Essco Fabs Pvt. Ltd.
& ANR Vs. State of Haryana & ANR  INSC 1888 (7 November 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6580 OF 2008 ARISING OUT
OF SPECIAL LEAVE PETITION (CIVIL) NO. 15449 OF 2004 ESSCO FABS PVT. LTD. &
ANR. ... APPELLANTS VERSUS CIVIL APPEAL NO.6581 OF 2008 ARISING OUT OF SPECIAL
LEAVE PETITION (CIVIL) NO. 15544 OF 2004 THE PANIPAT TEACHERS (RECOGNISED
SCHOOLS)HOUSING CO-OPEATIVE SOCIETY LTD. & ANR. ... APPELLANTS VERSUS
CONTEMPT PETITION NO. 30 OF 2007 IN CIVIL APPEAL NO.6580 OF 2008 ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 15449 OF 2004 VERSUS 2 C.K. THAKKER, J.
these appeals are filed by the appellants being aggrieved and dissatisfied with
the judgment and order dated April 02, 2004, passed by the High Court of Punjab
& Haryana in Civil Writ Petition Nos. 1853 of 2003 and 2077 of 2002.
appreciate the controversy raised in the present appeals, relevant facts in
nutshell may be noted.
to the appellant Essco Fabs Pvt. Ltd. (`Essco' for short), the Government of
Haryana intended to acquire land for public purpose, viz., for utilization of
land as residential, commercial and industrial area in Sector Nos. 11, 12 and
25 Part-II by Haryana Urban Development Authority (`HUDA' for short).
For the said purpose,
the Government issued a notification under sub-section (1) of Section 4 3 of
the Land Acquisition Act, 1894 (hereinafter referred to as `the Act') on
December 15, 1982.
The land mentioned in
the said notification situated in village Kheri Nangal was sought to be
acquired. A final notification under Section 6 of the Act was issued on June
However, the land
acquisition proceedings could not be completed within the stipulated period and
the notifications lapsed and the land stood released.
was the case of Essco that it bought the land which was sought to be acquired
earlier for expansion of its Export Unit.
appellant, it is engaged in manufacturing and exporting rugs, cushions,
bed-spreads, bath mats, fabrics, kitchen towel, aprons, pot holders, gloves,
mitten, curtains, napkins, carpets, etc. It is Export Oriented Unit and earns
foreign exchange by export of goods manufactured in its unit. In the year 1992,
it exported materials over Rs.2 crores.
The appellant has
stated that on June 6, 1991, 4 it made an application to the Director, Town
& Country Planning, Haryana for permission for change of user of land. All
necessary documents were appended to the application. The Director, however,
vide an order dated September 5, 1991, rejected the permission on several grounds.
One of the grounds weighed with the Director for refusing the permission was
that the land in question was proposed to be acquired. The appellant has
produced a copy of the application as also an order of rejection thereof in the
present proceedings. But even thereafter no proceedings for acquisition of land
were initiated for many years.
August 1, 2001 i.e. after about twenty years of the first notification of 1982
and nine years after rejection of prayer of the appellant for change of user,
the Government of Haryana again issued notification under sub- section (1) of
Section 4 of the Act for acquisition of land for the development and
utilization for construction of road connecting 5 Sanauli Road with G.T. Road
for Sector 25 Part- II B, Urban Estate Panipat by HUDA. The land of the
appellant situated in village Kheri Nangal was sought to be included in the
clause' under Section 17 of the Act was applied and a valuable right of raising
objections under Section 5-A of the Act was taken away in an arbitrary manner.
On the very next day i.e. on August 2, 2001, final notification under Section 6
of the Act was issued by the Government.
is the case of the appellant that the preliminary notification under sub-section
(1) of Section 4 of the Act was required to be published in the manner laid
down in the Act.
But it had not been
published before issuance of final notification under Section 6 of the Act. The
final notification was, therefore, illegal and the appellant could not be
deprived of his property in a manner not known to law.
The right of the
appellant to own, possess and enjoy the property is not merely a Common Law 6
right but also constitutional right under Article 300A of the Constitution
which has a `flavour of fundamental right'. The acquisition proceedings, being
not in consonance with law were vitiated and liable to be quashed.
appellant, hence, filed Civil Writ Petition No. 1853 of 2003 in the High Court
of Punjab & Haryana by invoking Article 226 of the Constitution praying
therein for quashing and setting aside acquisition proceedings. The High Court
entertained the petition and granted status quo with regard to possession of
the land in question. Finally, however, by the impugned judgment it dismissed
The said order is
challenged by the appellant in this Court.
other appeal is filed by the Panipat Teachers (Recognized Schools) Housing
Co-operative Society Ltd. (`society' for short) challenging the acquisition
proceedings. It was the case of the society that pursuant to the representation
made by the society, the State 7 Government released 53 kanals and 8 marlas of
land by executing an agreement dated October 19, 1985 and by granting land in
favour of the society on conditions mentioned in the agreement. Possession of
land was handed over to the society. The land was demarcated and was carved out
into plots reserving requisite space for school, parks, temple, overhead water
tank, roads, green belt etc. The society got the site plan designed strictly in
accordance with HUDA Rules. The society invested huge amount, approximately
Rs.26 lakhs, for developing the land laying down sewer pipe lines, RCC Water
pipe lines, construction of roads and boundary walls etc. The site plan, however,
has not been cleared by the office of the Director, Town & Country
Planning, Haryana despite numerous attempts by the appellant-society. It is
alleged by the society that the matter was kept pending for oblique and
ulterior purposes on lame and untenable excuses. It is also stated by the
society that HUDA published public 8 notice in `Daily Bhaskar' dated November
10, 2000 demanding development charges thereby acknowledging that the society's
land has been rightly developed for teachers' colony. The public notice
informed and instructed those land/plot owners who were in arrears to pay all
the balance development charges and outstanding dues. No dues were shown as
against the appellant-society. Thus, there is nothing due and payable to HUDA
by the appellant.
all these material facts and with a view to cause serious prejudice to the
appellant-society, a notification under sub- section (1) of Section 4 of the
Act had been issued by the State for acquisition of land.
have already stated facts relating to the issuance of preliminary notification,
application of urgency clause under Section 17 and issuance of final
notification under Section 6 of the Act while narrating the facts in the first
case of Essco. It is, therefore, 9 not necessary to repeat all those facts in
the second matter.
appellant-society, in the circumstances, approached the High Court by filing
Civil Writ Petition No. 2077 of 2002 which was also decided along with the
petition of Essco and the petition of the appellant- society also came to be
writ petition (Civil Writ Petitin No. 3324 of 2003) was filed by M/s Lord Shiva
Exports, Panipat which also met with the same fate. Lord Shiv Exports, however,
has not approached this Court.
were issued by this Court and interim relief was granted. Respondents
thereafter appeared, affidavits and further affidavits were filed and the
matters were ordered to be posted for final hearing. That is how the matters
are before us.
have heard learned counsel for the parties.
learned counsel for the appellants Essco and Teachers' society have challenged
the acquisition on several grounds. It was contended that the land was not
needed for public purpose as set out in the notification of 2001 and, hence,
the acquisition is not legal or lawful. Moreover, initially an action was taken
for acquisition of land before more than a quarter century in the year 1982.
Final notification was also issued after more than one and half year of preliminary
notification, but even thereafter, nothing was done by the State and the
proceedings lapsed. Again, in 1991, when Essco applied for change of user of
land, the prayer was turned down, inter alia, on the ground that the land in
question was proposed to be acquired for public purpose.
Nothing was done by
the State for about a decade. Only in August, 2001, notification under Section
4 was issued. It was strongly urged by the learned counsel for the appellants
that preliminary notification was issued on 1 August 1, 2001 and urgency
clause was applied though there was no urgency at all. The notification was
published in the official gazette thereafter and in two daily newspapers on
August 10 and 12, 2001. Final notification under Section 6, however, was issued
immediately on the next day i.e. on August 2, 2001, of the issuance of
preliminary notification under sub-section (1) of Section
4. It was contended
that on the facts of the case, no urgency clause could have been invoked. Even
otherwise, the action was bad and de hors the Act since the conditions laid
down in sub-section (4) of Section 17 of the Act have not been complied with
inasmuch as there was neither grave urgency nor unforeseen emergency. It was
submitted that there was lethargy on the part of officers of the Government in
not taking steps for more than twenty years. The State cannot take undue
advantage of its negligence or inaction and deprive the owners of their right
to property 1 in purported exercise of power of eminent domain. The Act is an
expropriatory legislation which deprives a person of his property without his
consent. The provisions of the Act, hence, have to be construed strictly. It
was submitted that Section 5A confers a valuable right on the owners of land of
submitting objections against proposed acquisition and such right cannot be
taken away or curtailed by the State. On the facts of the case, invocation of
urgency clause was not only uncalled for being contrary to law but otherwise
arbitrary and unreasonable and on that ground also, the proceedings are liable
to be quashed. It was urged that the expression `the date of publication' has
been defined in sub-section (1) of Section 4 of the Act. While construing the
said connotation under Section 17, same meaning as contemplated under Section
4(1) has to be given. Since the final notification under Section 6 had not been
published as required by the Act after `the last date of publication' of
notification under 1 Section 4(1), the action is unlawful and is liable to be
set aside. It was asserted that no notice as required by Section 9 of the Act
had been issued nor payment of 80 percent of the compensation as required by
sub-section (3A) of Section 17 had been paid. There was also total
non-application of mind on the part of the State Government in not considering
the Government policy of granting exemption to functional units dealing with
handloom and other industries. On that count also, the proceedings are liable
to be dropped.
behalf of Teachers' Society, the learned counsel adopted all the contentions
raised on behalf of Essco. The learned counsel, however, further submitted that
the society prayed for allotment of land and the prayer was granted. An
agreement was entered into between the Authority and the society, possession of
land was handed over to the society, which has spent substantial amount of
several lakhs for development. Necessary permission was sought so 1 that
construction can be made which was also granted by the Authorities, requisite
charges which were to be paid had already been paid and no dues had been shown
so far as the appellant- society is concerned and yet the impugned action has
been taken mala fide and with ulterior motive though the land is not required
for public purpose. It was also submitted that even according to the
authorities, the land of the appellant-society does not come in `road line'. It
is situate at about 24 meters away (23.94 meters) from road line. It was,
therefore, submitted that the proceedings should be declared against the provisions
of law and may be quashed.
counsel for the respondents, on the other hand, submitted that the action of
the authorities is legal, lawful and in consonance with law. It was urged that
the land was required for public purpose, viz., for construction of road. For
acquisition of land, therefore, a notification was issued. It was 1 submitted
that there is no element of mala fide or colourable exercise of power which is
clear form the fact that even in early eighties, the land was sought to be
Since the proceedings
could not be completed within the stipulated period, they lapsed.
That, however, does
not mean that the land was not needed for public purpose or that the public
purpose disappeared or vanished. The counsel submitted that it was further
clear when the prayer of Essco for change of user of land in 1991 was rejected.
The applicant was told at that time also that the land was required for public
purpose. According to the counsel, Government machinery took some time but it cannot
be concluded that the land was not required by the State and only with a view
to deprive the appellants of their ownership rights acquisition proceedings had
notification of August 1, 2001 and August 2, 2001 under Sections 4 and 6 1 of
the Act respectively, it was submitted that both the notifications were in
consonance with law. A preliminary notification under sub- section (1) of
Section 4 of the Act was issued showing the intention of the State for
acquisition of land for public purpose. Since the acquisition was for
construction of road, it was covered by Section 17 of the Act and urgency
clause was rightly invoked and in exercise of power under sub-section (4) of
Section 17, inquiry contemplated by Section 5A of the Act had been dispensed
with. The action was in consonance with law and no grievance can be made
contending that the inquiry as contemplated by Section 5A and hearing of
objections were illegally dispensed with by the authorities. All actions were
consistent with the provisions of the Act and the appellants have no right to
make complaint against those actions. It was, therefore, submitted that the
High Court was wholly right in dismissing the 1 writ petitions and the appeals
have no substance.
we deal with the matter on merits, it would be appropriate if we notice the
relevant provisions of the Act. As the Preamble shows, the Act has been enacted
with a view "to amend the law for the acquisition of land for public
purposes (and for Companies)".
Section 3 is a
`definition clause' of various expressions used in the Act. Clause (f) defines
`public purpose' and the definition is `inclusive' in nature. Purposes
mentioned in Clauses (i) to (viii) are in the nature of `public purpose' and
the land can be acquired for any such purpose. Part II (Sections 4 to 17) deals
with `Acquisition'. Section 4 enables the appropriate Government to issue
preliminary notification for acquisition of land needed or likely to be needed
for public purposes. The said section is relevant and reads thus;
Section 4 -
Publication of preliminary notification and powers of officers 1 thereupon--
(1) Whenever it appears to the appropriate Government that land in any locality
is needed or is likely to be needed for any public purpose or for a company a
notification to that effect shall be published in the Official Gazette 1[and in
two daily newspapers circulating in that locality of which at least one shall
be in the regional language and the Collector shall cause public notice of the
substance of such notification to be given at convenient places in the said
locality 1[the last of the dates of such publication and the giving of such
public notice, being hereinafter referred to as the date of publication of the
(2) Thereupon it
shall be lawful for any officer, either, generally or specially authorised by
such Government in this behalf, and for his servants and workmen,-- to enter
upon and survey and take levels of any land in such locality;
to dig or bore in the
to do all other acts
necessary to ascertain whether the land is adapted for such purpose;
to set out the
boundaries of the land proposed to be taken and the intended line of the work
(if any) proposed to be made thereon;
1 to mark such
levels, boundaries and line by placing marks and cutting trenches, and, where
otherwise the survey cannot be completed and the levels taken and the
boundaries and line marked, to cut down and clear away any part of any standing
crop, fence or jungle:
Provided that no
person shall enter into any building or upon any enclosed court or garden
attached to a dwelling-house (unless with the consent of the occupier thereof)
without previously giving such occupier at least seven days' notice in writing
of his intention to do so.
5A is a salutary provision and enables any person interested in the land which
is notified under sub-section (1) of Section 4 as being needed or likely to be
needed for a public purpose to lodge objections against the proposed
acquisition. It is equally important provision and may be reproduced' Section
5A - Objections : Hearing of objections—
1. Any person interested
in any land which has been notified under section 4, Sub-section (1), as being
needed or likely to be needed for a public purpose or for a company may, within
thirty days from the date of the publication of the 2 notification, object to
the acquisition of the land or of any land in the locality, as the case may be.
2. Every objection under
sub-section (1) shall be made to the Collector in writing, and the Collector
shall give the objector an opportunity of being heard in person or by any
person authorised by him in this behalf or by pleader and shall, after hearing
all such objections and after making such further inquiry, if any, as he thinks
necessary, either make a report in respect of the land which has been notified
under section 4, sub-section (1), or make different reports in respect of
different parcels of such land, to the appropriate Government, containing his
recommendations on the objections, together with the record of the proceedings
held by him, for the decision of that Government. The decision of the
Appropriate Government on the objections shall be final.
3. For the purposes of
this section, a person shall be deemed to be interested in land who would be
entitled to claim an interest in compensation if the land were acquired under
comes Section 6 which authorizes the appropriate Government to issue final
notification as to declaration that the land is required for public purpose.
The said section is also material and reads as under;
6. Declaration that
land is required for a public purpose.-(1) Subject to the provisions of Part
VII of this Act, when the Appropriate Government is satisfied after considering
the report, if any, made under section 5A, sub-section (2), that any particular
land is needed for a public purpose, or for a company, a declaration shall be
made to that effect under the signature of a Secretary to such Government or of
some officer duly authorised to certify its orders an different declarations
may be made from time to time in respect of different parcels of any land
covered by the same notification under section 4, sub-section (!), irrespective
of whether one report or different reports has or have been made (wherever
required) under section 5-A, sub-section (2):
Provided that no
declaration in respect of any particular land covered by a notification under
section 4, sub-section (1),-- (i) published after the commencement of the Land
Acquisition (Amendment and Validation) Ordinance, 1967 but before the
commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after
the expiry of three years from the date of the publication of the notification;
or (ii) published after the commencement of the Land Acquisition (Amendment)
Act, 1984, shall be made after the 2 expiry of one year from the date of the
publication of the notification:
Provided further that
no such declaration shall be made unless the compensation to be awarded for
such property is to be paid by a company, or wholly or partly out of public
revenues or some fund controlled or managed by a local authority.
computing any of the periods referred to in the first proviso, the period
during which any action or proceeding to be taken in pursuance of the
notification issued under Section 4, sub-section (1), is stayed by an order of
a Court shall be excluded.
the compensation to be awarded for such property is to be paid out of the funds
of a corporation owned or controlled by the State, such compensation shall be
deemed to be compensation paid out of public revenues.
(2) Every declaration
shall be published in the Official Gazette, and in two daily newspapers
circulating in the locality in which the land is situate of which at least one
shall be in the regional language, and the Collector shall cause public notice
of the substance of such declaration to be given at convenient places in the
said locality (the last of the date of such publication and the giving of such
public notice, being hereinafter 2 referred to as the date of publication of
the declaration), and such declaration shall state] the district or other territorial
division in which the land is situate, the purpose for which it is needed, its
approximate area, and where a plan shall have been made of the land, the place
where such plan may be inspected.
(3) The said
declaration shall be conclusive evidence that the land is needed for a public
purpose or for a Company, as the case may be; and, after making such
declaration the Appropriate Government may acquire the land in manner
9 requires issuance of notice to persons interested. Section 11 requires
enquiry to be made and award to be passed by Collector. Section 16 authorises
the Collector to take possession of the land acquired under the Act. Thereupon,
the land vests absolutely in the Government free from all encumbrances.
17 is an exception to the normal rule of acquisition of land and deals with
cases of urgency and emergency. The provision is of extreme importance and may
be quoted in extenso.
17. Special powers in
cases of urgency.-(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 waste or arable land needed for
a public purpose]. Such land shall thereupon vest absolutely in the Government,
free from all encumbrances.
(2) Whenever, owing
to any sudden change in the channel of any navigable river or other unforeseen
emergency, it becomes necessary for any Railway administration to acquire the
immediate possession of any land for the maintenance of their traffic or for
the purpose of making thereon a river-side or ghat station, or of providing
convenient connection with or access to any such station, or the appropriate
Government considers it necessary to acquire the immediate possession of any
land for the purpose of maintaining any structure or system pertaining to
irrigation, water supply, drainage, road communication or electricity,] the
Collector may, immediately after the publication of the notice mentioned in
sub-section (1) and with the previous sanction of the appropriate Government,
enter upon and take possession of such land, which shall thereupon vest
absolutely in the Government free from all encumbrances.
2 Provided that the
Collector shall not take possession of any building or part of a building under
this sub- section without giving to the occupier thereof at least forty-eight
hours' notice of his intention so to do, or such longer notice as may be
reasonably sufficient to enable such occupier to remove his movable property
from such building without unnecessary inconvenience.
(3) In every case
under either of the preceding sub-sections the Collector shall at the time of
taking possession offer to the persons interested, compensation for the
standing crops and trees (if any) on such land and for any other damage
sustained by them caused by such sudden dispossession and not excepted in
section 24; and, in case such offer is not accepted, the value of such crops
and trees and the amount of such other damage shall be allowed for in awarding
compensation for the land under the provisions herein contained.
(3A) Before taking
possession of any land under sub-section (1) or sub- section (2), the Collector
shall, without prejudice to the provisions of sub-section (3),- (a) tender
payment of eighty per centum of the compensation for such land as estimated by
him to the persons interested entitled thereto, and 2 (b) pay it to them,
unless prevented by some one or more of the contingencies mentioned in section
31, sub-section (2), and where the Collector is so prevented, the provisions of
section 31, sub-section (2), (except the second proviso thereto), shall apply
as they apply to the payment of compensation under that section.
(3-B) The amount paid
or deposited under sub-section (3A), shall be taken into account for
determining the amount of compensation required to be tendered under section
31, and where the amount so paid or deposited exceeds the compensation awarded
by the Collector under section 11, the excess may, unless refunded within three
months from the date of the Collector's award, be recovered as an arrear of
(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 5A shall not apply, and,
if it does not so direct, a declaration may be made under section 6 in respect
of the land at any time after the date of the publication of the notification
under section 4, sub-section (1).
Part III relates to `Reference to Court and procedure thereon', Parts IV and V
2 deal with `Apportionment of compensation' and `Payment', respectively.
is vehemently contended on behalf of the appellants that on the facts and in
the circumstances of the case, the respondents could not have invoked `urgency
clause' by scuttling enquiry and dispensing with hearing of objections under Section
5A of the Act. It was submitted that no action could have been taken in view of
the circumstances mentioned earlier. As early as in 1982 proceedings were
initiated for acquisition of land but they were allowed to be lapsed in spite
of final notification under Section 6 of the Act by not taking appropriate
actions in time. Again, in 1991, when Essco Fabs applied for change of user of
land, request was turned down on the ground that the land was likely to be
needed for public purpose. It was, therefore, submitted that when preliminary
notification under Section 4 was issued in 2001, there was 2 no urgent need or
compelling necessity nor it was a matter of urgency or emergency under Section
17 of the Act which could justify the action and the proceedings are liable to
find considerable force in the above argument of the learned counsel for the
appellants. The scheme of the Act is clear which provides for issuance of
preliminary notification under sub-section (1) of Section 4 of the Act empowering
the appropriate Government to issue such notification for acquisition of land
needed or likely to be needed for any public purpose. Since the property
belongs to a private individual, unless there is a `public purpose' as defined
in clause (f) of Section 3 of the Act, no acquisition of land can be made. It
is in exercise of power of eminent domain that a sovereign may acquire property
which does not belong to him. In the circumstances, as a 2 general rule,
before exercise of power of eminent domain, law must provide an opportunity of
hearing against the proposed acquisition.
Even without a
specific provision to that effect, general law requires raising of objections
by and affording opportunity of hearing to the owner of the property. The Land
Acquisition (Amendment) Act, 1923 (Act 38 of 1923), however, expressly made
such provision by inserting Section 5A in the Act. It is, therefore, clear that
after issuance of preliminary notification under Section 4 before and final
notification under Section 6 of the Act, the appropriate Government is enjoined
to hear persons interested in the property before he is deprived of his
ownership rights. But then there may be cases of `urgency' or `unforeseen
emergency' which may brooke no delay for acquisition of such property in larger
public interest. The Legislature, therefore, thought it appropriate to deal
with 3 such cases of exceptional nature and in its wisdom enacted Section 17.
sub-section (1) of Section 17 deals with cases of `urgency', sub-section (2) of
the said section covers cases of `sudden change in the channel of any navigable
river or other unforeseen emergency'. But even in such cases i.e. cases of
`urgency' or `unforeseen emergency', enquiry contemplated by Section 5A cannot
ipso facto be dispensed with which is clear from sub-section (4) of Section 17
of the Act.
(4) of Section 17 is an enabling provision and it declares that if in the
opinion of the appropriate Government, the provisions of sub-section (1) or (2)
are applicable, it may direct that the provisions of Section 5A would not
apply. It is, therefore, clear that the Legislature has contemplated that there
may be `urgencies' or 3 `unforeseen emergencies' and in such cases, private
properties may be acquired. But, it was also of the view that normally even in
such cases, i.e. cases of urgencies or unforeseen emergencies, the owner of
property should not be deprived of his right to property and possession thereof
without following proper procedure of law as contemplated by Section 5A of the
Act unless the urgency or emergency is of such a nature that the Government is
convinced that holding of enquiry or hearing of objections may be detrimental
to public interest.
this connection, both the parties invited our attention to several decisions.
We will deal with some of the important decisions.
Nandeshwar Prasad & Anr. V. State of Uttar Pradesh & Ors, (1964) 3 SCR
425, the land was acquired by the Government for public purpose, viz. the
Kanupur Development Board 3 under the Kanpur Urban Area Development Act, 1945.
The Court considered the scheme of the Act that after issuance of preliminary
notification under Section 4 of the Act, objections are to be heard under
Section 5A of the persons interested in the property and thereafter final
notification under Section 6 can be issued. The Court, however, noted that to
that procedure, there is an exception under Section 17 which enables the
Government to apply urgency clause. Where an action is taken under sub-section
(4) of Section 17 of the Act, it is not necessary to follow procedure laid down
in Section 5A and notification under Section 6 can be issued without report
from the Collector as envisaged by Section 5A.
"It will be seen
that s. 17(1) gives power to the Government to direct the Collector, though no
award has been made under s. 11, to take possession of any waste or arable land
needed for public purpose and such land thereupon vests absolutely in the
Government free from all encumbrances. If action is taken under s. 17(1),
taking 3 possession and vesting which are provided in s. 16 after the award
under s. 11 are accelerated and can take place fifteen days after the
publication of the notice under s.9.
Then comes s. 17(4)
which provides that in case of any land to which the provisions of sub-s. (1)
are applicable, the Government may direct that the provisions of s. 5-A shall
not apply and if it does so direct, a declaration may be made under s. 6 in
respect of the land at any time after the publication of the notification under
s. 4(1). It will be seen that it is not necessary even where the Government
makes a direction under s.
17(1) that it should
also make a direction under s. 17(4). If the Government makes a direction only
under s. 17(1) the procedure under s.
5-A would still have
to be followed before a notification under s. 6 is issued, though after that
procedure has been followed and a notification under s. 6 is issued the
Collector gets the power to take possession of the land after the notice under
s. 9 without waiting for the award and on such taking possession the land shall
vest absolutely in Government free from all encumbrances. It is only when the
Government also makes a declaration under s. 17(4) that it becomes unnecessary
to take action under s. 5-A and make a report there under. It may be that
generally where an order is made under s.17(1), an order under s. 17(4) is also
passed; but in law it is not necessary that this should be so. It will also be
seen that under the Land 3 Acquisition Act an order under s. 17 (1) or s.
17(4) can only be passed with respect to waste or arable land and it cannot be
passed with respect to land which is not waste or arable and on which buildings
the above observations, it is clear that even in cases falling under or covered
by sub-sections (1) and (2) of Section 17 of the Act and the Government intends
to acquire land in cases of `urgency' or `unforeseen emergency', it is still
required to follow procedure under Section 5A of the Act before issuance of
final notification under Section 6 of the Act. It is only when the Government
also makes a declaration under sub- section (4) of Section 17 that it becomes
unnecessary to take recourse to procedure under Section 5A of the Act.
Prasad was decided by a three Judge Bench.
in Union of India & Ors. v. Mukesh Hans, (2004) 8 SCC 14, a similar 3
question came up for consideration before a three Judge Bench. There land was
sought to be acquired at Mehrauli by the appropriate Government for organizing
Anjuman-Saire-e-Gul- Faroshan. Proceedings were initiated under the Act and
urgency clause was applied. The notification mentioned the public purpose as
`Planned Development of Delhi'. It was also stated that Lt. Governor was of the
opinion that Section 17(1) of the Act was applicable to the acquisition and he
directed to dispense with inquiry under Section 5A of the Act.
declaration under Section 6 was issued. Intrested parties approached the High
Court of Delhi, inter alia, on the ground that decision to dispense with
inquiry contemplated by Section 5A of the Act was vitiated by non-application
of mind. The High Court upheld the contention and quashed the proceeding. The
aggrieved Union approached this Court.
was contended on behalf of the Union that in case of urgency, it was open to
the appropriate Government to dispense with inquiry under Section 5A by
invoking sub- section (4) of Section 17 of the Act. It was also contended that
the urgency contemplated by sub-sections (1) or (2) of Section 17 of the Act
was `by itself' sufficient to invoke sub- section (4) of Section 17.
the contention and referring to Nandeshwar Prasad and other judgments, the
perusal of the above Section shows that Sub-section (1) of Section 17
contemplates taking possession of the land in the case of an urgency without
making an award but after the publication of Section 9(1) notice and after the
expiration of 15 days of publication of Section 9(1) notice.
Therefore it is seen
that if the appropriate Government decides that there is an urgency to invoke
Section 17(1) in the normal course Section 4(1) notice will have to be
published, Section 6 declaration will have to be made and after completing the
procedure contemplated under Sections 7 and 8, 9 (1) notice will have to be
given and on expiration of 15 days from the date of 3 such notice the
authorities can take possession of the land even before passing of an award.
Sub-section (2) of
Section 17 contemplates a different type of urgency inasmuch as it should be an
unforeseen emergency. Under this Section if the appropriate Government is
satisfied that there is such unforeseen emergency the authorities can take
possession of the land even without waiting fort 15 days period contemplated
under Section 9(1).
Therefore, in cases,
where Government is satisfied that mere is an unforeseen emergency it will have
to in the normal course, issue a Section 4(1) notification, hold 5A inquiry,
make Section 6 declaration, and issue Section 9(1) notice and possession can be
taken immediately thereafter without waiting for the period of 15 days
prescribed under Section 9(1) of the Act.
Section 17(4) as
noticed above provides that in cases where the appropriate Government has come
to the conclusion that there exists an urgency or unforeseen emergency as
required under Sub-sections (1) or (2) of Section 17 it may direct that the
provisions of Section 5A shall not apply and if such direction is given then 5A
inquiry can be dispensed with and a declaration may be made under Section 6 on
publication of 4(1) notification possession can be made".
Court, therefore, proceeded to state;
perusal of this provision which is an exception to the normal mode of
acquisition contemplated under the Act shows mere existence of urgency or
unforeseen emergency though is a condition precedent for invoking Section 17(4)
that by itself is not sufficient to direct the dispensation of 5A inquiry. It
requires an opinion to be formed by the concerned government that along with
the existence of such urgency or unforeseen emergency there is also a need for
dispensing with 5A inquiry which indicates that the Legislature intended that
the appropriate government to apply its mind before dispensing with 5A inquiry.
It also indicates the mere existence of urgency under Section 17(1) or
unforeseen emergency under Section 17(2) would not by them selves be sufficient
for dispensing with 5A inquiry. If that was not the intention of the
Legislature then the latter part of Sub-section (4) of Section 17 would not
have been necessary and the Legislature in Section 17(1) and (2) itself could
have incorporated that in such situation of existence of urgency or unforeseen
emergency automatically 5A inquiry will be dispensed with. But then that is not
language of the Section which in our opinion requires the appropriate
Government to further consider the need for dispensing with 5A inquiry in spite
of the existence of unforeseen emergency. This understanding of ours as to the
3 requirement of an application of mind by the appropriate Government while
dispensing with 5A inquiry does not mean mat in and every case when there is an
urgency contemplated under Section 17(1) and unforeseen emergency contemplated
under Section 17(2) exists that by itself would not contain the need for
dispensing with 5A inquiry. It is possible in a given case the urgency noticed
by the appropriate Government under Section 17(1) or the unforeseen emergency
under Section 17(2) itself may be of such degree that it could require the appropriate
Government on that very basis to dispense with the inquiry under Section 5A but
then there is a need for application of mind by the appropriate Government that
such an urgency for dispensation of the 5A inquiry is inherent in the two types
of urgencies contemplated under Section 17 (1) and (2) of the Act".
learned counsel for the respondent authorities, however, strongly relied upon a
two Judge Bench decision of this Court in Jai Narain & Ors. v. Union of
India & Ors., (1996) 1 SCC 9. In Jai Narain, the Court held that the
question of `urgency' or `unforeseen emergency' is the mater which is entirely
based on `subjective satisfaction of the Government' and the Courts do not
interfere unless the reasons 4 given are wholly irrelevant and there is non-
application of mind. If the public purpose, on the face of it shows that the
land is needed urgently, that by itself is relevant circumstance for justifying
the action under Section 17(4) of the Act.
a similar view was taken by a two Judge Bench in Chameli Singh & Ors., v.
State of U.P. & Anr., (1996) 2 SCC 549. In Chameli Singh, land was acquired
for public purpose, namely, construction of houses for dalits. Urgency clause
under Section 17 was applied which was challenged by the land- owners. Holding
that the urgency clause was rightly applied and inquiry under Section 5A of the
Act has been correctly dispensed with, the Court observed that acquisition of
land for providing houses to dalits, tribes and poor would be sufficient to
invoke Section 17 of the Act and the land-owners cannot challenge the validity
of such acquisition on the ground that 4 inquiry under Section 5A cannot be
The Court stated;
"It would thus
be seen that this Court emphasised the holding of an inquiry on the facts
peculiar to that case. Very often the officials, due to apathy in
implementation of the policy and programmes of the Government, themselves adopt
dilatory tactics to create cause for the owner of the land to challenge the
validity or legality of the exercise of the power to defeat the urgency
existing on the date of taking decision under Section 17(4) to dispense with
Section 5-A inquiry.
It is true that there
was pre- notification and post-notification delay on the part of the officers
to finalise and publish the notification.
But those facts were
present before the Government when it invoked urgency clause and dispensed with
inquiry under Section 5A. As held by this Court, the delay by itself
accelerates the urgency: Larger the delay, greater be the urgency. So long as
the unhygienic conditions and deplorable housing needs of Dalits, Tribes and
the poor are not solved or fulfilled, the urgency continues to subsist When the
Government on the basis of the material, constitutional and international
obligation, formed its opinion of urgency, the Court, not 4 being an appellate
forum, would not disturb the finding unless the court conclusively finds the
exercise of the power male fide. Providing house sites to the Dalits, Tribes
and the poor itself is a national problem, and a constitutional obligation. So
long as the problem is not solved and the need is not fulfilled, the urgency
continues to subsist. The State is expending money to relieve the deplorable
housing condition in which they live by providing decent housing accommodation
with better sanitary conditions. The lethargy on the part of the officers for
pre and post-notification delay would not render the exercise of the power to
invoke urgency clause invalid on that account".
First Land Acquisition Collector & Ors., v. Nirodhi Prakash Gangoli &
Anr., (2002) 4 SCC 160, a two Judge Bench again observed that case of existence
of urgency under Section 17 of the Act is a matter of subjective satisfaction
of appropriate Government and a decision of Government to dispense with inquiry
under Section 5A by invoking urgency provision can be challenged only on the
ground of non- application of mind or mala fide exercise of power by the
Government. Burden is always on 4 the person alleging mala fide to prove it on
the basis of specific materials. So long as the purpose of acquisition
continues to exist, exercise of power under Section 17 cannot be held to be
mala fide. Mere delay of the Government subsequent to its decision to dispense
with inquiry under Section 5A by exercising power under Section 17 would not
invalidate the decision.
the basis of above decisions, it was submitted that once a decision has been
taken by the State Government to apply urgency clause, the decision of the
Government cannot be interfered with by a Court exercising writ jurisdiction.
our judgment, from the above case law, it is clear that normal rule for
acquisition of land under the Act is issuance of notification under sub-section
(1) of Section 4, hearing of objections under Section 5A and 4 issuance of
final notification under Section 6 of the Act. Award will be made by the
Collector, notice has to be issued to the land- owners or the person interested
and thereafter possession can be taken. Section 17, no doubt, deals with
special situations and exceptional circumstances covering cases of `urgency'
and `unforeseen emergency'. In case of `urgency' falling under sub-section (1)
of Section 17 or of `unforeseen emergency' covered by sub-section (2) of
Section 17, special powers may be exercised by appropriate Government but as
held by a three Judge Bench decisions before more than four decades in
Nandeshwar Prasad and reiterated by a three Judge Bench decision in Mukesh
Hans, even in such cases, inquiry and hearing of objections under Section 5A
cannot ipso facto be dispensed with unless a notification under sub-section (4)
of Section 17 of the Act is issued. The legislative scheme is amply clear which
merely enables the appropriate Government to issue such notification under
sub- 4 section (4) of Section 17 of the Act dispensing with inquiry under
Section 5A if the Government intends to exercise the said power. The use of the
expression `may' in sub-section (4) of Section 17 leaves no room of doubt that
it is discretionary power of the Government to direct that the provisions of
Section 5A would not apply to such cases covered by sub-section (1) or (2) of
Section 17 of the Act.
our opinion, therefore, the contention of learned counsel for the respondent
authorities is not well founded and cannot be upheld that once a case is
covered by sub-section (1) or (2) of Section 17 of the Act, sub-section (4) of
Section 17 would necessarily apply and there is no question of holding inquiry
or hearing objections under Section 5A of the Act. Acceptance of such
contention or upholding of this argument will make sub-section (4) of Section
17 totally otiose, redundant and nugatory.
is true that in Chameli Singh and Jai Narain, a two Judge Bench has observed
that acquisition of land for housing accommodation or for construction of
residential quarters for dalits and tribals can be said to be of an urgent
nature falling under Section 17(1) of the Act. But as already held in
Nandeshwar Prasad and Mukesh Hans, even in such cases, procedure required to be
followed under Section 5A cannot be dispensed with unless notification under
sub-section (4) of Section 17 is issued.
In Mukesh Hans, the
Court also held that the provision cannot be pressed in service by officers who
were negligent and due to their lethargy, proceedings could not be initiated
for a quite long time.
the instant case, the facts are eloquent. Initial action of acquisition of land
was taken as early as in 1982 but the proceedings lapsed. In 1991, when Essco
made an application praying for change of user of land, 4 it was rejected on
the ground that the land was likely to be required for public purpose.
Nothing, however, was
done for about a decade.
It is only in 2001
that again Notification under Section 4 was issued and urgency clause was
applied. We are, therefore, satisfied that the ratio lad down in Mukesh Hans
squarely applies to the facts of the case. No urgency clause could have been
invoked by the respondents and inquiry and hearing of objections provided by
Section 5A of the Act could not have been dispensed with. The actions of
issuance of urgency clause under sub-section (4) of Section 17, dispensing with
inquiry under Section 5A and issuance of final notification under sub-section
(1) of Section 6 are required to be quashed and they are accordingly quashed.
learned counsel for the appellant also contended that even if it is held that
the respondent could have issued final notification 4 without holding inquiry
and hearing of objections under Section 5A of the Act, the notification under
Section 6 of the Act is illegal and unlawful in view of the fact that the said
notification has not been issued after the last of the dates of the publication
and giving of public notice referred to as "the date of publication of the
notification" under sub-section (1) of Section 4 of the Act.
was submitted that even the said point is concluded by a decision of this Court
in State of Uttar Pradesh & Ors. v. Radhey Shyam Nigam & Ors, (1989) 1
learned counsel for the respondents, on the other hand, relying on State of
Haryana & Anr. v. Raghubir Dayal, (1995) 1 SCC 133 and Mohan Singh &
Ors. v. International Airport Authority of India & Ors., (1997) 9 SCC 132
submitted that if urgency clause under Section 17(4) is applied 4 by the
appropriate Government, final notification under Section 6 of the Act can be
issued on the next day of the issuance of preliminary notification under
Section 4 of the Act. In the case on hand, the said procedure is followed. Notification
under Section 4 was issued on August 1, 2001. Urgency clause was applied and
the case was covered by Section 17 (4) of the Act. On the very next day i.e. on
August 2, 2001, final notification under Section 6 was issued. Therefore, the
procedure required by law has been strictly followed as held by this Court in
Raghubir Dayal and Mohan Singh.
would have entered into the said question had it been absolutely necessary for
us to decide it in the case on hand. But as observed hereinabove, we are of the
view that the appellants are entitled to succeed on the first ground that on
the facts and in the circumstances of the case, the appropriate 5 Government
was not justified in invoking urgency clause under sub-section (4) of Section
17 of the Act by dispensing with inquiry and hearing of objections under
Section 5A of the Act and the final notification issued under Section 6 of the
Act deserves to be set aside on that ground alone, we express no opinion one
way or the other on the interpretation of the expression "the date of
publication of the notification" used in sub-section (1) of Section 4,
sub-section (4) of Section 17 and Section 6 of the Act.
the foregoing reasons, both the appeals are allowed. The action of the
respondent authority of dispensing with the inquiry and hearing of objections
under Section 5A and issuance of final notification under Section 6 of the Act
is hereby quashed and set aside. It is, however, open to the authorities to
take appropriate action after following normal procedure laid down in the Act.
are accordingly allowed with costs.
NO.30 OF 2007 IN C.A.NO. ............... OF 2008 @ S.L.P. (C)NO. 15449 OF 2004
54. In the light of
judgment in the above appeals, the contempt petition stands disposed of.