter upon or into any land in such locality accompanied by his servants and workmen for the purpose stated therein. Sub-section (5) of Section 4 empowers the Collector to issue notice to the persons interested of the proposed acquisition and also issue a public notice to that effect at convenient places on or near about the land proposed to be acquired. 13. Section 5A enables the person interested in any land in respect of which notice has been issued Under Section 4 (5) to object to acquisition of that land. 14. Section 6 is also similar to Section 6 of the 1894 Act. Inter alia,....
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....ernment. The power of eminent domain, being inherent in the government, is exercisable in the public interest, general welfare and for public purpose. The sovereign is entitled to reassert its dominion over any portion of the soil of the state, including private property without its owner's consent provided that such assertion is on account of public exigency and for public good. 17. Article 300-A of the Constitution mandates that no person shall be deprived of his property save by authority of law. Though right to property is no longer a fundamental right but the constitutional protection continues in as much as without the authority of law, a person cannot be deprived of his property. Accordingly, if the state intends to appropriate the private property without the owners' consent by acting under the statutory provisions for compulsory acquisition, the procedure authorised by law has to be mandatorily and compulsorily followed. The power of urgency which takes away the right to file objections can only be exercised by the state government for such public purpose of real urgency which cannot brook delay of few weeks or few months. This Court as early as in 1964 said tha....
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.... importance of Section 5-A in the following words: 41.......That Section 5-A of the Act confers a valuable right to an individual is beyond any doubt. As a matter of fact, this Court has time and again reiterated that Section 5-A confers an important right in favour of a person whose land is sought to be acquired. 42. When the Government proceeds for compulsory acquisition of a particular property for public purpose, the only right that the owner or the person interested in the property has, is to submit his objections within the prescribed time Under Section 5-A of the Act and persuade the State authorities to drop the acquisition of that particular land by setting forth the reasons such as the unsuitability of the land for the stated public purpose; the grave hardship that may be caused to him by such expropriation, availability of alternative land for achieving public purpose, etc. Moreover, the right conferred on the owner or person interested to file objections to the proposed acquisition is not only an important and valuable right but also makes the provision for compulsory acquisition just and in conformity with the fundamental principles of natural justice....
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.... reasonable nexus with the purpose for which the power has been exercised. Upon challenge being made to the use of power Under Section 17, the Government must produce appropriate material before the Court that the opinion for dispensing with the enquiry Under Section 5-A has been formed by the Government after due application of mind on the material placed before it. 45. It is true that power conferred upon the Government Under Section 17 is administrative and its opinion is entitled to due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary. 46. As to in what circumstances the power of emergency can be invoked are specified in Section 17(2) but circumstances necessitating invocation of urgency Under Section 17(1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated Under Section 5-A may not be held and objections of landowners....
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....lication of Section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry Under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired. (vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power Under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the authorities concerned did not apply their mind to the relevant factors and the records. (vii) The exercise of power by the Government Under Section 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in Sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered Under Sub-s....
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....l right Under Section 5-A is the only right given to an owner/person interested to object to the acquisition proceedings. Such right ought not to be taken away by the State Government sans real urgency. The strong arm of the government is not meant to be used nor it should be used against a citizen in appropriating the property against his consent without giving him right to file objections as incorporated Under Section 5-A on any ostensible ground. The dispensation of enquiry Under Section 17(4) has to be founded on considerations germane to the purpose and not in a routine manner. Unless the circumstances warrant immediate possession, there cannot be any justification in dispensing with an enquiry Under Section 5-A. As has been stated by this Court in Anand Singh (2010) 11 SCC 242, elimination of enquiry Under Section 5-A must only be in deserving and in the cases of real urgency. Being an exceptional power, the government must be circumspect in exercising power of urgency. 24. In Anand Singh (2010) 11 SCC 242, dealing with the issue whether the pre-notification and post-notification delay would render the invocation of urgency power void, this Court said that such delay would....
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....wer Under Section 17(1) and (4) of the 1953 Act. The state government, therefore, has to apply its mind before it invokes its power of urgency and dispensation of inquiry Under Section 5-A that the compliance of the mandate of Section 5-A may lead to precious loss of time which may defeat the purpose for which land is sought to be acquired. Any construction of building (institutional, industrial, residential, commercial etc.) takes some time and, therefore, acquisition of land for such purpose can always brook delay of few months. Ordinarily, invocation of power of urgency by the state government for such acquisition may not be legally sustainable. 28. In this case, as noted above, the preliminary notification Under Section 4 was issued on 01.5.1980. After lapse of about 7 years on 19.03.1987, one fine morning the state government issued declaration Under Section 6 without complying with the mandate of Section 5-A and in that declaration it was stated that it has invoked its powers conferred Under Section 17(1) read with Section 17 (4) of the 1953 Act and dispensed with the provisions of Section 5-A. Had the state government intended to hold and complete the inquiry Under Sectio....
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....all be made after the expiry of two years from the commencement of the 1981 Amendment Act. Sub-section (2) of Section 5 of the 1981 Amendment Act begins with non obstante clause. Section 5(2) of the 1981 Amendment Act thus mandates that no declaration Under Section 6 in respect of the notice issued Under Section 4(5) before the commencement of the 1981 Amendment Act shall be made after expiry of two years from the commencement of the said Act. The provision leaves no manner of doubt that two years' time prescribed for making declaration Under Section 6 in respect of the notice issued Under Section 4(5) prior to the commencement of the 1981 Amendment Act is mandatory and permits no departure. This is clear from the words "no declaration" and "shall be made" used in Section 5(2). The intention of the legislature admits of no ambiguity and it is clear that in respect of the notice issued Under Section 4(5) before the commencement of the 1981 Amendment Act, it is obligatory on the state government to make declaration on or before the expiry of two years from the commencement of the 1981 Amendment Act. The provision is imperative in nature and has to be followed as it lays down the ....