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