NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Interlocutory Application Nos. 1 and 2 of 2008  IN   

CIVIL APPEAL NO.4728 OF 2008 (Arising out of SLP(C) No. 22346 of 2007) Mahadevappa Lachappa Kinagi and Ors. …Appellants

VERSUS State of Karnataka and Ors.        …Respondents

O R D E R

1. Leave granted.

2. This  appeal  is  filed  against  the

judgment and order dated 3rd of October,

2007 passed in Writ Appeal No. 834 of

2007  whereby  the  High  Court  had

dismissed the appeal of the appellants

holding  that  in  the  facts  and

circumstances  of  the  case,  the  power

under Section 17 of the Land Acquisition

1

Act  (in  short  the  “Act”)  was  validly

invoked.  

3. Before we proceed further, we may note

that at the time of issuing notice on

the respondents, this Court on 14th of

December,  2007  passed  the  following

order :- “Issue notice. Status  quo  as  on  today  shall  be maintained.”                     

4. An application for vacating the interim

order was listed for hearing on 16th of July,

2008 and the learned counsel appearing for

the  parties  submitted  before  us,  on

instructions,  that  instead  of  hearing  out

the  application  for  vacating  the  interim

order,  it would  be fit  and proper  if the

Special  Leave Petition itself was decided.

Accordingly, with the consent of the learned

counsel for the parties, the SLP itself was

taken  up  for  hearing  which  was  heard  on

2

grant  of  leave  in  presence  of  learned

counsel for the parties.   

5. The  appellants  are  owners  of  Sy  Nos.

172/1A, 2A, 2B and 173/2 totaling 18.5 Acres

situated at Almel Village Sindagi Taluk in

the  State  of  Karnataka.   During  the  year

1962,  due  to  over  flow  of  Bhima  river,

Tharapura village was submerged.  The State

Government acquired about 14 Acres of land

in  Sy  No.  188,  189  and  190/2  of  Almel

Village  in  order  to  rehabilitate  the

families  of  Tharapura  village  which  was

submerged by the over flow of Bhima river.

On  the  said  acquired  lands,  the  State

Government had rehabilitated 85 families of

Tharapura  village  whereas  145  families  of

the  said  village  were  still  not

rehabilitated.  It  is  not  in  dispute  that

after  rehabilitating 85 families as stated

hereinabove on the aforesaid acquired lands,

another 145 families still were residing in

3

the  Tharapura  village  including  the

appellants.   In  the  year  1994,  technical

sanction  was  given  for  the  Bhima  Lift

Irrigation  Project.   Accordingly,  sanction

was accorded to construct a barrage on the

Bhima  river,  for  which  final  sanction  was

given  in  the  financial  year  2003-2004.

Thereafter, construction work began and this

project  was  aimed  to  extend  irrigation

facilities to 24,200 hectares of land.  As a

result of the detailed technical status, it

was  found  that  the  project,  i.e.,  Bhima

Irrigation  Project,  would  result  in  the

complete  submergence  of  Tharapura  village

owing to water spread when the barrage is

commissioned.  For this reason, it was found

imperative  and  absolutely  necessary  to

evacuate  the  villagers  still  staying  in

Tharapura  village.   Accordingly,  before

commissioning  the  barrage,  decision  was

taken  to rehabilitate another 145 families

of Tharapura village in some other area.   

4

6. It is not in dispute that construction

work of the barrage is ready for operation.

At  this  stage,  it  was  thought  proper  to

rehabilitate  145 families, for which lands

were  sought  to  be  acquired.   Under  these

circumstances,  the  commissioning  of  the

barrage  on  the  Bhima  river  could  not  be

started  although  it  was  completed  because

the 145 families in the said village could

not be shifted.  To meet this problem, the

notification under Section 4(1) of the Act

was  issued  on  10th of  August,  2006  for

acquiring  the  lands  of  the  appellants

namely,  Sy  Nos.  172/1A,  2A,  2B  and  173/2

totaling 18.5 Acres.

7. This  notification  was  under  challenge

before  the  High  Court  by  way  of  a  writ

application,  which  was  dismissed  by  a

learned Single Judge of the High Court and

the said order was affirmed by a Division

Bench of the High Court.  The orders of the

5

High court are now under challenge before us

in  appeal.  The  learned  senior  counsel

appearing on behalf of the appellants, Mr.

Vasudev substantially raised the submission

before  us  that  since  the  rehabilitation

project  was  pending  since  1962,  the

emergency power under Section 17 of the Act,

could not have been exercised by the State

Government in the year 2006. Accordingly, it

was contended by Mr.Vasudev, learned senior

counsel  appearing  on  behalf  of  the

appellants, that since there was no urgency

in the matter to invoke emergency provision

for acquisition under Section 17 of the Act

and  normal  procedure  ought  to  have  been

followed,  the notification under Section 4

of the Act should be quashed. In support of

this  contention  whether  emergency  power

under Section 17 of the Act could be invoked

in  the  facts  and  circumstances  of  the

present case particularly after such a long

delay,  Mr.  Vasudev  strongly  relied  on  a

6

decision of this Court in the case of Union of India and Ors. vs. Mukesh Hans etc.(2004) 8 SCC 14, particularly on paragraphs 31 and 32 of the said Judgment.       

9. Mr. Vasudev contended that since Section

17  provides  that  in  cases  where  an

appropriate  Government  has  come  to  a

conclusion that there exists an urgency or

unforeseen emergency as required under Sub-

Sections (1) and (2) of Section 17, it may

direct  that  the  provisions  of  Section  5A

shall  not  apply  and  if  such  direction  is

given,  then  Section  5-A  inquiry  can  be

dispensed with and a declaration may be made

under Section 6 on publication of Section 4

(1)  notification  and  possession  can  be

taken.  Relying  on  these  two  paragraphs,

namely paragraphs 31 and 32 of the aforesaid

decision of this Court, Mr. Vasudev sought

to argue that in this case, the High Court

7

had failed to consider that it was the duty

of the authorities to come to a conclusion

that there exists an urgency or unforeseen

emergency as required by Sub-section (1) and

(2)  of  Section  17  before  such  emergency

provision  could  be  invoked.  Mr.Vasudev

learned  counsel for the appellants further

contended  that  the  notification  under

Section 4(1) read with Section 17 of the Act

must be quashed as there was nothing on the

record to show that the State Government had

made out any case to invoke such emergency

provision.  There  is  no  quarrel  on  this

proposition at all.  It is true that if the

Court  comes  to  a  conclusion  whether  there

exists  any  unforeseen  emergency  to  invoke

power under Section 17 of the Act, it was

the duty of the authorities to proceed with

the normal procedure under Section 5A of the

Act.  We  are,  however,  on  the  facts  and

circumstances of this case, unable to rely

on  this  observation  of  this  Court  in  the

8

aforesaid paragraphs of this decision cited

by Mr. Vasudev. In this case, we find that

emergency  power  under  Section  17  was

required  to  be  invoked,  as  the  admitted

facts of the present case, that on the lands

initially  acquired,  only  85  families  were

reallocated or rehabilitated.  The Tharapura

village was going to be sub-merged after the

construction of the barrage and 145 families

would  be  immediately  shifted  to  somewhere

else.  In view of this emergency and in view

of  the  fact  that  the  barrage  has  already

been  completed  and  it  is  going  to  be

commissioned, it was thought fit and proper

that the land, as noted hereinabove, should

be acquired.

11. It  cannot  be  forgotten  that  the

commissioning of the entire project has been

held-up on account of the present appellants

only.   In  fact,  the  appellants  challenged

the  resolution  of  the  concerned  Panchayat

9

before  the  High  Court  of  Karnataka,  which

was  rejected  by  the  learned  Single  Judge,

who found that the acquisition process was

proper.

12. This  fact  of  moving  the  writ  petition

practically  challenging  the  proposal  to

acquire  the  land  was  suppressed  when  the

present  writ  application  was  moved.   The

rehabilitation  of  145  families  could  be

immediately  required  because  of  the

commissioning  of  the  barrage  on  the  Bhima

river.   Not  only  this,  pursuant  to  the

acquisition  of  the  lands  in  question,  the

respondents  have  awarded  contract  for

construction  for  Tharapura  Rehabilitation

Centre for providing civic amenities as part

of  the  Lift  Irrigation  Scheme,  which  is

valued  at  Rs.  3,34,17,747/-.   If  this

contract is not permitted to be executed and

works are not completed, the 145 families of

Tharapura village cannot be shifted and the

10

entire contract amount will be wasted.  This

being the admitted position, we are unable

to agree with Mr. Vasudev that in the facts

and circumstances of the present case, the

invocation of emergency power under Section

17 of the Act without following the normal

procedure was not proper.   

13. It is no doubt true that Section 17 of

the Act confers extraordinary powers on

the  authorities  under  which  it  can

dispense with the Normal procedure laid

down  under  Section  5-A  of  the  Act  in

cases of exceptional urgency. It is also

true that such powers cannot be lightly

resorted  to  except  in  case  of  real

urgency enabling the Government to take

immediate  possession  of  the  land

proposed  to  be  acquired  for  public

purpose. In  Union of India vs. & Ors.

vs. Krishan Lal Arneja & Ors. {(2004) 8

SCC  453],  this  Court  has  clearly  laid

11

down  that  Section  17  confers

extraordinary powers on the authorities

to  dispense  with  the  normal  procedure

under  Section  5-A  of  the  Act  if  the

authorities are of the opinion that it

was  a  case  of  exceptional  urgency.  In

view  of  our  discussions  made  herein

above  to  the  extent  that  the  barrage

itself over the Bhima River could not be

commissioned  and  if  such  commissioning

is  done  before  rehabilitating  the  145

families of Tharapura Village which will

be  submerged  on  such  commissioning  is

shifted,  the  project  would  then  also

result in total submergence of Tharapura

Village. It is not possible to hold that

this was not an exceptional case where

emergency power under Section 17 could

not be invoked.

For  the  reasons  aforesaid,  we  do  not

find any merit in this appeal and the appeal

12

is, therefore, dismissed. There will be no

order as to costs.  

The  interim  order  granted  on  14th

December,  2007  stands  vacated.  In  view  of

this judgment by which the appeal itself has

been disposed of, no order need be passed on

the  application  for  vacating  the  interim

order,  it  is  also  disposed  of  as

infructuous.              

……………………………………………J.  [TARUN CHATTERJEE]

New Delhi.  ………………………………………….J. July 30, 2008.   [AFTAB ALAM]    

13

14