K. J. Shetty, C. J. - (1.) PETITIONERS are owners of plot no. 351 measuring 2.7 acres situated in mauza Bhalgaon, paragana Develgarh, district Garhwal. The State Government for the purpose of constructing a power sub-station has taken steps to acquire this land. A notification under section 4 (i) readwith section 17 (1) and 17 (4) of the Land Acquisition Act was issued on August 9, 1975 (the Act). The inquiry contemplated under sec. 5-A of the Act was dispensed with on the ground that there was urgency in the matter. Declaration as required under section 6 of the said Act was made by notification dated August 25, 1975.
(2.) CHALLENGING the validity of the notifications the petitioners have moved this Court under Article 226 of the Constitution. The writ petition was filed on 15-9-1980. This Court while admitting the writ petition has stayed the delivery of possession. So far all these years, the possession of the land in question remains with the petitioners. The primary contention urged for the petitioners is that there was absolutely no urgency to dispense with the inquiry contemplated under section 5-A of the Act. In support thereof counsel for the petitioners placed reliance on the averments in the counter affidavit and in particular, the averments in paragraph 22. The counter affidavit has been filed by Dhananjai Singh who is the Special Land Acquisition Officer Garhwal Divn. Pauri. He has stated thus : Para 22. "That in reply to the contents of paragraph 26, 27 and 28 of the writ petition it is stated that acquisition proceedings were not at all delayed. In fact after publication of section 6 of the Act, notices under section 9 of the Acquisition Act were issued for service on the petitioner on 6-9-1975 but the notices could not be served on them on account of their absence from their addresses which is recorded in the revenue record against the land in dispute. Since no other address was available with the District Authorities fresh notices under section 9 of the Act were again issued on 25th October 1976 for service on the petitioners but unfortunately this time also the notices were not served as the petitioners were not available at their addresses. As a result of the non-service of notices the possession of the land in dispute could not be taken in the year 1976. Fresh attempt for service on the petitioners under section 9 of the Act could not, however, be taken on account of the fact that there was no officer posted as Special Land Acquisition Officer from August 1978 to May 1980. By mistake no notification conferring the power of Special Land Acquisition Officer on any of the officer was issued by the Government during this period after the transfer of Sri M. S. Srivastava who was working as Special Land Acquisition Officer upto 9th August 1978. On 15th May 1980 Sri Dhananjai Singh took over charge as Special Land Acquisition Officer, thereafter, he proceeded on leave on account of his domestic problem. He rejoined the duties in the end of July 1980 whereafter he initiated proceedings for taking the land and for that purpose issued notices under section 9 of the Act again on 10-8-1980 as well as made local publication of the notices by fixation on the plot in dispute. After the service of the notice petitioner filed their objections as contemplated by section 9 of the Act. Those objections could not be decided due to the stay order granted by this Hon'ble Court on account whereof the possession of the land in dispute has also been held up. " The averments in paragraph 22 of the counter-affidavit would make an interesting reading. The first part therein deals with the difficulties of the authorities to effect service of notices to the petitioners. Next it deals with want of officers to be posted as Land Acquisition Officer. Assuming that there were genuine difficulties for the officers to effect service, one cannot understand why there should be a delay for a couple of years in posting the concerned officer to continue the proceedings. This delay is indeed understandable against the background of the urgency alleged for acquiring the land.
(3.) THE declaration under section 6 of the Act was made as far back as August 25, 1975. THE possession of the land was not taken till the petitioners filed the writ petition in 1980. It only indicates that there was no urgency to eliminate the enquiry under section 5-A. If the authorities were not serious to take possession of the land for a little over five years, we fail to understand why the inquiry under section 5-A should be dispensed with. It is well settled that the nature of urgency required for dispensing with the inquiry under section 5-A should be such an urgency that even summary proceedings under section 5-A of the Act should be eliminated. It is not just the existence of urgency to acquire the land, but the need to dispense with the inquiry under section 5-A which has to be considered -See Narain Govind Gavata v. State of Maharashtra, AIR 1977 SC 183.;