(1.) THE two appeals have been filed under Section 2 (1) of the Madhya pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the orders dated 14th January, 2008 passed by the learned Single Judge in W. P. No. 16250/2007 and W. P. No. 16752/2007.

(2.) THE material facts briefly are that for the Onkareshwar Dam, lands of several villagers were acquired and the displaced villagers were required to be rehabilitated in other localities. A Task Force was constituted for identifying the localities in which the displaced villagers were to be rehabilitated. On the basis of the recommendation of the Task Force, lands were acquired for rehabilitation of the displaced villagers and rehabilitation sites were established. One of the rehabilitation sites, namely Inpun rehabilitation site, as initially planned, was to comprise of 1200 plots, but more and more displaced villagers preferred plots at this Inpun rehabilitation site because amenities like Primary, middle and High Schools, Panchayat Bhawan etc. were available in this rehabilitation site. The Task Force therefore recommended acquisition of 31. 70 hectares of additional land for extension of the Inpun rehabilitation site. On the basis of the recommendation of the Task Force, the Executive Engineer, narmada Development Division No. 32, Badwah recommended for immediate acquisition of additional land in his proposal dated 29-10-2007. Thereafter, 17. 52 hectares of land were acquired by notification dated 7-11-2007 issued under Section 4 (1) of the Land Acquisition Act, 1894 (for short the) in revenue Case No. 30/a-82/06-07 but the remaining additional land could not be acquired because of objections of the land owners before issuance of a notification under Section 4 of the. The Collector, East Nimar, Khandwa district in his letter dated 7-11-2007 sent a proposal to the Commissioner, indore Division, M. P. for immediate acquisition of 11. 04 hectares of land and the properties standing thereon and for permission for acquisition under section 17 (1) of theand for a separate permission to dispense with the provisions of Section 5-A of theby invoking powers under Section 17 (4) of theand for issuance of a declaration under Section 6 of theimmediately after acquisition under Section 4 (1) of the. The Commissioner, Indore division then issued an order dated 15-11-2007 granting permission to collector, District Khandwa under Section 17 of thefor acquisition of agricultural and measuring 11. 04 hectares in Village Inpun, Tehsil Khandwa, district Khandwa and, thereafter, a declaration was issued on 26-11-2007 in respect of the land which was sought to be acquired. The appellants who were owners of land covered by the order dated 15-11-2007 issued under Sections 17 and the declaration dated 26-11-2007 under Section 6 of thefiled two writ petitions under Article 226 of the Constitution numbered as W. P. No. 16250/2007 and W. P. No. 16752/2007. The learned Single Judge initially directed maintenance of status quo regarding possession of land by both the parties, but after hearing the parties dismissed the writ petitions by the impugned order dated 14th January, 2008. Aggrieved, the appellants have filed the two appeals.

(3.) MR. Hemant Shrivastava, learned Counsel for the appellants submitted that the learned Single Judge has dismissed the writ petitions filed by the appellants relying on Ramniklal N. Bhutta Vs. State of Maharashtra, AIR 1997 SC 1236 [LQ/SC/1996/1959] , in which the Supreme Court has taken a view that in land acquisition matters, the High Court will not exercise its jurisdiction under article 226 of the Constitution merely on the making out of the legal point but only for furtherance of interests of justice and that the Court will have to weigh the public interest vis-a-vis the private interest while exercising its discretionary powers under Article 226 of the Constitution. He submitted that the learned single Judge has also relied on the observations of the Supreme Court in First land Acquisition Collector Vs. Nirodhi Prakash, (2002) 4 SCC 160 [LQ/SC/2002/330] , that the question of urgency and acquisition under Section 17 (1) and (4) of theis a matter of subjective satisfaction of the State Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. He submitted that the learned Single Judge has lost sight of the judgments of Supreme Court in which it has been held that the right to be heard in an inquiry under Section 5-A of theis a valuable right of a land owner and this valuable right cannot be dispensed with arbitrarily and without application of mind by the Government under Section 17 (4) of theto the question whether it is necessary in a particular case of acquisition of land to dispense with the inquiry under Section 5-A of the. In support of this contention, he relied on decisions of the Supreme Court in Nandeshwar Prasad and others Vs. U. P. Government and others, AIR 1964 SC 1217 [LQ/SC/1963/132] , Raja Anand brahma Shah Vs. State of U. P. and others, AIR 1967 SC 1081 [LQ/SC/1966/189] , Ishwarlal girdharlal Joshi Vs. State of Gujarat and another, AIR 1968 SC 870 [LQ/SC/1967/330] , Narayan govind Gavate and others Vs. State of Maharashtra and others, (1977) 1 SCC 133 [LQ/SC/1976/368] , Om Prakash and another Vs. State of U. P. and others, (1998) 6scc1, Union of India and others Vs. Mukesh Hans, (2004) 8 SCC 14 [LQ/SC/2004/1060] , Union of India and others vs. Krishan Lal Arneja and others, (2004) 8 SCC 453 [LQ/SC/2004/629] , Union of India and others vs. Deepak Bhardwaj and others, AIR 2004 SC 3289 [LQ/SC/2003/711] . He further submitted that in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and others, (2005) 7 SCC 627 [LQ/SC/2005/944] , the Supreme Court has held that the right to make objections under Section 5-A of theis akin to a fundamental right having regard to article 300-A of the Constitution and therefore this right cannot be easily dispensed with by a mechanical order passed by the Government under Section 17 (4) of the. He submitted that the view taken by the learned Single Judge in the impugned order that the Court cannot examine in a judicial review the decision of the Government to invoke the provisions of sub-sections (1) and (4)of Section 17 of theand dispense with the inquiry under Section 5-A of the act is not correct in law.

(4.) MR. R. N. Singh, learned Advocate General, appearing for the respondents, on the other hand, submitted that the Onkareshwar Project is an important power and irrigation time bound project of the Government of madhya Pradesh for which land of various villagers had to be acquired and the villagers, many of whom are Scheduled Castes, had to be rehabilitated in rehabilitation sites as early as possible by acquiring and developing land. He submitted relying on the returns filed by the respondents that at the Inpun rehabilitation site developed for rehabilitation of the displaced villagers, there are amenities like Primary, Middle and High Schools, Panchayat Bhawan etc. and for this reason the displaced villagers have shown their preference for the inpun rehabilitation site and therefore additional land was recommended to be acquired by the Task Force. He submitted that on the basis of the recommendation of the Task Force, the Executive Engineer, Narmada development Division No. 32, Badwah recommended for immediate acquisition of additional land rehabilitation of the displaced villagers and the collector sent a proposal dated 7-11-2007 for immediate acquisition of land measuring 11. 04 hectares and also sought separate permission for invocation of section 17 (1) of theand Section 17 (4) of theand the Commissioner, indore Division exercising powers of the Government delegated to him issued the order dated 15-11-2007 for acquisition of land dispensing with the inquiry under Section 5-A of thein accordance with Section 17 (4) of the. He submitted that there was total application of mind to the urgency of acquiring additional land in Inpun rehabilitation site and to the need for dispensing with the inquiry under Section 5-A of theand therefore this is not a fit case in which High Court in exercise of its powers under Article 226 of the Constitution should interfere with the decision of the Government to acquire the additional land by dispensing with the inquiry under Section 5-A of the. He submitted that the learned Single Judge was therefore right in dismissing the writ petitions by relying on the judgments of the Apex Court in Ramniklal N. Bhutta Vs. State of Maharashtra and First Land Acquisition Collector Vs. Nirodhi Prakash (supra).

(5.) SUB-SECTIONS (1) and (4) of Section 17 of theare quoted herein below:-

"17. (1) In cases of urgency, whenever the appropriate government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.

(2)*** *** ***

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(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5- A shall not apply, and, if it does so direct a declaration may be made under Section 6 in respect of the land at any time after the date of publication of the notification under Section 4, sub-section (1). "

(6.) SUB-SECTIONS (1) and (4) of Section 17 of thearose for interpretation in Union of India Vs. Mukesh Hansh (supra), and the Supreme court after considering its earlier decisions held that mere existence of urgency under Section 17 (1) of thethough is a condition precedent for invoking section 17 (4) by itself is not sufficient to direct the dispensation of Section 5- A inquiry and the Government must form a clear opinion that along with the existence of such urgency, there is also a need for dispensing with the Section 5- A inquiry. In the aforesaid case, in almost all the notings in the file, there was no reference to the need for invoking Section 17 (4) of theand these facts coupled with the findings of the High Court led the Supreme Court to hold that the decision of the Lieutenant Governor to dispense with Section 5- A inquiry suffered from the vice of non-application of mind.

(7.) SUB-SECTIONS (1) and (4) of Section 17 of thewere again interpreted in Union of India and others Vs. Krishanlal Arneja (supra), and the supreme Court relying upon its earlier decisions held that even when there is no statement about the existence of urgency in the notification issued under section 4 (1) read with Section 17 (1) of the Act, the Government could justify the urgency and the need to dispense with the enquiry under Section 5- A by invoking Section 17 (4) by reference to the surrounding circumstances, the nature of the public purpose, the real urgency that the situation demands etc. and the records of the case. The Supreme Court further held that in every case of urgency for acquisition of land covered under sub-section (1) of Section 17 of thethe normal procedure laid down in Section 5- A cannot be dispensed with and it is only when the Government after application of mind finds that there is need to dispense with the inquiry under Section 5-A of thethat such a direction can be given by the Government under Section 17 (4) of the. In this case, the Supreme Court found that even after the Government took a decision to acquire the property in question, for almost two years no proceedings were initiated to acquire the property and all of a sudden the property was sought to be acquired by dispensing with the valuable right of the owners under Section 5-A of the.

(8.) REGARDING the scope of judicial review in respect of orders under sections 17 (1) and 17 (4) of the, the Supreme Court observed in First Land acquisition Collector Vs. Nirodhi Prakash Gangoli and others, (supra):-

"the question of urgency of an acquisition under Section 17 (1) and (4) of theis a matter of subjective satisfaction of the government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers under sections 17 (1) and (4) of the Act, and issues notification accordingly, the same should not be interfered with by the Court unless the Court comes to the conclusion that the Appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the Appropriate Authority malafide. "

(9.) KEEPING in mind the law laid down by the Supreme Court in the aforesaid decision, we may now examine the facts of the present case. The english Translation of the letter dated 7-11- 2007 of the Collector and the order dated 15-11-2007 passed by the Commissioner on behalf of the Government under Section 17 (1) and (4) of theare extracted herein below:-

(10.) IT will be clear from the proposal contained in the letter dated 7-11-2007 of the Collector, extracted above, that the purpose for which the land was being acquired was extension of the rehabilitation site at Inpun for rehabilitation of displaced persons of the Omkareshwar Project. The omkareshwar Project is a dam being constructed for irrigation as well as generation of power in the State of Madhya Pradesh and is a time bound project and law is well settled that before submergence of any village by the dam is allowed, the rehabilitation of the people of the village must be completed. Thus, the nature of the public purpose for which the land was acquired itself warranted invocation of the urgency clause under Section 17 (1) of theand for this reason, the Collector had made-request in the proposal for permission for application of Section 17 (1) of thefor early acquisition of the agricultural land and the properties situated thereon.

(11.) IT further appears from the proposal contained in the letter dated 7-11-2007 of the Collector that permission was requested not only for application of Section 17 (1) of thebut also under Section 17 (4) of theso that the provisions of Section 5-A of thewere dispensed with and the declaration under Section 6 could be issued immediately after issuance of notification under Section 4 (1) of the. The reason for invocation of the provisions of Section 17 (4) of thegiven in Paragraph 7 of the reply filed by the respondents in W. A No. 129 of 2008 is that before acquisition of the said land, certain objections and complaints were submitted by the land owners to the respondents on 27-4-2007 before issuance of notification under Section 4 of theon 7-11-2007 and hence the acquisition of the land for the urgent purpose of rehabilitating the villagers at the Inpun rehabilitation site would be delayed. Mr. Shrivastava argued that this cannot be a reason for dispensing with the enquiry under Section 5-A of the Act, particularly when for part of the land acquired for the same purpose, the provisions of Section 5-A of thewere not dispensed with. We are unable to accept this argument of Mr. Shrivastava. If part of the land is acquired without any objections from the land owners speedily soon after issuance of notification under Section 4 (1) of thebut the acquisition of other part of the land was being delayed because of the objections of the land owners, to expedite the acquisition for the urgent purpose and to avoid the delay of the enquiry under Section 5-A of the Act, the Government could invoke the provisions of Section 17 (4) of theand dispense with the enquiry under Section 5-A of the. The proposal contained in the letter dated 7-11-2007 of the Collector and the order dated 15-11-2007 passed by the commissioner on behalf of the Government as well as the records of this case would thus show clear application of mind to not only the need for invoking the urgency clause under Section 17 (1) of thebut also to the necessity of dispensing with the enquiry under Section 5-A of thein exercise of powers under Section 17 (4) of the. Hence, the requirements of sub-sections (1) and (4) of Section 17 of the Act, as explained by the Supreme Court in the cases of union of India Vs. Mukesh Hans and Union of India Vs. Krishanlal Arneja (supra), cited by Mr. Shrivastava are met and the contention of the appellants that invocation of Section 17 (1) and (4) of thewas vitiated by non-application of mind or by malafide is thus misconceived.

(12.) MR. Shrivastava submitted that there were Government lands near the Inpun rehabilitation side which could be utilized by the Government for the purpose of rehabilitation at Inpun site and therefore, acquisition of the land of the appellants was unreasonable, arbitrary and in violation of fundamental rights of the appellants as enshrined under Arts. 14, 19 and 21 of the constitution of India. He further submitted that the reason given for the acquisition of the land of the appellants that more and more oustees preferred sites at Inpun rehabilitation site cannot be accepted by the Court. We are afraid, the question whether other Government land was available and could be utilized for extension of the Inpun rehabilitation site and whether Government should not acquire land only because oustees preferred lands in the Inpun rehabilitation site are matters of the subjective satisfaction of the Government. So long as the acquisition of land is for a public purpose and the urgency for the acquisition of land for public purpose was such as to require not only invocation of the urgency clause under Section 17 (1) but also dispensing with enquiry under Section 5- A in exercise of the powers under Section 17 (4) of the Act, the court cannot interfere with the decision of the Government to acquire the land urgently by exercising its powers under Sections 17 (1) and 17 (4) of the. As has been held by the Supreme Court in First Land Acquisition Collector Vs. Nirodhi Prakash Ganguli and others (supra), once the Court finds that the government has applied its mind to need for invoking both sub-sections (1) and (4) of Section 17 of theand there is no malafide in such a decision of the government, the Court in exercise of its powers under Article 226 of the constitution will not interfere with such a decision of the Government.

(13.) WE, therefore, do not find any merit in these appeals and we accordingly dismiss the same and vacate the interim orders of status quo, dated 5-2-2008. No order as to costs.