DERA PHALAULI v. STATE OF PUNJAB & ORS

Case Details & Bench

Court: High Court
Hon'ble Judges: N. L. Untwalia
A. P. Sen
Judgment Date: 1979-07-24
Court Decision / Holding: Appeal allowed; the High Court’s dismissal of the writ petition is set aside; the portion of the Notification issued on 23-8-1967 under Section 4 directing the exercise of power under Section 17 is struck down. The authorities may proceed further in the matter after giving the appellant an opportunity to file an objection under Section 5A.
Final Disposition: Appeal allowed.

Parties to the Case

Appellants / Petitioners

DERA PHALAULI

Respondents

State of Punjab & Ors

Legal Representation & Advocates

Counsels for Petitioners

• N. N. Keswani

Case Synopsis & Summary

DERA PHALAULI v. STATE OF PUNJAB & ORS concerns a notification under Section 4 of the Land Acquisition Act, 1894, and an accompanying direction under Section 17(4) dispensing with the mandatory hearing and objection requirements under Section 5A. The Government directed that Section 17 be applied on grounds of urgency and that Section 5A would not apply. The appellant contends that the notification does not state that the land is waste or arable, nor does it indicate any urgency to take possession, making the order dispensing with 5A legally defective. The Court recalls that for Section 17(1) to be applicable, (i) the land must be waste or arable and (ii) there must be an urgency to proceed with immediate possession, so the owner's right to object under Section 5A remains protected. In the instant case, the notification lacks any such specification, and the direction to proceed under Section 17 on the basis of urgency is not a complete fulfillment of the law. The Court allows the appeal, sets aside the High Court's dismissal of the writ petition, and strikes down the portion of the notification dated 23-8-1967 under Section 4 that directed invocation of Section 17. It leaves open the possibility of resuming steps after giving the appellant an opportunity to file objections under Section 5A.

Provisions of Law Cited

Land Acquisition Act, 1894 - Section 4Land Acquisition Act, 1894 - Section 5ALand Acquisition Act, 1894 - Section 17(1)Land Acquisition Act, 1894 - Section 17(4)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that the Notification under Section 4 of the Land Acquisition Act did not specify that the land was waste or arable nor that there was urgency; therefore dispensing with the requirements of Section 5A via Section 17(4) is not legally valid. The right to file objections under Section 5A should not be cavalierly interfered with, and the directive to invoke Section 17 on the grounds of urgency must meet the statutory prerequisites; otherwise the order is not a legal fulfilment of the law.

Contentions of Respondents

Not explicitly detailed in the text of the judgment excerpt. The respondents would rely on the statutory power under Section 17(4) to dispense with Section 5A where urgency exists, arguing that the Government can direct action under Section 17 in cases of urgency and that the right to object under Section 5A can be duly bypassed when legally warranted.

Extracted Judgment Text

Exact text extracted from official judgment records.

##### • #### - ' 93 DERA PHALAULI _v._ STATE OF PUNJAB & ORS . _July_ 24, 1979 [N. L. UNTWALIA AND A. P. SEN, JJ.] _Land_ _Acquisition Act,_ 1894 _Ss._ 4, _SA_ _&_ _17(4)-0rder issued under_ _S._ 17(4) _dispensing with provisions_ _vf_ S. _5A-Vafidity_ _of-Direction_ _to Co/icctor to take_ _action under_ S. 17 _on_ _g1ou11d_ _of_ _urgency-Not_ _a legal_ _and_ _con1plete_ _fulfiln1e11t_ _of_ _the requirenient_ _of_ _the law._ Allowin.~ the appeaJ, HELD: For n1aking the prov1s1ons of section 17(1) applicable: (a) the lP.nd in respet t of \vhic!i. the urgency provision is being rtpplied should be waste or arable fN1<l (b) there should be an urgency for taking irrimediate possession requirin~ dispensation of the right of the owner for filing an obji::ction under section _SA_ aqd this right should not be interfered in a ca:i;ual or cavalil!r manner. [94C, F] Jn the instant case the Notification under section 17(4) of the Act neither --·1 mentioned that the land is wute 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 fulfilment of the requirement of the law. [94E] 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. I) E - • The Order of the Court was delivered by UNTWALIA, J. In this appeal filed by certificate, several points have G l;een 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 i\1 our opinion must suco~ed in this appeal is as to whether even on the face of the Notification issued under Section 4 of Land Acquisition Act, 1894 (hereinafter called the Act), an Order under Sectiou 17 ( 4) II dispensing with the compliance with the provisions of Section SA was valiuly mad·~. The paragraph of the Notification which incorporated A B ### c D E . II G 94 SUPREME COURT REPORTS [1980] 1 S.C.R. 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 ill thls case on the grounds of urgency and provisions of section SA will 'not apply iu regard lo this acquisition." It is to be clearly understood that under Sub-Section ( 4), the appropriate Government may direct that the provision of Section SA shall not apply where in the opinion of the State Government, the provisions of Sub-Sectieh (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 ta1dng immediate posses5ion and so the right of the owner of the land for filing an objection nnder Section SA 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 fulfilment of the requirement of the law. It is to be remembered that the right of a person having auy interest in the property to file an objection under Section SA of the Act should not be interfered with in such a casual or cavalier manner as has been done in this case. For tke reasons •lated 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 Notificatipn 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 m""' # proceed further in the matter after giving an opportunity to the appel-' ' - Iunt of filing their objection under Section _SJ\._ Since the other side has not appeared, there is no order as to costs. N.V.K. _Appeal allowed._ _(_ ##### • l. #### ..