Mahadevappa Lachappa Kinagi & Ors vs State Of Karnataka & Ors

State of Karnataka and Ors. ...Respondents

O R D E R

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

1 Act (in short the "Act") was validly

invoked.

3. 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."

4. 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

2 grant of leave in presence of learned

counsel for the parties.

5. 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

3 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.

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6. 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.

7. 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

5 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

6 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.

9. 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

7 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

8 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. 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.

11. 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

9 before the High Court of Karnataka, which

was rejected by the learned Single Judge,

who found that the acquisition process was

proper.

12. This fact of moving the writ petition

practically challenging the proposal to

acquire the land was suppressed when the

present writ application was moved. 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

10 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.

13. 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

12 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. July 30, 2008. [AFTAB ALAM]

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