Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
PETITIONER:
DERA PHALAULI
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT24/07/1979
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
SEN, A.P. (J)
CITATION:
1979 AIR 1594 1980 SCR (1) 23
1979 SCC (4) 485
CITATOR INFO :
RF 1981 SC 818 (61)
ACT:
Land Acquisition Act, 1894 Ss. 4, 5A & 17(4)-Order
issued under S. 17(4) dispensing with provisions of S. 5A-
Validity of-Direction to Collector to take action under S.
17 on ground of urgency-Not a legal and complete fulfillment
of the requirement of the law.
HEADNOTE:
Allowing the appeal.
^
HELD: For making the provisions of section 17(1)
applicable: (a) the land in respect of which the urgency
provision is being applied should be waste or arable and (b)
there should be an urgency for taking immediate possession
requiring dispensation of the right of the owner for filing
an objection under section 5A and this right should not be
interfered in a casual or cavalier manner. [94C, F]
In the instant case the Notification under section
17(4) of the Act neither mentioned that the land is waste or
arable nor that there was urgency to take recourse to the
provisions of the Act. [94D]
The direction given to the Collector to take action
under Section 17 on the ground of urgency is not a legal and
complete fulfillment of the requirement of the law. [94E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2317 of
1969.
From the Judgment and Order dated 29-8-1968 of the
Punjab and Haryana High Court in Civil Writ No. 2713/68.
N. N. Keswani for the Appellant.
The Order of the Court was delivered by
UNTWALIA, J. In this appeal filed by certificate,
several points have been urged by learned counsel for the
appellant. We do not consider it necessary either to state
all the points or discuss them as none of them except one
has got any substance. The point of substance which in our
opinion must succeed in this appeal is as to whether even on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
the face of the Notification issued under Section 4 of Land
Acquisition Act, 1894 (hereinafter called the Act), an Order
under Section 17(4) dispensing with the compliance with the
provisions of Section 5A was validly made. The paragraph of
the Notification which incorporated
94
apparently the order exercising the power under Sub-Section
(4) of Section 17 of the Act reads as follows:-
"Further in exercise of the powers under the said
Act, the Governor of Punjab is pleased to direct that
action under Section 17 shall be taken in this case on
the grounds of urgency and provisions of section 5A
will not apply in regard to this acquisition."
It is to be clearly understood that under Sub-Section
(4), the appropriate Government may direct that the
provision of Section 5A shall not apply where in the opinion
of the State Government, the provisions of Sub-Section (1)
or Sub-Section(2) are applicable, otherwise not. For making
the provisions of Sub-Section (1) applicable, two things
must be satisfied that the land in respect of which the
urgency provision is being applied is waste or arable and
secondly that there is an urgency to proceed in the matter
of taking immediate possession and so the right of the owner
of the land for filing an objection under Section 5A should
not be made available to him. In the portion of the
Notification which we have extracted above, it is neither
mentioned that the land is waste or arable nor has it been
stated that in the opinion of the Government, there was any
urgency to take recourse to the provisions of Section 17 of
the Act. A direction to the Collector has been given to take
action under Section 17 on the ground of urgency but this is
not a legal and complete fulfillment of the requirement of
the law. It is to be remembered that the right of a person
having any interest in the property to file an objection
under Section 5A of the Act should not be interfered with in
such a casual or cavalier manner as has been done in this
case.
For the reasons stated above, we allow this appeal set
aside the order of the High Court dismissing the appellant’s
writ Petition, allow the writ Petition and strike down that
portion of the Notification issued on 23-8-1967 under
Section 4 of the Act which directed the exercise of power
under Section 17. The authorities, if so advised, may
proceed further in the matter after giving an opportunity to
the appellant of filing their objection under Section 5A.
Since the other side has not appeared, there is no
order as to costs.
N.V.K. Appeal allowed.
95