Possession cannot be taken prior to the promulgation of a declaration under Section 6 for land acquisition.

Petitioners in both these cases challenge the proceedings initiated for acquisition of land for the purposes of conversion of Kollam-Punalur meter-gauge railway line as broad-gauge. Petitioners in both the cases concede that notification under Section 4(1) of the Land Acquisition Act has been promulgated as per Ext.P1. The Petitioners have now received notices under Section 9(3) of the Act which are produced as Ext.P2 in these cases. The petitioners apprehend that in exercise of the emergency powers under Section 17(4) of the Act, they are going to be dispossessed of their properties immediately. According to them, in theses cases, the declaration under Section 6 of the Land Acquisition Act has not been made and they are not liable to be dispossessed till such time as declaration under Section 6 is promulgated.

2. When these Writ Petitions came up for admission, I granted stay of dispossession temporarily and directed the Government Pleader to get instructions from the respondents as to whether declaration under Section 6 has been promulgated, On being informed that Section 6 declaration is yet to be promulgated, I have heard the submissions of Sri. M.S. Unnikrishnan representing M/s. Sukumaran and Usha on behalf of the petitioners and Sri. L. Aloysius Thomas, learned Government Pleader on behalf of the 1st respondent-state and the other two respondents. Arguments of the counsel were confined to the question as to whether in the absence of a declaration under Section 6 of the Land Acquisition Act, the land-owners are liable to be dispossessed in exercise of the powers under Section 17(1) or Section 17(2) of the Act.

3. According to Mr. Unnikrishnan, the issue as to whether the land in question is needed for a public purpose will attain finality only when the declaration under Section 6 is promulgated and only such a declaration will be exclusive evidence regarding the public nature of the need. Inviting my attention to Sections 4 and 6 of the Act, Mr. Unnikrishnan submitted that even in cases where the emergency provisions under Section 17 are invoked, a declaration under Section 6 is obligatory. He relied on the judgment of the Supreme Court in R.L. Jain v. DDA (2004)4 SCC 79) to support his arguments.

4. Sri. L. Aloysius Thomas, learned Government Pleader on the contrary submitted that this is a case where the emergency provisions under Section 17 have been invoked by the Government and therefore it is open to the Government to make the declaration under Section 6 at any time after the notification under Section 4(1). This, according to the learned Government Pleader, is clear from the language of Section 17(4) itself. He would cite the judgment of this court in Abdulla Kutty Haji v. State (1960 KLT 1029) as well as that of the Supreme Court in State of U.P. v. Pista Devi (AIR 1986 SC 2025) so as to fortify his submissions.

5. I have considered the rival submissions, the pleadings in the petitions, the relevant statutory provisions as well as the decisions cited at the Bar.

6. The notification envisaged under Section 4(1) of the Land Acquisition Act is a preliminary notification. Such notifications are promulgated by the Government when it appears to the Government that a particular land is needed for a public purpose or is lightly to be needed for a public purpose. If the acquisition is not a case of urgency, then the land Acquisition Officer holds an enquiry under Section 5-A on the basis of the objections received by him to the notification under Section 4(1) and hears the parties. Thereafter, the Land Acquisition Officer submits a report to the Government incorporating his recommendations regarding the objection raised by the parties to the notice under Section 4(1) as well as a record of the proceedings before him in the enquiry under Section 5A. It is the Government which takes the final decision regarding acquisition on the basis of the above report and thereafter the Government promulgates the declaration un