(1) The petitioners are calling in question the validity of a notification issued by the government of andhra pradesh under section 4 (1) of the land acquisition act, 1984. By g. 0. Rt. No. 1119, dated. 18 - 8 80, the government proposed to acquire a total extent of ac. 31 - 29 cents in the nine survey numbers. Under the notification the power under section 17 (4) was invoked and the enquiry under section 5 - a was disposed with. Accordingly, the draft declaration was also published in the same gazette, dated 2 - 9 - 1980 the petitioners who are interested in some of those survey numbers, have filed this writ petition, and sri s. Vankata reddy, the learned counsel for the petitioners has urged the following contentions before me viz. (i) that the substance of the notification was not published in the locality, as required by section 4 (1) of the act and, therefore, the notification itself is invalid; (ii) that, since the acquisition is being made for the purpose of a "company" as delined by the act, the government ought to have adopted the procedure prescribed in part vii of the act; and (iii) that, there was absolutely no urgency behind the acquisition which warranted the invocation of urgency clause in section 17 (4) to dispense with the enquiry under sec. 5 - a he urgency clause has been invoked mechanically and without the government applying its mind to the relevant facts and circumstances of the case. All these contentions have been disputed by the learned advocate general, who appeared for the government, who has placed the entire record before me.
(2) With respect to the first contention, i must say the record conta. Ins material to show that the substance of the notification was published in the locality. Mr. S. Venkata reddy, however, sought to contend that the endorsement of local publication is obtained by the authorities after the filing of the writ petition and, in support of that contention, he wanted to rely upon the transcript of the allegad tape - recorded conversation between the village munsif and the tahsildar which, according to the learned counsel, proves that the said endorsement was obtained after the filing of the writ petition, with an ante - data. On behelf of the respondents, however, affidavits have been filed sworn to both by the tahsildar, as well as by the village munsif, denying tho said averments. The petitioners, indeed, have notified the tape containing the alleged conversation. Moreover, this dis. Puted fact cannot be gone into, or adjudicated in this writ petition because even if the tape is filed, further questions with regard to the identity of the voice, and as to who taped the said conversation and how. Will arise all these complicated facts cannot be investigated in this writ petition. I must, therefore, proceed on the footing that the evidence of the local publication is true. Accordingly the first contention is rejected.
(3) I also see no substance in the second contention of the learned counsel. It is true that the acquisition is beingmade for the 3rd respondent, viz. Academy of general and technical education, vijayawada, which fs. A society registered under the societies registration act, and which fails within the definition of company" contained in the act. But it is well settled by now every acquisition for the benefit of a company need not necessarily be only in accordance with the provisions of part vi. Even for a company, the acquisition can be made following the procedure applicable in the case of acquisition for a public purpose. In this case, the notification says that the acquisition is "for a public purpose, to wit, for construction of siddhartha engineering college". The record also discloses that the government has contributed a sum of rs. 100/ - towards the said acquisition. If so, i do not find any irregularity in the notification issued and the declaration made.
(4) Now coming to the third and the main contention. It is necessary to clear the legal aspect first, where a land is sought to be acquied under the provisions of the land acquisition act, the ordinary procedure is the issuance of a notification under section 4 (1) of the act, in the first instance, proposing to acquire the land. The persons interested in the land then get a right to object to the acquisition. They can point out why their land should not be acquired, and they may even point out that the very aquisitlon is not called for. After considering these objections, the appropriate authority has to take a decision whether to go ahead with the acquisition of that land, or drop it. If it is decided to go ahead with the acqaision. A declaration under section 6 has to be made, thereafter, notices are issued under sub - section (1) and sub - section (3) of section 9, and section 10 of the act, the claims filed by the persons interested are received, and an award is passed. Only thereafter the possession of the land is taken. But situations may arise which call for a departure form the ordinary procedure. The purpose for which the acquisition is being made rosy be urgent, and the possession of the land may be required immediately, it is to meet such situations that section 17 has been enacted. Sub section (1) , sub - section (2) (as amended by the madras amendment act, no. Xxi of 1948) , as well as sub - section (4) may now be set out: -
"17 (1) : - in cases of urgency whenever the appropriate government so directs, the collector, though no such award has been made, may, on the expiration of fifteen days from the publis cation of the notice mentioned in
section 9, sub - section (1) , tak - possession of any waste or arable land needed for public purposee or for a company. Such land shall thereupon vest absolutely in the government, free from all encumbrances. (2) in the following cases, that is to say (a) whenever, owing to any sudden change in the channe i of any navigable river or other unforeseen emergency, it becomes necessary for any railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a riverside or ghat station, or of providing a convenient connection with or access to any such station. (b) whenever in the opinion of the collector it becomes necessary to acquire the immediate possession of any land - - - (i) for the purpose of any library, or educational institution, or (ii) for the construction, extension or improvement of - - (a) any building or other structure in any village for the common use of the inhabitants of such village, or, (b) any godown for any society registered or deemed to be registered under the madras co - operative societies act, 1932, or, (g) any dwelling - house for the poor, or (d) any irrigation tank, irrigation or drainage channel or any well, or (e) any road, the collector may, immediately after the publication of the notice mentioned in sub - section (1) and with the previous sanction of the appropriate government, enter upon and take possession of such land, which shall thereupon vest absolutely in the government free from all encumbrances. (3) xx xx ,xx (4) in the case of any land to which in the opinion of the appropriate government, the
provisions of sub - section (1) or subsection (2) are applicable, the appropriate government may direct that the
provisions of section 5 - a shall not apply, and. If it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, sub - section (1)"
(5) A reading of the above provisions makes the following position clear: sub - section (1) empowers the government, in case of urgency, to direct the collector to take possession of the land (proposed to be acquired) on the expiry of fifteen days from the date of publication of the notice under section 9 (1) , provided it is a waste or arable land. Sub - section (2) (as amended by the madras amendment act xxi of 1948) provides that where the acquisition is for any of the purposes specified in that sub - section, the collector may, with the previous sanction of the government, take possession of the land immediately after the publication of the notice under section 9 (1). The collector need not even wait for 15 days from the date of such publication, nor is it necessary that the land should be an arable or waste land. On such taking of possession, whether under sub - section (1) or sub - section (2) , the land veste absolutely in the government. But it must be remembered that section 9 (1) notice can be published only after the declaration under section 6 is made and published; and section 6 declaration can be made and publishad only after the enquiry under section 5 - a is held. Now, the enquiry under section 5 - a may take some time. The experience shows that it takes quite a few months, and in some cases even years, and this protracted time may not necessarily be on account of the laches on the part of the authorities. There may be several reasons for such a delay. And the acquisition may be so urgent that it cannot wait for the period which may be taken up by the enquiry under section 5 - a. Hence sub - sec. (4) provides that in case of any land to which the provisions of sub - section (1) or sub - section (2) are applicable, the government may dispense with the enquiry under section 5 - a. Once the enquiry is so dispensed with, the declaration under section 6 can be made simultaneously with, or immediately following upon the publication of the notification under section 4 (1) ; end immediately following the publication of section 6 declaration, notice under section 9 (1) can also be published. It must, however, be noticed that sub - section (4) uses the expression 'may', ln other words the sub - section confers a power upon the government to be exercised where the circumstances call for the same. It is unnecessary for me, for the purpose of this writ petition, to refer to various decisions on this sub - section. Suffice it to mention that the formation of the opinion on the part of the government under sub - section (4) is subjective; and so long as it is formed fairly and on relevant material, the court would not interfere. Where, however, the formation of opinion is questioned, the government has to produce the material upon which it formed the satisfaction,. To satisfy the court that there was some material upon which it could have formed the requisite satisfaction. All this is set. Tied law. Now the particular aspect with which i am concerned in this case is, whether the scope of judicial scrutiny differs where the exercise of this power is questioned - in case of a land governed by sub - section (i) from a land governed by sub section (2). To answer this question one has to contrast the language of sub - section (1) with the language of sub - section (2). While sub - section (1) generally empowered the government to direct the collector to take possession of the land in cases of urgency, provided the land is waste or arable, syb - section (2) does not employ the words 'in cases of urgency'. On the other hand, it specifies certain purposes, and says that in cases where the acquisition is being made for those purposes, the collector may, with previous sanction of the government, take possession of the land irrespective of the fact whether the land is waste or arable, or not. This shows that the legislature has treated the purposes mentioned in sub - section (2) as inherently and specifically urgent. Not only the requirement of waiting for 15 days after the publication of the notice under section 9 (1) is dispensed with, but the further limitation under sub - section (1) that the land should be waste or arable is also not provided. While under sub - section (1) the government has to direct the collector to take possession, under sub - section (2) the collector himself may take possession - no doubt, with the previous sanction of the appropriate government. Now coming to sub - section (4) it provides for dispensing with the enquiry under section 5 a. In case of both sub - section (1) as well as sub - section (2) but, it should be obvious that where the purpose of acquisition is one of those mentioned in sub section (2) , the court while scrutinizing the validity of the exercise of power under sub - section (4) , should keep in mind the fact that the legislature has recognised those purposes as inherently and specially urgent. To put it differently, not only has the court to keep in mind that the satisfaction is subjective on the part of the government, but it must also have regard to the additional circumstance that the purpose of acquisition is one recoginsed by the legislature itseif as inherently urgent. It is for this reason that a bench of this court (to which i was a party) held in w. P. No. 5842/1978, disposed of on 22 - 3 - 1979 - dealing with a case of acquisition of land for providing house sites to the poor - that the invocation of urgency clause and the dispensing with of the enquiry under section 5 - a cannot ordinarily be questioned in such cases.
(6) Now, in this case the acquisition isforona of the purposes mentioned in sub - section (2) , viz. , for the purpose of an educational institution; and this fact must be kept in mind while examining the contention of the learned counsel for the petitioners that there was really no urgency behind the acquisition. And that, the urgency clause has been invoked mechanically, and arbitrarily.
(7) Sri s. Venkata reddy, the laarned counsel for the petitioners, submitted that the government never applied its mind to the facts of the case, nor did it form the requisite opinion. According to him, merely because the 3rd respondent institution requestad that the urgency clause should be invoked, the government automatically invoked tha same, with out ascertaining or varifying whether the need ot the institution is real and urgent. On the other hand, the learned advocate general contended that the government invoked the urgency tlause only after being satisfied about the existence of urgency, on the basis of the reports submitted by the district collector and that, it is not necessary that government should record in writing that it is a case of urgency before it invokes its power under section 17 (4).
(8) The file, b no, 9877 - 79 from the office of the sub collector vijayawada, discloses the following facts; by its letter dated 18 - 8 - 1979 addressed to the sub collector, vijayawada the 3rd respondent institution intimated the latter that it has been started for the purpose of starting educational institutions with an orientation for vocational training that it has already sponsored three institutions, namely an arts and science college, called 'siddhartha college'; a public school with english medium of instruction, called the veera. Machaneni paddayya siddarlha public school', and an engineering college which is the first private engineering college in the state. It was stated further that tha engineering college is accommodated in the buildings of the slddartha arts college; that the institution has acquired about 50 acres of land in kanuru village limits for putting up the buildings for the engineering coliege; that, a further extent of ac. 23. 58 cents is already covered by an agreement of sale in its favour and that, m/s. K. C. P. Ltd. Vuyyuru have gifted an extent of a. C 11 - 57 cants abutting the vijavawada - machilipatnam road and thus, they are having a total extent of ac. 84. 72 cents. It was stated that the land thus aqquired is insuificient for the engineering college judged by any other engineering standard and compared with any college in the state, and that for putting up hostels for the students and accommodation for teaching and non teaching staff, they require more area. The 3rd respondent, therefore, requested that an extent of ac 38 58 cents which is stuated in between and ad jo ning the lands acquired by them, may be acquired under the land acquisition act, to make a compact block of lands. They enclosed a site plan to the said application, showing the lands already acquired and also the lands which the institution wanted to be acquired under ths land acquisition act. By a subsequent letter dated 5 - 12 - 1979 certain change was effected in the lands to be acquired. Coming to know of these proposals, some of the petitionars suomitted an application on 6 - 12 - 1979 to the sub collector, objecting to the proposed acquisition and setting out reasons why the lands should not be acquired. Since no notification under section 4 (1) wa. Issued the 3rd respondent wrote to the sub collector, on 22 - 3 - 1980 stating inter alia "we are in urgent need of the lands for which we have applied for acquisition as we have to provide adequate accommodation to the engineering college buildings. Laboratory, auditorium, hostels to students etc. In the immadiate future. As tha lands are required for educational institution, ie. Siddhartha engineering college, we request that the acquisition proposals may be speeded up by invoking the urgency clause under the land acquisition act. " on 26/28th december 1979 the tahsildar, vijayawada, wrote to the sub collector stating interalia: "i am convinced with the request of the institution due to the reason that if the emergency provisions are not invoked and the consequential steps are not taken for the immediate notification of d n and d. D. , there is every likelihood of boosting up the value of the lands in the vicinity by entering into fictitious sales and ultimately thwarting attempt to acquire the lands by entering into feigned and manipulated agreements. It is therefore considered that the enquiry under section 5 - a of the land acquisition act be dispensed with. In view of the above, i submit herewith the d. N. And d. D. , proposals in respect of the above survey numbers for an extent of ac. 31 - 29 cents, dispensing with the enquiry under section 5 - a invoking emergency provisions. "
(9) On 4 - 4 - 1980, the sub - collector, in turn, forwarded the draft of notification under section 4 (1) , and declaration under section 6, to the collector, krishna, "for acquiring an extent of ac. 31. 29 cents in kanuru village, invoking the urgency clause. ". Meanwhile it appears, a report was called for from the tahsildar on the objection - petition filed by the petitioners. The tahsildar submitted his report to the sub collector on 8/11th april, 1980, which appears to have been forwarded by the sub - collector to the collector, krishna, in turn. Ultimately, on 22 - 4 - 1s80 the collector, krishna wrote to the government requesting it to approve the draft notification and draft declaration proposals, invoking the urgency clause. It would be relevant to sec out the last three paragraphs of the letter: -
"in the above circumstances, i submit herewith the draft notification and declaration proposals invoking the urgency clause under
section 17 (2) of the land acquisition act and request that the same may kindly be approved and sent for publication in the a. P. Gazette, further i request that an amount of rs. 100/ - may be sanctioned towards the part of government contribution before approving the declaration under
section 6 of the land acquisition act to validity (validate?) the acquisition. An acquisition of land for private polytechnic was considered a public purpose. (a. I. R. 1962 page 352)."
(10) The government file relating to the impugned notification shows that, after receiving this letter, the draft notification and the draft declaration were approved by the joint secretary to government, education department at that stage, however a representation was submitted by one of the petitioners to the hon'ble minister for technical education. Government of andhra pradesh, hyderabad, objecting to the acquisition of some of the lands proposed for acquisition. On this application, the hon'ble minister called for a report. The record contains another letter from the collector of krishna, addressed to the secretary to government, dated 1 - 7 - 1980 dealing with the objections raised in the objection - petition aforesaid, and setting out reasons why the said objection - petition should be rejected. The letter states further:
"the urgency clause is invoked as the land is required for educational purpose which is the urgent need of the growing population of vijayawada city. Hence the version of the petitioner on this aspect is liable for rejection."
this observation was made by the collector because, in his objection petition, one of the petitioners sri k. Purneswara rao, had stated inter alia that 'no reason was given to reason to urgency clause under
section 17 (2) of the land acquisition act. ' dealing with this objection the collector stated further that since the acquisition is for the purpose of the 3rd respondent which is a public institu - tion recognized by the government, and governed by the rules and regulations prescribed by the government, no one can deny that it is a public purpose. He also pointed out that the acquisition is for meeting the educanonal needs of the general public. With respect to the allegation of the petitioner that the 3rd respondent institution is collecting huge amount towards capitation fees, the collector submitted that it is not proved by concrete proof. For the several reasons mentioned in the letter, the collector recommended that the objection - petition may be rejected. It is only alter receiving this report that the government finalized the draft notification and the draft declaration, and sent them for publication.
(11) The above record shows that the government did not act either arbitrarily or mechanically in this matter. As pointed out by the collector the need of an educational institution is an inherently urgent need indeed, the collector specifically referred to sub section (2) of section 17 in his letter dated 22 - 4 - 1960. One of the objection - petitioners, sri purneswara rao, also understood in the same sense, because in his objection - petition submitted to the government (ie. To the hon'ble minister for technical education) on 5 - 5 - 1980, he too referred to sub seciion (2) of section 17. The collector repeatedly stated in his letter that the 3rd res. Pondent institution meets the educational needs of the public and that such a need is an urgent one. As pointed out above, even after the joint secretary to government approved the draft notification which, inter alia, invoked the u'gency clause, the government on receiving the objection petition of one of the petitioners herein, called for yet another report from the collector, and only after receipt of the said report, finalized ther notification and published it. Mr. S. Venkata reddy, however, relied upon the statement in we letter of tha tahsifdar, dated 26/28th december, 1979 wherein the tansildar recommended for invoking the urgency clause as otherwise, in his opinion, there was every likelihood of boosting up of the value of the lands in the vicinity by entering into ficttious sales and ultimately thwattirg the very attempt to acquire the lands, by the petitioners entering into feigned and manipulated agreements. It is submitted that this certainly cannot furnish a valid ground for invoking the urgency clause. The criticism is not unjustified. But, it makes no difference to the result of this case, because it is not the opinion of the tahsildar that counts, but the opinion of the government. The reasons set out by the tahsildar cannot be stta chted any value. Bacuase it is ultimately tha reasons given by the corrector which weighed with the government in invoking the urgency clause, the collector, in his letter dated 22 - 4 - 1980, and the letter dated 1 7 - 1980 - se out spec fically the reasons why the urgency clause should be invoked and these ware apparently agreed to by the government it cannot ba suggested that the reasons given by the collector in the said letters for invoking the urgency clause are either not relevant, or not germane. In view of the fact that the land is acquired for the pur - pose of an educational institution, which is one of the purposes recognised in sub section (2) of section 17 (as amended by the madras amendment act no. Xxi of 1948) the reasons set out by the dist. Collector in his aforesaid letters are perfectly legitimate and relevant. I am, therefore, unable to agree with the learned counsel for the peiitioners that the invocation of the urgency clause is arbitrary, or mechanical in this case. The record discloses that the government acted neither in heste, nor mechanically, but only after due and proper verification.
(12) While on this aspect, it would be relevant to refer to the plan submitted by the 3rd respondent, which largely agrees with the plan submitted by one of the objection petitioners, before the authorities. According to this plan, the lands which are now sought to be acquired are si uated either in the midst of the lands already acquired by the institution, or are abutting the same. It is argued by the advocate general that unless these pockets of land, situated in between the lands already, acquired by the institution, are acquired they cannot make a proper and full use of the lands already acquired. The force of this argument cannot be disputed. Mr. S. Venkata reddy submitted that there are other lands belonging to a temple which are situated in between the lands already acquired by the institution and that so far no steps have been taken to acquire those lands. He submitted that it would have been more appropriate if those lands had been acquired first, and then the petitioners' lands the learned advocate. General replied to this, stating that even those lands are now sought to be acquired by issuing another notification under the act. Be that as it may, i cannot agree nor is it possible for me to say, that the government ought to have acquired the temple lands first, and then alone it should have come to the petitioners' lands. All i am concerned with in this case is, whether the invocation of the urgency clause is warranted, cr not: and, as stated above, it cannot be said in this case that the government acted mechanically or arbitrarily.
(13) .for the above reasons, the writ petition fails and is, accordingly dismissed but, in the circumstances, without costs. Advocate's fee rs. 150/ -