Mahadevappa Lachappa
Kinagi & Ors. Vs. State of Karnataka & Ors. [2008] INSC 1255 (30 July
2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION Interlocutory Application Nos. 1 and 2 of
2008 IN CIVIL APPEAL NO.4728 OF 2008 (Arising out of SLP(C) No. 22346 of 2007)
Mahadevappa Lachappa Kinagi and Ors. ...Appellants VERSUS State of Karnataka
and Ors. ...Respondents
ORDER
1.
Leave
granted.
2.
This
appeal is filed against the judgment and order dated 3rd of October, 2007
passed in Writ Appeal No. 834 of 2007 whereby the High Court had dismissed the
appeal of the appellants holding that in the facts and circumstances of the
case, the power under Section 17 of the Land Acquisition Act (in short the
"Act") was validly invoked.
3.
4.
5.
Before
we proceed further, we may note that at the time of issuing notice on the
respondents, this Court on 14th of December, 2007 passed the following order :-
"Issue notice. Status quo as on today shall be maintained."
6.
An
application for vacating the interim order was listed for hearing on 16th of
July, 2008 and the learned counsel appearing for the parties submitted before
us, on instructions, that instead of hearing out the application for vacating
the interim order, it would be fit and proper if the Special Leave Petition
itself was decided. Accordingly, with the consent of the learned counsel for
the parties, the SLP itself was taken up for hearing which was heard on grant
of leave in presence of learned counsel for the parties.
7.
The
appellants are owners of Sy Nos. 172/1A, 2A, 2B and 173/2 totaling 18.5 Acres
situated at Almel Village Sindagi Taluk in the State of Karnataka. During the
year 1962, due to over flow of Bhima river, Tharapura village was submerged.
The State Government acquired about 14 Acres of land in Sy No. 188, 189 and
190/2 of Almel Village in order to rehabilitate the families of Tharapura
village which was submerged by the over flow of Bhima river. On the said
acquired lands, the State Government had rehabilitated 85 families of Tharapura
village whereas 145 families of the said village were still not rehabilitated.
It is not in dispute that after rehabilitating 85 families as stated
hereinabove on the aforesaid acquired lands, another 145 families still were
residing in the Tharapura village including the appellants. In the year 1994,
technical sanction was given for the Bhima Lift Irrigation Project.
Accordingly, sanction was accorded to construct a barrage on the Bhima river,
for which final sanction was given in the financial year 2003-2004. Thereafter,
construction work began and this project was aimed to extend irrigation
facilities to 24,200 hectares of land. As a result of the detailed technical
status, it was found that the project, i.e., Bhima Irrigation Project, would
result in the complete submergence of Tharapura village owing to water spread
when the barrage is commissioned. For this reason, it was found imperative and
absolutely necessary to evacuate the villagers still staying in Tharapura
village. Accordingly, before commissioning the barrage, decision was taken to
rehabilitate another 145 families of Tharapura village in some other area.
8.
It
is not in dispute that construction work of the barrage is ready for operation.
At this stage, it was thought proper to rehabilitate 145 families, for which
lands were sought to be acquired. Under these circumstances, the commissioning
of the barrage on the Bhima river could not be started although it was
completed because the 145 families in the said village could not be shifted. To
meet this problem, the notification under Section 4(1) of the Act was issued on
10th of August, 2006 for acquiring the lands of the appellants namely, Sy Nos.
172/1A, 2A, 2B and 173/2 totaling 18.5 Acres.
9.
This
notification was under challenge before the High Court by way of a writ
application, which was dismissed by a learned Single Judge of the High Court
and the said order was affirmed by a Division Bench of the High Court. The
orders of the High court are now under challenge before us in appeal. The learned
senior counsel appearing on behalf of the appellants, Mr. Vasudev substantially
raised the submission before us that since the rehabilitation project was
pending since 1962, the emergency power under Section 17 of the Act, could not
have been exercised by the State Government in the year 2006. Accordingly, it
was contended by Mr.Vasudev, learned senior counsel appearing on behalf of the
appellants, that since there was no urgency in the matter to invoke emergency
provision for acquisition under Section 17 of the Act and normal procedure
ought to have been followed, the notification under Section 4 of the Act should
be quashed. In support of this contention whether emergency power under Section
17 of the Act could be invoked in the facts and circumstances of the present
case particularly after such a long delay, Mr. Vasudev strongly relied on a
decision of this Court in the case of Union of India and Ors. vs. Mukesh Hans
etc.(2004) 8 SCC 14, particularly on paragraphs 31 and 32 of the said Judgment.
10.
Mr.
Vasudev contended that since Section 17 provides that in cases where an
appropriate Government has come to a conclusion that there exists an urgency or
unforeseen emergency as required under Sub- Sections (1) and (2) of Section 17,
it may direct that the provisions of Section 5A shall not apply and if such
direction is given, then Section 5-A inquiry can be dispensed with and a
declaration may be made under Section 6 on publication of Section 4 (1)
notification and possession can be taken. Relying on these two paragraphs,
namely paragraphs 31 and 32 of the aforesaid decision of this Court, Mr.
Vasudev sought to argue that in this case, the High Court had failed to
consider that it was the duty of the authorities to come to a conclusion that
there exists an urgency or unforeseen emergency as required by Sub-section (1)
and (2) of Section 17 before such emergency provision could be invoked. Mr. Vasudev
learned counsel for the appellants further contended that the notification
under Section 4(1) read with Section 17 of the Act must be quashed as there was
nothing on the record to show that the State Government had made out any case
to invoke such emergency provision. There is no quarrel on this proposition at
all. It is true that if the Court comes to a conclusion whether there exists
any unforeseen emergency to invoke power under Section 17 of the Act, it was
the duty of the authorities to proceed with the normal procedure under Section
5A of the Act. We are, however, on the facts and circumstances of this case,
unable to rely on this observation of this Court in the aforesaid paragraphs of
this decision cited by Mr. Vasudev. In this case, we find that emergency power
under Section 17 was required to be invoked, as the admitted facts of the
present case, that on the lands initially acquired, only 85 families were
reallocated or rehabilitated.
11.
The
Tharapura village was going to be sub-merged after the construction of the
barrage and 145 families would be immediately shifted to somewhere else. In
view of this emergency and in view of the fact that the barrage has already
been completed and it is going to be commissioned, it was thought fit and
proper that the land, as noted hereinabove, should be acquired.
12.
It
cannot be forgotten that the commissioning of the entire project has been
held-up on account of the present appellants only. In fact, the appellants
challenged the resolution of the concerned Panchayat before the High Court of
Karnataka, which was rejected by the learned Single Judge, who found that the
acquisition process was proper. This fact of moving the writ petition
practically challenging the proposal to acquire the land was suppressed when
the present writ application was moved.
13.
The
rehabilitation of 145 families could be immediately required because of the
commissioning of the barrage on the Bhima river. Not only this, pursuant to the
acquisition of the lands in question, the respondents have awarded contract for
construction for Tharapura Rehabilitation Centre for providing civic amenities
as part of the Lift Irrigation Scheme, which is valued at Rs. 3,34,17,747/-. If
this contract is not permitted to be executed and works are not completed, the
145 families of Tharapura village cannot be shifted and the entire contract
amount will be wasted. This being the admitted position, we are unable to agree
with Mr. Vasudev that in the facts and circumstances of the present case, the
invocation of emergency power under Section 17 of the Act without following the
normal procedure was not proper.
14.
It
is no doubt true that Section 17 of the Act confers extraordinary powers on the
authorities under which it can dispense with the Normal procedure laid down
under Section 5-A of the Act in cases of exceptional urgency. It is also true
that such powers cannot be lightly resorted to except in case of real urgency
enabling the Government to take immediate possession of the land proposed to be
acquired for public purpose. In Union of India vs. & Ors. vs. Krishan Lal
Arneja & Ors. {(2004) 8 SCC 453], this Court has clearly laid 11 down that
Section 17 confers extraordinary powers on the authorities to dispense with the
normal procedure under Section 5-A of the Act if the authorities are of the
opinion that it was a case of exceptional urgency. In view of our discussions
made herein above to the extent that the barrage itself over the Bhima River
could not be commissioned and if such commissioning is done before
rehabilitating the 145 families of Tharapura Village which will be submerged on
such commissioning is shifted, the project would then also result in total
submergence of Tharapura Village. It is not possible to hold that this was not
an exceptional case where emergency power under Section 17 could not be
invoked. For the reasons aforesaid, we do not find any merit in this appeal and
the appeal is, therefore, dismissed. There will be no order as to costs. The
interim order granted on 14th December, 2007 stands vacated. In view of this
judgment by which the appeal itself has been disposed of, no order need be
passed on the application for vacating the interim order, it is also disposed
of as infructuous.
...................................................J.
[TARUN CHATTERJEE]
New
Delhi. .................................................J.
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