JANAJAGRATHA (PEOPLE'S) VIGILANCE XIV/304, THORAPALAYAM, PALAKKAD; CHINNAMUTHUSWAMY GOUNDER S/O SUBBAYYA GOWDER v THE STATE OF KERALA, THE LAND REVENUE COMMISSIONER, PALAKKAD, THE DISTRICT COLLECTOR PALAKKAD, THE SPECIAL TAHSILDAR LA (G) NO II, PALAKKAD

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938 WP(C).No. 10799 of 2013 (Y) ---------------------------- PETITIONER(S)/PETITIONER: ------------------------ 1. JANAJAGRATHA (PEOPLE'S)VIGILANCE XIV/304,THORAPALAYAM, PALAKKAD,678001, REP BY ITS SECRETARY,DR.P S PANICKER, PURNAMI, THURUPALAYAM, PALAKKAD-678001 2. CHINNAMUTHUSWAMY GOWNDER S/O.SUBBAYYA GOWDER, NEYVELI HOUSE, CHANDRAPURAM, VALAYAR DAM P O, PALAKKAD PIN-678624 BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S)/RESPONDENT: ------------------------- 1. THE STATE OF KERALA REP BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARAIT, THIRUVANANTHAPURAM,PIN-695001 2. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM-PIN-695001 3. THE DISTRICT COLLECTOR PALAKKAD PIN-678616 4. THE SPECIAL TAHSILDAR LAND ACQUISITON (G) NO II, PALAKKAD PIN, 678616 R1,R4 BY SPL. GOVERNMENT PLEADER SHRI.C.S.MANILAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-02-2016, ALONG WITH WPC. 23370/2013 & CONNECTED CASES, THE COURT ON 30.3.2016 DELIVERED THE FOLLOWING: WP(C).No. 10799 of 2013 (Y) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXT.P1:-TRUE COPY OF REGISTERED PARTITION DEED DTD 7/6/1985 IN FAVOUR OF THE 2ND PETITIONER EXT.P2:-TRUE COPY OF LIST OF PERSONS WHOSE FAMILIES LIVE IN THE AREA UNDER ACQUISITION FOR VALAYAR INTEGRATED CHECK POST EXT.P3:-TRUE COPY OF MASS PETITION DTD 14/8/2006 SUBMITTED BY THE PETITIONERS AND OTHER LOCAL RESIDENTS IN THE AREA TO THE HONOURABLE CHIEF MINISTER OF KERALA EXT.P4:-TRUE COPY OF REPRESENTATION OF 2ND PETITINER ALSO DTD 8/1/2007 TO THE HONOURABLE CHIEF MINISTER OF KERALA AND OTHERS EXT.P5:-TRUE COPY OF PHOTOGRAPHS OF THE AREA UNDER ACQUISITION FOR INTEGRATED CHECK POST AT VALAYAR EXT.P6:-TRUE COPY OF GO(MS)NO 6/7/TD DTD 11/1/2007 EXT.P7:-TRUE COPY OF JUDGMENT DTD 29/11/2007 IN WPC NO 6800/2007 OF THIS HONOURABLE COURT EXT.P8:-TRUE COPY OF ARGUMENT NOTES SUBMITTED BY THE PETITIONERS TO THE 2ND RESPONDENT EXT.P9:-TRUE COPY OF ORDER DTD 25/2/2008 OF THE 2ND RESPONDENT EXT.10:-TRUE COPY OF JUDGMENT DTD 4/7/2012 IN WPC NO 13508 OF 2008 OF THIS HONOURABLE COURT EXT.P11:-TRUE COPY OF PETITIONS DTD 10/98/2012 OF THE PETITIONERS TO 4TH RESPONDENT EXT.P11(A):-TRUE COPY OF PETITIONS DTD 10/9/2012 OF THE PETITIONERS TO 4TH RESPONDENTS EXT.P12:-TRUE COPY OF THE LETTER DTD 12/10/2012 ALONG WITH ENCLOSURES, OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT EXT.P13:-TRUE COPY OF ORDER NO L R C8-47792/2012 DTD 20/2/2013 OF THE 2ND RESPONDENT EXT.P14:-TRUE COPY OF LEGGER DTD 22/3/2013 OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT EXT.P15: TRUE COPY OF LETTER DT.27.22.2012 OF THE STATE PUBLIC INFORMATION OFFICER & JUNIOR SUPERINTENDENT (D) COLLECTORATE, PALAKKAD ALONG WITH THE COPY OF THE MINUTES OF THE MEETING PRESIDED OVER BY THE HONOURABLE CHIEF MINISTER OF KERALA AT pALAKKAD ON 13.9.2011 AND ITS ENCLOSURES EXT.P16: TRUE COPY OF REGISTERED SALE DEED DATED 9.6.1964 EXECUTED BY SRI.KUNJU NAIR TO SMT.KUNJUBEEVI EXT.P17: TRUE COPY OF REPORT OF HYDROLOGIST, ALONG WITH COVERING LETTER DT.24.7.2008 OF THE DISTRICT OFFICER, GROUND WATER DEPARTMENT RESPONDENT(S)' EXHIBITS ----------------------- EXT.R4(A) TRUE COPY OF THE REVENUE RECORDS TO SHOW THAT THE LAND COMPRISED IN 'MAHARAJA KULAM' AS PURAYIDAM EXT.R4(B): TRUE COPY OF THE DECISION TAKEN IN THE HIGH LEVEL MEETING HEADED BY THE CHIEF SECRETARY JJ /TRUE COPY/ P.S.TO JUDGE **'CR'** ## K. SURENDRA MOHAN, J. ------------------------------- W.P(C) NOS.10799, 17333, 17959, 19190, 19202 19330, 19616 & 23370 OF 2013 ---------------------------------Dated this the 30[th] March, 2016. ## JUDGMENT These writ petitions are all filed challenging the land acquisition proceedings initiated by the respondents for the purpose of establishing an integrated Check Post at Walayar, Palakkad district. Since the contentions raised and the issues that arise for determination are identical, these cases are considered together. WPC 10799/2013 is treated as the leading case. The parties as well as the documents produced are referred to in the manner in which they are described in the said writ petition. 2. For the purpose of establishing the Integrated Check Post, more than 30 acres of land is proposed to be acquired. WPC 10799/2013 & connected cases 2 The land proposed to be acquired is located within the Puthussery East Village, in Puthussery Grama Panchayat. According to the petitioners, the lands proposed to be acquired are very fertile agricultural lands that are well irrigated by drip irrigation schemes. It is contended that, the Puthussery Grama Panchayat has good sources of ground water. The lands are owned by small agriculturists, who are engaged in farming on their own. They have cultivated the lands with crops ranging from paddy, plantains, coconuts, arecanuts etc., apart from other vegetables. There is a pond by name “Maharaja Pond” which is stated to be the perennial source of water for both agriculture as well as other needs of the people of the area. The pond is spread over an area of 5 acres. It also feeds water to the other smaller ponds of the locality. Acquisition and destruction of the pond would result in destruction of an important source of water within the Panchayat, adversely affecting cultivation over a large area as well as the lives of the inhabitants. Ext.P5 photographs are relied upon to substantiate their contentions regarding the WPC 10799/2013 & connected cases 3 nature of the properties and the improvements thereon. All petitioners contend that, acquisition of such a large area is not necessary for establishing a check post, even assuming the need for an integrated check post to be justified. There are other lands owned by the Government near to the present check post, which could be utilised to establish the integrated check post, without affecting the cultivation in the area and the livelihood of the individual farmers. 3. It is the further case of the petitioners that, the proposed project would affect the Eco System of the area adversely. The properties are at the foot hills of the Western Ghats, which is alleged to be an Ecologically Sensitive area. Therefore, as mandated by the various decisions of the Supreme Court, before proceeding with the project, an Environmental Impact Assessment ought to have been conducted. However, the notification under Section 4(1) of the Land Acquisition Act, 1894 (the 'Act' for short) was issued without any proper study. The land proposed to be acquired has a total extent of 12.49 hectares. As per Ext.P6 WPC 10799/2013 & connected cases 4 notification the first respondent invoked the emergency clause under Section 17 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act' for short) and dispensed with the enquiry under Section 5A of the Act. The petitioners thereupon challenged the said notification before this Court in WPC 6800/2007. The said writ petition was disposed of by Ext.P7 judgment, with the following directions:- “In the result the writ petition is disposed of in the following manner:- There will be a direction to the respondents to exempt the land covered by the pond in case any land now notified for the purpose of the construction of integrated check post at Walayar is exempted. There will be a further direction to the Land Revenue Commissioner/Secretary concerned who is the competent authority to issue Section 6 declaration to hear the objection raised by the petitioners with specific reference to their objections regarding the acquisition of the pond situated within the properties now sought to be acquired with due notice to the petitioners and also requisitioning authority and take a decision in the matter as expeditiously as possible at any rate within two months from the date of receipt of a copy of this judgment. Learned Government Pleader WPC 10799/2013 & connected cases 5 shall forward a copy of the judgment to the competent authority. Until the matter is heard and a decision is taken, dispossession of the petitioners from the land notified is stayed.” 4. According to the petitioners, though they had submitted Ext.P8 argument notes in support of the various contentions put forward by them before the second respondent, none of the contentions were considered. As per Ext.P9 order dated 25.2.2008 the second respondent rejected the objections of the petitioners. However, it is provided in Ext.P9 that the Sales Tax Department would retain the pond in its present condition. Ext.P9 was the subject matter of challenge before this Court in another writ petition at the instance of the petitioners. The said writ petition, WPC 13508/2008 as well as other connected writ petitions were considered by this Court and disposed of by Ext.P10 judgment dated 4.7.2012 holding that, invocation of the emergency clause in Ext.P7 was without any justification. Therefore, the Government was directed to proceed with the matter after conducting the enquiry stipulated by Section 5A of the Act. WPC 10799/2013 & connected cases 6 The direction issued by this Court in Ext.P10 reads as follows:- “In such circumstances, it is evident that the emergency clause was invoked without justification. For that reason, I am inclined to interfere with the proceedings. Accordingly, I set aside the action of the Government in invoking the emergency clause. The Government is directed to proceed with the acquisition proceedings, after conducting an enquiry under Section 5A of the Land Acquisition Act. The Section 5A enquiry shall be completed, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. “ 5. According to the petitioners, since Ext.P6 notification was a composite one, invoking the emergency clause under Section 17 of the Act, when this court set aside the same it was necessary for the first respondent to have issued a fresh notification under Section 4(1) of the Act. In other words, the land acquisition proceedings ought to have been initiated afresh. This is for the reason that, a notification issued under Section 4(1) of the Act would in the normal circumstances have invited objections to the proposal, which are to be submitted within a period of 30 days of publication WPC 10799/2013 & connected cases 7 thereof. No such opportunity was given to the affected parties in Ext.P6 for the reason that the emergency clause had been invoked. Therefore, the primary contention is that, most of the affected parties have not been provided with an opportunity to put forward their objections. The same is a vitiating circumstance in respect of the entire proceedings. 6. Apart from the above, as per Ext.P13, the objections of the petitioners have been rejected in a cursory manner without considering them properly. In view of the above, according to the petitioners Ext.P13 is unsustainable and liable to be set aside. It is contended that, the objections of the petitioners ought to have been specifically referred to and considered, before they were rejected. 7. It is the further contention of the petitioners that, though the objections were rejected as per Ext.P13 under Section 5A of the Act, no declaration under Section 6 of the Act was issued thereafter. Ext.P6 is dated 11.1.2007 and Ext.P13 is dated 20.2.2013. Since no declaration under Section 6 was issued within the time limit stipulated by the WPC 10799/2013 & connected cases 8 said provision, it is contended that the land acquisition proceedings have lapsed. Therefore, no further proceedings to dispossess the petitioners and other land owners on the basis of the impugned proceedings for the acquisition of their land is permissible. For the above reason, they seek the issue of appropriate orders and directions against proceeding any further with the land acquisition proceedings that are under challenge. 8. A counter affidavit has been filed by the fourth respondent. Thereafter, a statement as well as an additional statement have been filed, refuting the contentions of the petitioners. 9. According to Adv.P.Chandrasekhar who appears for some of the petitioners, our State is facing an alarming situation where large scale conversion of agricultural lands for commercial as well as other uses is taking place on a day to day basis. Kuttanad and Palakkad, traditionally considered to be the granaries of Kerala have lost most of their paddy cultivation and agricultural lands through indiscriminate WPC 10799/2013 & connected cases 9 conversions. The first respondent felt the imminent need for effective steps to curb such conversions with the object of preserving the paddy lands and wet lands in the State. With the above objective, the Kerala Conservation of Paddy Land and Wet Land Act, 2008 has been enacted. Section 11 of the said enactment prohibits conversion of such lands. In the present case, a large extent of very fertile, fully irrigated agricultural lands is proposed to be acquired, admittedly with the object of establishing the Integrated Check Post. The lands are located in an Ecologically Sensitive area at the foot hills of the Western Ghats. Therefore, it was imperative that, an Environmental Impact Assessment was conducted before initiating the proposal. After conducting an environmental impact study, it is necessary to examine whether the benefit that would accrue from the project would outweigh the magnitude of damage that would ensue. No such study having been conducted, according to the learned counsel, the entire proceedings are unsustainable and liable to be set aside. WPC 10799/2013 & connected cases 10 10. It is further pointed out that, the project would destroy the water sources in the area and would render the remaining lands in the Panchayat also fallow and incapable of being cultivated. There is absolutely no necessity for such a large extent of land to be acquired for establishing a check post, according to the counsel. There are other lands owned by the Government available close to the present check post, which would be sufficient to satisfy the need that is put forward. According to the learned counsel, no proper opportunity to submit objections was afforded to the affected parties. The proceedings are also bad for the reason that no declaration under Section 6 has followed Ext.P13 by which the objections under Section 5A were rejected. The counsel therefore seeks the issue of appropriate directions setting aside the impugned proceedings. Adv.P.R.Venkitesh and Adv.T.C.Suresh Menon who represent the petitioners in the connected matters have also put forward contentions on more or less the same lines. Various decisions of the Supreme Court as well as our High Court have been relied upon in WPC 10799/2013 & connected cases 11 support of the contentions urged. 11. The Senior Govt. Pleader Shri.C.S.Manilal who appears for the respondents vehemently disputes the contentions advanced on behalf of the petitioners. According to the learned Senior Govt.Pleader this is a case where the petitioners are attacking a project that is sought to be implemented, in public interest. Walayar is the biggest check post in the State of Kerala. A large number of vehicles carrying merchandise enter the State through the Check Post every day. Large volumes of contraband articles would slip through if the Check Post does not function properly. Large scale evasion of tax would also take place. Lack of facilities at the Check Post for the officials who are manning the same as well as lack of space for parking vehicles and for allowing vehicles to be subjected to search etc. have been felt by the State for a long time. It was to set right matters, to improve the facilities for collection of Revenue, to prevent evasion of taxes and to provide an integrated establishment where the enforcement officers of different establishments like the Sales WPC 10799/2013 & connected cases 12 Tax, Excise, Police, RTO etc could work in co-ordination that the project was conceived. The petitioners do not have a case that there is any malafides in the project that is contemplated. Admittedly, the acquisition is for a public purpose. Their contentions have been considered properly at the enquiry conducted under Section 5A of the Act pursuant to the direction of this Court. The scope of the enquiry under Section 5A of the Act was limited to examining whether the proposed acquisition was for a public purpose or not. The disabilities or injuries that the individual land owners may suffer, do not form part of the enquiry under Section 5A. The enquiry under Section 5A is essentially administrative in nature and not quasi judicial. Therefore, the reasons available in Ext.P13 are sufficient. According to the learned Senior Govt. Pleader, it is for the requisitioning authority to decide and determine the extent of land that was required for the project that was proposed. The competent authority has decided that the extent proposed to be acquired in this case was necessary. The petitioners cannot question WPC 10799/2013 & connected cases 13 the said determination. With respect to the ecological imbalance that is likely to ensue, according to the learned Senior Govt. Pleader, no study on the above aspect is available to substantiate the contentions put forward. 12. It is the further contention of the learned Senior Govt. Pleader that, a declaration under Section 6 of the Act was not necessary to follow the report of the enquiry under Section 5A of the Act, in all cases. In other words, a declaration under Section 6 could be issued even before the enquiry was conducted. In the present case, the Section 6 declaration had been published in the year 2008 itself. For the above reason, it is contended that a fresh declaration under Section 6 was not necessary after the issue of Ext.P13. The learned Senior Govt. Pleader has also placed reliance on a number of decisions to support his contentions. The learned Senior Govt. Pleader therefore sought for dismissal of all the writ petitions, with liberty to proceed with the acquisition as proposed. 13. Heard. A wide range of contentions have been put WPC 10799/2013 & connected cases 14 forward before me by the respective counsel in these cases. They attack not merely the necessity for acquisition, but also the extent of land required for the purpose, assuming the acquisition to be a necessity, the identity of the lands that could be utilised, the question as to whether the alternative government lands that are available would not meet the requirement besides, technical contentions regarding non-compliance of the various provisions of the Act as well as violation of the principles of natural justice. The contentions of the counsel appearing for the petitioners are countered with equal vehemence and force by the learned Senior Govt. Pleader Shri.C.S.Manilal, with the support of a number of decisions. The fact that no study assessing the environmental impact of the project had preceded the proceedings for acquisition is admitted. The location of the lands at the area forming the foothills of the Western Ghats is pointed out to be an aspect that has not been taken note of by the authorities. The area according to the petitioners is ecologically fragile and sensitive. WPC 10799/2013 & connected cases 15 14. Per contra according to the learned Senior Govt.Pleader it is not open to the petitioners to question the extent of the land that is required for the project, the scope of the enquiry under Section 5A of the Act is confined to considering the adverse effects that the acquisition is likely to cause to the owners of each parcel of land. The fact that the land was needed, that the extent to be acquired was necessary for the project and the facilities proposed to be set up are all matters with respect to which the competent authority has formed an opinion. The said opinion is unassailable, according to the learned Senior Govt. Pleader. Therefore, it is contended that the writ petitions lack merits and are liable to be dismissed. 15. The proceedings for acquisition in these cases have commenced in the year 2007. Ext.P6 is a copy of the order dated 11.1.2007 issued by the Government under Section 17 (4) of the Act. The said Govt. Order was the subject matter of challenge before this Court in WPC 6800/2007. The said writ petition was disposed of by Ext.P7 judgment directing the WPC 10799/2013 & connected cases 16 competent authority empowered to issue the declaration under Section 6 of the Act to consider the objections of the land owners and to take a decision in the matter within a period of two months of the date of the judgment, the relevant portion of which has already been extracted by me above. In compliance with the said direction, the parties were heard and as per Ext.P9 order dated 25.2.2008, the objections were all rejected. 16. Ext.P9 was the subject matter of challenge before this Court in WPC13508/2008 and connected writ petitions. This Court considered the contentions of the parties and found that invocation of the emergency clause under Section 17 of the Act was without justification. Therefore, by Ext.P10 judgment this Court directed the first respondent to proceed with the acquisition after conducting an enquiry under Section 5A of the Act. Such enquiry was directed to be conducted within a period of two months therefrom. Ext.P10 judgment is dated 4.7.2012. In the meanwhile, the Section 6 declaration was issued on 7.4.2008 which is Ext.P12. Though WPC 10799/2013 & connected cases 17 Ext.P10 judgment has not set aside either Ext.P9 rejecting the objections of the petitioners or Ext.P12, which was not under challenge in the said proceedings, the direction of this Court was “to proceed with the acquisition proceedings, after conducting an enquiry under Section 5A of the Act.” Admittedly, no declaration under Section 6 has been issued after Ext.P13 by which the enquiry under Section 5A was concluded. The question is whether the omission to issue a declaration under Section 6 would vitiate the acquisition proceedings in these cases. 17. The notification under Section 4(1) of the Act published in connection with the acquisition that is under challenge has been produced before me as Exts.P1 to P5 in WPC23370/2013. The said notifications mention that considering the urgency of the requirement, the Revenue Board had invoked the urgency clause under Section 17(4) of the Act and had dispensed with the enquiry under Section 5A of the Act. It was by a Government Order dated 11.1.2007 that the emergency provision under Section 17(4) of the Act WPC 10799/2013 & connected cases 18 was invoked by the Government which is Ext.P6. Thus, initially the emergency clause had been invoked and the enquiry contemplated by Section 5A of the Act had been dispensed with. As already noticed above, by Ext.P7 judgment this Court had initially directed the competent authority empowered to issue the declaration under Section 6 of the Act, to consider the objections of the petitioners. Accordingly, the objections were considered and rejected by Ext.P9. The declaration under Section 6 of the Act also had followed shortly thereafter. It was in the above circumstances that, this Court passed Ext.P10 judgment. 18. As per Ext.P10 this Court found that, the action of the Government in invoking the emergency clause was not justified. Therefore, the said action was set aside. This Court further directed the Government to proceed with the acquisition proceedings after conducting the enquiry under Section 5A of the Act. It is vehemently contended by the counsel appearing for the petitioners that, since the notification invoking the urgency clause was set aside, it was WPC 10799/2013 & connected cases 19 necessary for a fresh notification under Section 4(1) to have been issued. This is for the reason that, a notification normally issued under Section 4(1) would have called for objections from the land owners, with a direction to submit such objections within 30 days of the date of the notice. However, the notifications under Section 4(1) issued in these cases stated that the enquiry under Section 5A of the Act had been dispensed with invoking the urgency clause and therefore many of the land owners had not submitted objections to the proposed acquisition, on the belief that they had no right to prefer such objections. Consequently, many of the land owners were prevented from ventilating their grievances. For the above reason, it is contended that a fresh notification under Section 4(1) was necessary to be issued. However, in the facts and circumstances of the present case, I am not satisfied that the above contention can be accepted. The direction of this Court in WPC12039/2008 and connected cases (Ext.P10), already extracted by me above shows that, after setting aside the action of the Government invoking the WPC 10799/2013 & connected cases 20 emergency clause, this Court had directed the Government “to proceed with the acquisition proceedings, after conducting an enquiry under Section 5A of the Act.” It is clear from the above that, the nature of the direction issued was to the Government to conduct the enquiry under Section 5A of the Act and to proceed with the acquisition thereafter. The issue of a fresh notification under Section 4(1) of the Act was therefore not within the contemplation of this Court. For the above reason, the action of the Government in proceeding with the acquistion from the stage of the enquiry under Section 5A of the Act, cannot be found fault with. 19. In compliance with the direction contained in Ext.P10, the enquiry under Section 5A of the Act was conducted and the objections of the petitioner have been rejected by Ext.P13 proceedings of the Land Revenue Commissioner. Ext.P13 is dated 20.2.2013. However, Ext.P12, the declaration under Section 6 of the Act had been published long before and is dated 7.4.2008. It is admitted that, no declaration under Section 6 has been issued after the WPC 10799/2013 & connected cases 21 date of Ext.P13 by which the enquiry under Section 5A of the Act was concluded. 20. According to the counsel for the petitioners, the omission to issue a declaration under Section 6 of the Act within the time stipulated by law is fatal to the entire proceedings for acquisition. Therefore, the proceedings have lapsed. The learned Senior Govt. Pleader on the other hand contends that the declaration under Section 6 could be issued either before or after the conclusion of the enquiry under Section 5A of the Act. The learned Senior Govt. Pleader also points out that though the invocation of the emergency clause was set aside by this Court in Ext.P10 judgment, Ext.P12 the declaration under Section 6 was not set aside. Therefore, Ext.P12 continued to be in force all throughout, saving the limitation that is stipulated by Section 6 of the Act. In view of the above according to the learned Govt. Pleader, the land acquisition proceedings have not lapsed. Adv.P.Chandrasekhar who appears for the petitioners meets the above contention by pointing out that, Ext.P12 is only a WPC 10799/2013 & connected cases 22 dependant order, that has fallen to the ground with the setting aside of the action of the Government invoking the emergency provision. The counsel relies on the decision of the Apex Court in Rikhabsao Nathusao Jain v. Corporatioon of the City of Nagpur [(2009)1 SCC 240] particularly paragrph 32 thereof to contend that, in the said case where the issue of a mandatory injunction was found to be improper, the consequent sanction issued by the authority in compliance with the order was also void, invoking the doctrine of “the dependant order” though the sanction had not been specifically challenged. 21. In the above context, it is necessary to have a look at the relevant statutory provisions. Section 17(4) of the Act reads as under: “17. Special Powers in cases of urgency.- xxx xxx xx (4) In the case of any land to which, in the opinion of the appropriate Government or the Board of Revenue the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government or the Board of Revenue, as the case may be, may direct that the provisions of Section 5A shall not apply, and, if it does WPC 10799/2013 & connected cases 23 so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4, subsection (1).” It was invoking the above provision that Ext.P6 notification was issued. It was immediately after the issue of Ext.P6 that Ext.P7 judgment of this Court came to be passed, directing the authority to consider the objections of the land owners before issuing the declaration under Section 6 of the Act. Accordingly, the objections were considered and rejected as per Exts.P9 and P12, the declaration under Section 6 followed. The relevant portion of Ext.P12 containing the declaration under Section 6 of the Act is reproduced hereunder for convenience of reference:- ## DECLARATION No:LRC7-12472/2008 7[th] April, 2008. WHEREAS, under sub-section (1) of Section 4 of the Land Acquisition Act, 1894 (Central Act 1 of 1894) Notification No:A-3174/06 dated 24.5.2007 in respect of the land specified in the Schedule has been published in Kerala Gazette Extraordinary No:1020 dated 2.6.2007, Mathrubhumi dated 12.7.2007 and in the Desabhimani WPC 10799/2013 & connected cases 24 dated 15.7.2007, Erratum Notification in Kerala Gazette Extraordinary No:2300 dated 26.12.2007, Mathrubhumi dated 23.1.2008 and Deshabhimani dated 25.1.2008. - AND WHEREAS, under sub section (4) of Section 17 of the Land Acquisition Act, 1894 (Act 1 of 1894) the Land Revenue Commissioner has directed that in view of the urgency of the case, the provisions of Section 5A of the said Act shall not apply to the land specified in the Schedule below: AND WHEREAS, the Land Revenue Commissioner is satisfied that the said land has to be acquired for a public purpose; NOW, THEREFORE, the Land Revenue Commissioner hereby declare under Section 6 of the Act, that the land specified in the Schedule below and measuring 1.7946 hectares be the same a little more or less is needed for a public purpose to wit the construction of an integrated Check Post at Walayar and under section 7 of the Act direct the Special Tahsildar LA (G), No:II, Palakkad to take order for the acquisition of the land. Further under subsection (1) of Section 17 of the Act the Government direct that the Collector may take possession of the land on the expiry of fifteen days from the date of publication of the notice mentioned in sub-section (1) of Section 9 of the Act. A plan of the land is kept in the office of the Special Tahsildar LA(G) No.II, Palakkad and may be inspected at any time during office hours.” (emphasis supplied) WPC 10799/2013 & connected cases 25 A perusal of the above shows that, the same has been issued relying on the fact that, in view of the invocation of the emergency provision under Section 17(4) of the Act, Section 5A of the Act has no application to the land specified in the schedule to the said declaration. In other words, in view of the invocation of the emergency clause under Section 17(4) of the Act, the Land Revenue Commissioner has proceeded on the assumption that, the enquiry under Section 5A of the Act had been dispensed with. However, a reading of Section 6 of the Act would show that, the report of the enquiry conducted under Section 5A of the Act is a crucial factor that has to be considered for the purpose of arriving at the satisfaction that is stipulated by Section 6 of the Act. ## 22. Section 6 of the Act reads as under: “6. Declaration that land is required for a public purpose.-(1) Subject to the provisions of Part VII of this Act, when the appropriate Government or the Board of Revenue is satisfied, after considering the report, if any, made under Section 5A, sub-section(2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to cerify its WPC 10799/2013 & connected cases 26 orders or of the Secretary of the Board of Revenue, as the case may be, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notifications under Section 4, subsection (1), irrespective of whether one report or different reports has or have been made wherever required under Section5A, sub-section (2).” The above provision provides that, when the appropriate Government or the Board of Revenue (i) is satisfied (ii) after considering the report, if any, made under Section 5A, sub-section (2), (iii) that any particular land is needed for a public purpose, (iv) a declaration shall be made to that effect under the signature of a Secretary to such Government. It is clear from the above that a consideration of the report made under Section 5A of the Act is a necessary input for arriving at the “satisfaction” that a particular land is needed for a public purpose. The words, “if any” in Section 6 indicates that a situation where no report of the enquiry under Section 5A is available, was also contemplated by the law makers. WPC 10799/2013 & connected cases 27 The said situation is the one envisaged by Section 17(4) of the Act, which confers power on the Government to dispense with the enquiry under Section 5A in a situation of emergency. In the present case, the action of the Government in invoking the emergency provision having been set aside by this Court and a direction having been issued to proceed with the proceedings after conducting the enquiry under Section 5A of the Act, the said situation does not exist. In this case, admittedly there is a report of the enquiry conducted under Section 5A of the Act available. Therefore, it was necessary for the authority to have considered the said report also, while deciding whether the land was needed for a public purpose. No such consideration has taken place in these cases for the reason that, admittedly no declaration under Section 6 has been made after the enquiry under Section 5A was completed as per Ext.P13. Ext.P12 cannot rectify the defect for the reason that it was issued on the assumption that no report of the enquiry under Section 5A was available in view of the invocation of the emergency clause. Since an enquiry under Section 5A was WPC 10799/2013 & connected cases 28 conducted later pursuant to the direction of this Court, it was necessary for the competent authority to have considered the report of such enquiry also and issued a fresh declaration under Section 6 of the Act. 23. As already found above, a reading of Section 6 of the Act makes it imminently clear that the enquiry under Section 5A of the Act has to precede the declaration under Section 6 of the Act. It is only after considering the report under Section 5A also that the satisfaction of the competent authority as to whether a land is required for a public purpose, has to be arrived at. In the present case though an enquiry under Section 5A of the Act was conducted pursuant to the direction issued by this Court in Ext.P10, the report of such enquiry, admittedly did not figure in the consideration on the basis of which the satisfaction that was entered by the authority for the purpose of issuing the declaration under Section 6 of the Act. The attempt of the learned Special Govt. Pleader to salvage the proceedings by contending that it is permissible for the declaration under Section 6 to be made even prior to the WPC 10799/2013 & connected cases 29 conduct of the enquiry conducted under Section 5A of the Act cannot be accepted for the reason that Section 6 specifically mandates consideration of the report of such enquiry, wherever such a report is available. 24. The declaration published in these cases, evidenced by Ext.P12 cannot save the situation for yet another reason, viz., that it has proceeded on an erroneous assumption that the enquiry under Section 5A of the Act had been dispensed with. The declaration specifically states in paragraph 2 thereof that “in view of the urgency of the case, the provisions of Section 5A of the said Act shall not apply to the land specified in the schedule below”. The said assumption had undergone a change by the subsequent intervention of this Court, directing the enquiry under Section 5A of the Act to be conducted. Consequently, as soon as the report of the enquiry under Section 5A of the Act became available, it was incumbent on the authority to have considered the said report and arrived at a fresh satisfaction under Section 6 of the Act. 25. It is also worth noticing that this Court had in WPC 10799/2013 & connected cases 30 Ext.P10 directed to proceed with the acquisition proceedings after conducting an enquiry under Section 5A of the Act. The direction was therefore to continue the proceedings from the stage of the enquiry contemplated by Section 5A of the Act, which was initially dispensed with by invoking the emergency clause. When the invocation of the emergency clause was set aside by this Court, the power to issue a declaration under Section 6 without conducting an enquiry under Section 5A of the Act also disappeared relegating the authority to the normal procedure for acquisition that is contemplated by the Act. In other words, pursuant to the enquiry that was conducted under Section 5A of the Act, it was incumbent on the competent authority to have considered the said report also and to have entered the satisfaction that is stipulated by Section 6 of the Act. A fresh declaration under Section 6 was necessary to have been issued thereafter, within the time stipulated by the said provision. Such a declaration not having been issued in these cases, the limitation stipulated by Section 6 has become applicable and, the entire land WPC 10799/2013 & connected cases 31 acquistion proceedings have lapsed. Since the interim order in these cases was confined to dispossession of the petitioners of their properties alone, the Explanation to Section 6 has no application. 26. Though a number of contentions have been raised before me by both sides challenging the manner in which the objections have been rejected, without any consideration thereof by Ext.P13, and the larger issue regarding the necessity of a proper study regarding impact of the project on the environment, the availability of alternative land owned by the Government in the vicinity of the proposed project etc., I refrain from considering any of the said contentions in view of my finding that the acquisition proceedings have lapsed for the reason of non-issue of a notification under Section 6 of the Act. All the other contentions put forward by both sides are left open. In the result: i) These writ petitions are allowed. ii) The respondents are directed not to proceed with the WPC 10799/2013 & connected cases 32 proceedings for acquisition of the lands owned by the petitioners herein for the reason that the entire proeedings have lapsed due to the omission to issue a declaration under Section 6 of the Land Acquisition Act within the time limit stipulated by law. iii) There shall be no order as to costs. Sd/K. SURENDRA MOHAN Judge jj /True copy/ WPC 10799/2013 & connected cases 33