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Judgment
Antony Dominic, J.—Heard the learned senior counsel for the petitioners and the learned Government Pleader appearing for the respondents. Petitioners are impugning Ext.P1 notification issued u/s 4(1) of the Land Acquisition Act (in short ''the Act'') to the extent urgency clause u/s 17(4) of the Act is invoked. Pleadings in the writ petition show that by Ext.P6 requisition made by the additional 4th respondent, they sought acquisition of the properties of the petitioners, for the purpose of providing an entrance to the Angamaly bus depot of the KSRTC. Government, by Ext.P5 dated 9.3.2011, granted administrative sanction for the acquisition in question and the District Collector by Ext.P7 order dated 22.3.2011, authorized the 3rd respondent to carry out the land acquisition work. Subsequently, by Ext.P8 proceedings dated 5.8.2011, the Land Revenue Commissioner accorded sanction for invoking the urgency clause and to dispense with the enquiry as provided u/s 5A of the Act. It was accordingly that Ext.P1 notification was issued and published in the newspapers, invoking the urgency clause u/s 17(4) of the Act. In pursuance to Ext.P1, Ext.P2 notice under Rule 7(2) of the Kerala Land Acquisition Rules was also issued. It is at that stage this writ petition is filed.
The notification in question, as already stated, is for acquiring property of the petitioners for providing an entrance to Angamaly bus station. Ext.P3 sketch produced by the petitioners show that the property notified for acquisition is a strip of land belonging to them. This property along with the adjacent puramboke land, is sought to be made use of for providing the entrance. Petitioners submit that if the alignment presently fixed is slightly modified, a portion of their property can be excluded from acquisition and that by such exclusion, they will be able to save a well situated in their property from acquisition. It is stated that this contention of theirs could have been urged before the authorities, if an enquiry u/s 5A of the Act was conducted and according to the petitioners there is absolutely no urgency justifying invocation of power u/s 17(4) of the Act and to dispense with the enquiry u/s 5A. It is on this premise, this writ petition is filed.
A counter affidavit has been filed by the 3rd respondent, as also an additional affidavit. Apart from justifying the acquisition in question, the 3rd respondent is also attempting to justify the invocation of the power u/s 17(4) of the Act. According to the 3rd respondent, the bus stand has become a reality and the bus stand is situated in a place where there is traffic congestion and consequent accidents. It is stated that in order to ease the traffic congestion and to prevent future accidents, it is necessary to provide an additional access to the bus stand in question. It is contended that it was therefore, that the property is notified for acquisition and that considering the urgency of the situation, power u/s 17(4) of the Act has been invoked.
Petitioners have no case that the project does not involve any public purpose. They are also not aggrieved by the acquisition of their property to the extent it is required. They are only aggrieved by the invocation of power u/s 17(4) of the Act dispensing with the enquiry u/s 5A.
It is true that in cases of real urgency, enquiry u/s 5A can be dispensed with and the circumstances in which such power can be invoked has been indicated by this Court in Sharlet v. State of Kerala (2012 (3) KLT 73).
Insofar as the invocation of urgency clause is concerned, Ext.P8 is the proceedings of the Land Revenue Commissioner. It was by this order sanction has been accorded. In this order, after referring to the proposal made by the District Collector vide his letter dated 29.7.2011, and furnishing the details of the property to be acquired, the Commissioner has stated thus:-
The Commissioner of Land Revenue having examined the proposal and being satisfied that the Land is urgently required hereby directs in exercise of the power under/Sub Section (4) of Section 17 of the L.A Act, 1894 that the provision for hearing of objection u/s 5A shall not apply to the acquisition of the above said land for the above purpose as per the reference IInd paper above.
A reading of this order therefore, shows that the Commissioner has not independently applied his mind to the requirement of invoking the power u/s 17(4) of the Act. On the other hand, he has blindly accepted the proposal of the District Collector. In my view, such an order does not satisfy the legal requirements for invoking power u/s 17(4) as indicated by the Apex Court and by this Court in various judgments including the judgment mentioned above.
Even otherwise Section 17(4) of the Act can be invoked in cases where the necessity of urgent implementation of the project cannot brook any delay that is inevitable if an enquiry u/s 5A is conducted. The materials available in this case show that administrative sanction was granted in March, 2011 and 4(1) notification was issued only in September, 2011. Even thereafter, proceedings were continued only at a very slow pace. In the circumstances, I am not satisfied that this was a case to be proceeded dispensing with an enquiry u/s 5A of the Act. Therefore, I set aside Ext.P1 to the extent enquiry u/s 5A of the Act is dispensed with and direct the authorities to conduct enquiry u/s 5A and complete the proceedings on that basis. In order to expedite the matter, I direct that the petitioners will file their objections before the 3rd respondent within three weeks from today, in which event enquiry will be conducted and matter will be proceeded with in accordance with law thereafter.
Writ petition is disposed of as above.