Kattamreddi Radhakrishna Reddy v. Dist. Collector, Nellore

(1) The petitioners seek the quashing of a land acquisition notification issued by the district collector nellore, on 10 - 2 - 1976 under section 4 (1) of the land acquisition act, 1894 (hereinafter referred to as 'the act') proposing to acquire the lands of the petitioners for purpose of providing house - sites, to the harijans of edagalli village of nellore district. The district collector nellore, by means of the aforesaid notification had not merely notified his intention to acquire the aforesaid lands but had also dispensed with the inquiry contemplated normally to be held under section 5 - a of the said act. The petitioners' challenge is to the validity of the entire notification including that part of it dispensing with the inquiry to be conducted under section 5 - a of the act.

(2) It la beyond doubt that acquisition of land for providing house - sites for construction of houses for harijans falls under the descrip tion ofpublic purpose. " it is equally clear that the state has power to acquire private lands for public purpose. Now the power of the state to acquire lands for public purpose is embodied in and regulated by the provisions of our land acquisition act, 1894 of 1894 as amended from time to time. As a piece of existing law, the land acquisition act, 1894 hitherto enjoyed certain amount of constitutional immunity but witn the details of which we are not presently concerned. The only question which this court should examine in this case is whether the state power of eminent domain embodied in the aforesaid act is exercised by the district collector, nellore in this case in accordance with the provisions of that statute.

(3) The petitioners challenge the proposed acquisition on two grounds. Firstly they say, that petitioners 3 to 9 are small and marginal farmers who are entirely dependent for their existence upon the cultivation of small extents of lands and the acquisition of these lands under these impugned proceedings would uproot them and their families rendering them destitute. The petitioners' contention is that excepting in the rare cases of absolute necessity the state is without power to use its powers of eminent domain to bring about these catastrophic consequences on some of its citizens. The petitioners say that there are large extents of government poramboke lands available in the village for being used as house - sites for the harijans and that therefore, the afore - mentioned catastrophic res. Ults should have been avoided by the state by using those government poramboke lands. They argue that when such large chunks of lands are available it would be an unreasonable exercise of statutory power for the government to deprive the petitioners of their small holdings rendering them destitute. The petitioners also challenge, the action of the district collector dispensing with the statutory inquiry contemplated normally to be held under section 5 - a of the act, on the ground that dispensing with the inquiry contemplated to be held under section 5 - a of the act. Was done in this'case by the collector mechanically and without applying his mind. The patitioners a gue that section 5 a inquiry is based upon a basic and fundamental principle that holds no right to private property shall be affected except in accordance with the principles of natural justice. They, therefore, argue that such a principle can only be dispensed with in cases of real and genuine urgency and not as a matter of mechanical and official routine.

(4) The aforesaid notification issued by the collector under section 4 (1) of the act, in parts, reads as follows: -

"that the lands specified below, are needed for a public purpose to wit, for provision of house - sites to harijans of edagalli."

"under sub - section (4) of section 17 of the act, the district collector nellore further directs that in view of the urgency of the case, the provisions of section 5 - a of the act shall not apply to the acquisition of the waste or arable lands specified below."

The legal question that the above dispensing part of the notification raises for consideration is whether the afore - mentioned acquisition for the stated purpose of providing house - sites to harijans can be ragarded, in the circumstances of this case, as so urgent as to justify the action of the district collector dispensing with the inquiry contemplated normally to be held under section 5 - a of the act. As the language of section 5 - a of the act has vital bearing on this question, let us read section 5 - a of the act.

"5 - a (1) any person interested in any land which has been notified under section 4, sub - section (1) as being needed or likely to ba needed for a public purpose or for a company may, within thirty days after issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. (2) every objection under sub - section (1) shall be made to the collector in writing, and the collector shall give the objector an opportunity of being heard either in person or by pleader and shall after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the appropriate government together with the record of ' the proceedings held by him and a report containing his recommendations on the objections. The decision of the appropriate government on the objections shall be final"

A reading of the above provisions of section 5 - a of the act would clearly show that the statute treated the holding of an inquiry as a normal and an essential part of the acquistion process under the act. Section. 5 - a provides that any person interested in any land which has been notified under section 4 (1) of the act to be acquired may object to the acquisition by putting in his written and orai objections. He may appear through a lawyer, because the statute accords to these proceedings the high status of quasi - judicial standing by recognizing the existence of a situation of lis. Tha collector, is therefore, put under an unmistakable duty to hear the objector either in person or through his lawyer and to honestly and earnestly consider those objections objectively. This clear procedure provided by section 5 - a of the act and which the statute intends to rba followed normally is regarded as a vital and normal part of the statutory mechanism for land acquisition. Such a procedure is made available to the land - holder as a shield of his protection against otherwise uncontrolled powers of the local officers. Its purpose is to enable the landlord to object to and to obstruct on reasonable grounds the acquisition proposed by the collector or the state government. The statute is not unaware of the small delay. But the paying of this little price to the land - owner is not regarded as too high because the ultimate decision to acquire or to drop acquisition is stilleft with the state and the genuine state interests would not be affected. No limits on the grounds of objections that a land - holder might urge are imposed,. For example, the objector can plead that the acquisition would render him landless. He can show that suitable alternative lands are avail, able to subserve the public purpose. He may show that acquistion is malafide and unreasonable. The width of the langauge of the section shows that not only the owner of the land but even a neighbour of the proposed1 land can object to its acquisition. The clear intention of this provision enacted for the first time in the year 1 923 is to take away the ll - effects of the decision in ezra v. Secretary of state (1) 7 calcutta weekly notes 249. And to protect the land - holder from the possible arbitrary acts of the state authorities seeking to acquire the land. Judicial interpretation could have implied this limitation on the state power to acquire but as that could not be the legislature had intervened. It may be mentioned that this provision is in conformity with the basic principles of fairplay and natural justice as recognized by the old english cases. In the well - known case of cooper v. Wandsworth (2) 14 common bench reports (ns) 103, it has been laid down long years ago that principles of natural justice would apply to and inhibit any state action seeking to affect the pr. Operty rights of the citizen. The recent english decisions notable among which are ridge v. Baldwin (3) (1964) a. C 40 and dur - yappah v. Fernando (4) (1967) 2 all er. 152 have referred to this well - known decision with approval. In our high court, torison products ltd v. Director of industries (5) (1969) i an. W. R. 243. Where it was laid down that the right to private property cannot be affected without the holder thereof being given an opportunity to make his representation referred to and followed the above decisions. It is beyond doubt therefore, that section 5 - a of the act is not a legislative freak buf part of a uvilized jurisprudence. This principle, however, doss not mean and in fact it never meant that in all circumstances and under all conditions the land - holder should get a prior notice before his right to property is affected, that is not the meaning of the principles of natural justice. As it has been recently said by this court in sreerama engineering contractors v. Department of space (6) air 1981 a. P. 165. The application of principles of natural justice may be excluded where its application would turn it into a stumbling block for the efficient and effective exercise of state power. It would however mean that application of principles of natural justice should - be treated as the rule and its exclusion as an exception. So long as the legitimate state purposes are not affected by its application the principles of natural justice shall not be excluded. The scheme of the act is based on this. The provisions of section 17 of the act and the subsequent madras amendment affected to that section by act no. 21 of 1948 would clearly illustrate the above point. Section 17 clause 7 provides for acquiring absolutely any waste or arabla land even before an award is made provided it is a case of urgency section 17 cl. 2 provides for the emergency acquisition of land necessitated by a situation arising out of sudden change in the channel of any navigable river or other, unforeseen emergency making it necessary 'or any railway administration to acquire the land immediately for the mantsnance of their traffic. It was only to such types extends, inquiry under section 5 - a was originally permitted to be excluded. But by act no. 21 of 1948 the state of madras amended section 17 clause 1 empower - jjig the collector to acquire land without following section 5 - a procedure in some other cases of urgency also. One of them is the case of immediate possession of any land needed for the cunstruciion, extension or improvement of any dwelling - house for the poor. But tnis section requires that in the opinion of the collector it must be necessary to so acquire the land witnout holding section 5 - a inquiry. The aforesaid provisions of section 17 of the act as originally enacted or as amended by the madras act are clearly exceptions to the genera! art - d universal rule of fair - play embodied in section 5 - a which still continues to be on the statute book. It follows that on normal interpretation the collector should ordinarily follow the general rule contained in section 5 - a and resort to the exception only incases of real urgency - so long as section 5 - a continues to be on the statute book. It becomes of the statutory duty of the collector in a case like this to show and of this court to examine the existence of the facts and circumstances which in his opinion, makes it necessary to acquire land dispensing with section 5 - a inquiry, ft is well known that the words "in the opinion of the collector", occurring in the madras amendment do not mean that "if the collector thought it fit". If is therefore not legally sufficient for dispensing with section 5 - a that the collector thought it an urgent case. For the exercise of this extraordinary and exceptional power of dispensing with action 5 a, the existence of objective facts would be a precondition ' (see ross - clunisv. Papado - poullos (1958) 2 all er. 23) and attorney general for canada v. Hallett (1952) a,c. 427.) the question therefore is whether those objective facts are existing in this case. In this case the lands are sought to be acquired not to be constructed upon immediately by the government. They are sought to be acquired to be handed over to the harjan beneficiaries so as to enable them to construct houses by themselves. Neither the notification, nor the counter filed in the case, rof the records produced, before me explain how the holding of an inquiry under section 5 - a would unduly delay the construction of those houses by the harijans in fact, i,do not find from the record that the authorities had ever directed their mind to that question. Nor, did the authorities explain how the giving of a notice under section 5 - a wouid unreason ably delay the construction of the houses. From this total failure to explain the circumstances under which section 5 - a inquiry had come to be dispensed within this case, i am reluctantly led to hold that the collector acted mechanically and as a matter of administrative routine without applying his mind to the provisions of law as applied to the facts of the case - i may mention that i have not come across even one single case where section 5 - a inquiry has not been dispensed with, although it is notoriously known that in several cases of land acquisitions years after the land has been acquired no construction had been even started. In these circumstances i am clearly of the opinion that dispensing with of section 5 - a inquiry in this case is done illegally and mechanically. But it has been argued by the learned government pleader that the very purpose of acquisition for providing house - sites for the harijans would attract the application of the aforementioned madras amendment and empower the collector to dispanse with section 5. A inquiry. I must say that this is not a matter for emotion, but is purely a matter for legal reasoning. This argument of the learned government pleader although frequently heard in the corridors of this court in which i vigorously foot - stepped for over twenty - five years, cannot ba supported either on the basis of the madras amendment or any decided case. Formation of an opinion by the collector is made a precondition by the madras amendment for invoking the urgency clause. As a matter of law, existence of objective facts is a condition precedent for the valid formation of such a'n opinion. In the above referred first privy council case arising from cyprus, lord morton said, "if it could be shown that there were no grounds on which the appellant could be so satisfied, a court might infer either that he did not hones'ly form that view or that in forming it, he could not have applied his mind to the relevant facts. " the words which the privy council was interpreting n the cyprus case were "satisfied himself. " similarly, in the above canadian case, the privy council interpreting the words, "he may consider necessary" observed, "that does not allow him to do whatever he may feel inclined, for what he does must be capable of being related to one of the prescribed purposes. " it is therefore clear that the language of the madras amendment "whenever in the opinion of the collector it becomes necessary to acquire the immediate possession of any land needed for the construction, extension or improvement of any dwelling - house for the poor' does not mean that whenever the collector thinks he can dispense with section 5 - a, he can do so. Nor is there any judicial authority in support of that view. Objective fscts must be shown to have been existing warranting the dispensing with section 5 - a inquiry, although this court would not measure the degree of urgency by substituting its judgment for that of the collector. In this case, as no objective facts have been brought to the notice of this court justifying the dispensing with section 5 - a inquiry, i hold that the action of the collector dispensing with section 5 - a inquiry is illegal. Mechanical dispensing with section 5 - a inquiry and illegal authorization of interference with the citizen's right to property contrary to the provisions of the statute would expose the collector to claims for damages.

(5) What i said above appears to me to be firmly laid down by a judgment of a division bench of this court. In nunna ramanna v. The collector, west godavari, eluru (7 1977 (2) a. P. L. J. 289. The learned judges observed that,

"there must be some material on which the authority concerned can form its opinion on the need to dispense with the inquiry under section 5 - a of the act. What is imperative is the existence of some material to form a subjective opinion. Its sufficiency cannot be canvassed before a court."

For all the aforesaid reasons, i hold that the collector's notification in this "case dispensing with section 5 - a. Inquiry is illegal and ultra vires of his powers.

(6) Then remains the first ground of petitioners' objection to the acquisition. This part of the petitioners' case is that among them 3 to 9 are all small and marginal farmers. They assert in their petition and it was not denied in the government's counter that the third petitioner has only one acre of wet land; the fourth petitioner has only a very small extent of land the entirety of which is covered by the present acquisition; the fifth petitioner would be left after the present acquisition only with ac. 21/2 of wet fand and the sixth petitioner would be left only with ac. 1 - 30 cents of wet land after the present acquisition while the seventh petitioner would be left with ac. L - 00 of wet land after acquisition; the eighth and nineth petitioners would be left with ac. I - 20 cents of wet land each after their dry land was acquired. These undenied facts which should be taken to be correct for the purpose of this writ petition show that these petitioners would, as a result of these acquisition proceedings, become if they were already not, small farmers. Most of them must be eking out their miserable livelihood out of these small bits of land. The money which they would undoubtedly get under these acquisitions would be of no use to them in providing them with alternative occupation. They ware born to no estate nor bred to any occupation except agriculture - that is the raason why tha state government in its memo no. 1287/ci/ 74 - 2, dated 31st may, 1974 chided the collectors not to acquire lands from small farmers. That memo in parts reads: -

" that there are complaints that the lands belonging to small land holders with uneconomic holding have come under acquisition proceedings whereas the adjacent lands belonging to the big landlords remain untouched. The collectors are requested to keep the spirit behind such allegations in view at the time of instituting land acquisition proceedings. Poor persons with meagre land holdings (less than 2 to 2 1/2 acres) may generally be riot touched unless otherwise inevitable for the purpose of maintaining the rule of proximity and a vicinity to the main village."

In terms of the aforesaid memo1287 dated 31 - 5 - 74 the acquisition in the present case of the lands of the petitioners 3 to 9 cannct clearly be justified. But the 'question that arises is whether such acquisition can be regarded as legally untenable. There is no doubt that the act does not impose any express limitation on the powers of the state to acquire private lands for a public purpose. From the absence of such express limitations, alone it does not follow that law did not intend to impose any implied limitations also. Literally construed, the act would enable the collectors to acquire lands even from smallest farmer. But it is well known that from the absence of express limitations alone, courts would not infer an unlimited statutory power. On the other hand, courts have found limitations even in sweepingly worded statutes of wide amplitude. Every conferment of statutory power carries with it its own limitations of purpose and restrictions of procedure. The classic example of an implied "limitation is to be found in the well known rule that no statutory power can be exercised melafide. S:milarly. Courts have implied other limitations on the exercise of statutory power such as the limitations that power should be exercised honestly and reasonably. (see associated provincial picture house ltd v. Ednesbury corporation, (1948) i k. B. 223.) can it be said in this case that the district collector, nellore, has honestly and reasonably exercised his statutory power of acquisition? an honest exercise of power would require the collector to bring his mind to bear upon all relevant facts and circumstances. Reasonable exercise of power would similarly require the collector to take an over - all view of the entire situation to avoid, if possible, a statutorily unintended misery on the small farmers like the petitioners 3 to 9. Now the acquisition of the lands in this case is for the avowed purpose of helping the poor harijans. Such a purpose could have been easily achieved by using the government poramboke lands which are admittedly available in the village. But it is however argued that the harijan beneficiaries are not willing to go and occupy the government poramboke lands. This explan ation appears to me to be not tenable. The act has not put the power of absolute veto in the hands of the beneficiaries. There is no finding that poramboke lands are not suitable for dwelling houses. Harijan preferences alone cannot ba decisive in a matter like this. In my opinion, the government will be acting illegally if it mechanically acts upon the beneficiaries' scale of preference for the lands. I do not find any justification in the statute or its purpose for the government attempting to surrender and succumb to the mere wishes of the harijan beneficiaries. Sri justice v. Pardhasaradhy ruled so. Particularly where those wishes are working to the ruin of some other land owners, the governmentauthorities must act independently and objectively. For this reason also, i hold that the acquisition of the lands of the petitioners 3 to 9 is illegal.

(7) For the aforesaid reasons, i allow this writ petition. But as neither the petitioners' counsel nor the petitioners ware present at the time of hearing. I make no order as to costs. Advocate's fee rs. 150/ -.