Darshan Lal Nagpal
(dead) by L.R.S. Vs. Government of NCT of Delhi and others
[Civil Appeal No.
11169 of 2011]
J U D G M E N T
G. S. Singhvi, J.
questions which arise for consideration in this appeal are whether the Government
of NCT of Delhi could have invoked Section 17(1) and (4) of the Land Acquisition
Act, 1894 (for short, `the Act') and dispensed with the rule of hearing embodied
in Section 5A(2) thereof for the purpose of acquiring land measuring 80 bighas
15 biswas including 21 bighas 3 biswas belonging to the appellants for a public
purpose, namely, establishment of electric sub-station by Delhi Transco Limited
(for short, `DTL') at village Mandoli and whether the Division Bench of the
Delhi High Court had rightly negatived the appellants' challenge to the acquisition
of their land.
deciding the aforesaid questions, it will be useful to notice the events which
led to the issue of notification dated 13.10.2009 under Section 4(1) read with Section
17(1) and (4) of the Act and declaration dated 9.11.2009 under Section 6(1) of
is not clear from the pleadings of the parties and the record produced before the
High Court and this Court as to when the decision was taken to establish
400/220 KV sub-station at East of Loni Road but this much is evident that by a communication
sent in August, 2004, the DTL requested the Delhi Development Authority (for
short, `the DDA') for allotment of land. For the next about 10 months nothing appears
to have happened. Between June and October, 2005 different functionaries of DTL
made some correspondence inter-se in the matter of establishment of the
Manager (400/220 KV SS&L) sent a communication to the Commissioner (Planning),
DDA wherein he emphasized that establishment of the sub-station was necessary to
meet the power demand of East Delhi and particularly the upcoming Commonwealth
Games. In his reply dated 8.2.2006, Joint Director (MP), DDA informed the DTL that
allotment of sites suggested by it is not feasible because site `A' was
developed as a park and site `B' was earmarked as a community centre.
January, 2006 and July, 2008, the officers of the DTL, the DDA and the Government
of N.C.T. of Delhi exchanged letters on the issue of allotment of land for the
sub-station. While the officers of DTL stressed the need for early allotment of
land, the officers of the DDA repeatedly expressed their inability to allot the
particular site by pointing out that the same was reserved for other purpose.
On 28.07.2008, Secretary (Power), Government of NCT of Delhi-cum-CMD, DTL
requested the DDA to change the land use of the particular site and inform the
Government of N.C.T. of Delhi so that action could be taken for the acquisition
of land under Section 17 of the Act.
In that letter, it
was also mentioned that due to paucity of land, the DTL has proposed to
establish a GIS indoor type sub-station which could be accommodated in a space
of about 200 x 125 meters as against the original requirement of 700 x 500
meters. The relevant portions of that letter are extracted below: "In pursuance
of above, a meeting was held with Vice- Chairman, DDA on 06.05.2008 wherein a
request was made for the allotment of land in East Delhi. Officers of Delhi Transco
Limited, State Transmission Utility, along with Officers of DDA and the concerned
ADM of the area had identified the land in their joint inspection held on 30th
Copy of Khasra Nos.
and their Report is enclosed as Annexure-I. However, in the meantime DDA
informed that the land in question is not acquired by DDA. It was further informed
that as per Master Plan, Agriculture/Green area can be utilized for Utilities. Copy
of the letter No. F.6(4)2004/MP/D-127 dated 19.5.2008 is enclosed as Annexure-II.
Since the establishment of the Grid Station is of paramount importance for
strengthening the power supply in East Delhi, DDA is requested to change the
land use and to inform GNCTD so that action be taken for acquisition of the
same under Section 17, i.e., for the public utility.
Earlier it was
proposed to construct an outdoor 400/200 KV Grid Station but keeping in view
the paucity and availability of land DTL has now proposed to establish a GIS indoor
type sub-station which could be accommodated in a space of about 200 x 125
meters. It shall be appreciated if appropriate directions are issued to the
concerned officers for doing the needful expeditiously." (underlining is
about one month, Joint Secretary (Power) sent communication dated 9.9.2008 to
the Principal Secretary, Land and Building Department with the request that
action may be initiated for the acquisition of the identified piece of land by
invoking Section 17 of the Act. The relevant portions of that letter are
extracted below: "Hon'ble Prime Minister of India has laid the foundation for
1500 KV gas based power plant at Bawana on 24.03.2008 being constructed by Pragati
Power Corporation Limited, a company owned by Govt, of NCT of Delhi in order to
evacuate and utilize the generation from this plant for the benefit of Delhi, a
study was conducted by Central Electricity Authority which has recommended the
establishment of a 220 KV substation in East Delhi for evacuation of power.
Officers of Delhi
Transco Limited along with officers of DDA and concerned ADM have identified the
land measuring 200 M x 150 M in East Delhi for the proposed grid. Copy of
Khasra Nos. and their report is enclosed at Annexure-1. Sketch showing broad location
of the plot proposed to be acquired with Khasra Nos. of the proposed location
is at Annexure-II. DDA has informed that the land in question is not acquired by
DDA. However, as per Master Plan 2021, public utilities are permitted in all use
zones. In this regard, a copy of Director (Planning) DDA letter dated 19.05.2008
is enclosed as Annexure-III. The proposed site has already been taken up with VC,
DDA for change of land use (Annexure-IV).
The commissioning of
155 MW power plant at Bawana is scheduled before the Commonwealth Games in October-2010.
Therefore, keeping in view the urgency involved, kindly initiate the process for
acquisition of identified peace of land in East Delhi in favour of Department
of Power, GNCTD as provided under section 17 of the Land Acquisition Act at the
very earliest." (underlining is ours) Soon thereafter, the Land and
sent letter dated 30.9.2008 to Additional District Magistrate-cum-Land
Acquisition Collector (North-East) to send the following information/documents:
"1. Draft notification u/s 4, 6 and 17 along with the copy of Aks Sizra, field
book etc. 2. Report after conducting Joint Survey. 3. 80% estimated
compensation amount with Calculation Sheet."
about six months, Deputy General Manager (Planning-I), DTL sent letter dated
6.3.2009 to Deputy Secretary (Land Acquisition) and informed him that land
measuring 250 x 200 sq. mts. with approach road will be required to accommodate
the proposed three voltage level equipment as against the requirement of 200 x
125 sq. mts. indicated in the earlier communications. The concerned officer also
requested that the acquisition of 80 bighas 15 biswas land may be finalized as
per the joint site inspection carried out on 12.01.2009.
its part, the DDA sent letter dated 8.5.2009 to the Deputy Secretary (Land
Acquisition) that a joint site inspection be carried out for finalization of
the site. However, the latter sent communication dated 16.6.2009 to the DDA to
issue NOC required for initiation of the acquisition proceedings.
In September, 2009, the Land and Building Department of the Government of NCT of
Delhi prepared proposal for the acquisition of land measuring 200 x 125 sq.
mts. by invoking Sections 4 and 6 read with Section 17(1) and (4) of the Act. This
is evident from the notings recorded in paragraphs 56 to 61 and 63 to 65 of file
bearing No. F.S(11)/08/L&B/LA, which are extracted below:
requisition was received from Joint Secretary (Power) Department of Power for
acquisition of land measuring 200 x 125 Sq. m. identified in East Delhi for construction
of 400 x 200 KV grid station (Village Mandoli) vide their letter No. 7F.11(88)/2008/Power/2186
dated 09.09.2009 (P-6/C). Accordingly, the ADM/LAC (NE) was requested for draft
notifications and other revenue records vide letter dated 30.09.2008
(P-7/C).57. The ADM/LC (NE) vide his letter dated 31.01.2009 (P-28/C) forwarded
draft notification u/s 4 & 6 (P-26 & 27/C) for acquisition of land
measuring 80 Bigha 15 Biswa. Copy of Joint Survey Report (P-23/C), copy of
Field Book (P-20/C), copy of Asks Sizra (P-19/C) and Calculation Sheet for estimated
compensation amount (P-25/C).58.
The revenue staff scrutinized
the draft notification and some discrepancies have been found. The report of revenue
branch may be seen at page (P-5 & 6/N).59. Accordingly, LAC (NE) was requested
for clarification vide letter dated 2/3/09 (page-29/C). A clarification was
given by LAC (NE) in aforesaid context and may be seen at P-32 to 39/C. Report of
revenue branch may be seen at page 11 & 12/N. Letter dated 30/7/08 and 6/3/09
received from Delhi Transco Ltd. regarding change of proposal may be seen at
P.30 and 31/C.
Delhi Transco Ltd.
has given the justification for the change of proposal regarding requirement of
land, i.e., 80 Bigha 15 Biswa instead of 200 x 125 Sq.m.60. Vide letter No.F.6(4)2004-MP/265
dated 7/9/09 Jt. Director (MP) DD has informed that DDA has no objection with respect
to proposed location of land for establishing 400/200 KV ESS subject to compliance
of the following conditions:-a. Submission of a layout plan/location plan with description
of the land under reference be submitted to ascertain the boundaries of the
site.b. Justification for an area of 6.8 hact. against 2.96 hact. required for establishment
of 200/400 KV ESS as per MPD-2021 norms.
c. This is a Master Plan
level utility for which change of land use will be processed after land is
acquired. 8d. Submission of transmission route alignment plan as the surrounding
area is thickly populated.e. The site shall not be used for any other purpose other
than ESS.61. As the matter is urgent and related to Commonwealth Games, if
approved Hon'ble L.G. may be requested to kindly approve acquisition of land measuring
80 Bigha 15 Biswa as per the draft notifications placed opposite for acquisition
of land for establishment of 400 x 200 KV sub-station in village-Mandoli and
issuance of notification u/s 4 read with 17(4) and section 6 along with 17(1)
of Land Acquisition Act, 1894.
May kindly see the proposal
at page 21/N regarding acquisition of land measuring 80 Bigha 15 Biswa for
construction of 400 x 200 KV grid station in village Mandoli. The proposal has
been received from Power Department, Govt., of NCT of Delhi, which is available
at page 6/C. It has been mentioned in the proposal that Hon'ble Prime Minister
of India has laid the foundation stone for 155 MW gas based power plant at Bawana
on 24-3-2008 which is being constructed by Pragati Power Corporation Limited, a
company owned by Govt., of NCT of Delhi.
It has been also mentioned
in the proposal that to evacuate and utilize the generation from this plant for
the benefit of Delhi, a study was conducted by Central Electricity Authority which
has recommended the establishment of a 220 KV sub-station in East Delhi for
evacuation of power. The Power Department has requested that the acquisition of
the above said land may be proceeded with under the emergency provisions of the
Land Acquisition Act because 1500 MW power at Bawana is scheduled to be
commissioned before the Commonwealth Games, 2010.
The Land Acquisition Collector
(N/E) has prepared a draft notification under section 4 & 6 (page 26 &
27/C) after conduction the Joint survey report along with concerned department and
copy of the same is available at page 23/C along with relevant records. As per
the joint survey available at page 22/C and 23/C it appears that entire land is
laying vacant except to Bhattas (Brick Kiln) and boundary walls in 3 Khasras. 9
The DDA has also provided no objection for acquisition subject to certain conditions
as mentioned in letter dated 07-09-09, which is available at page 64/C.
From the proposal of the
Power Department it is clear that land is required for valid public purpose and
urgent need for acquisition of the land has also been justified by the Power Department.
Therefore, if approved, Hon'ble Lt. Governor may kindly be requested to approve
acquisition of land measuring 80 Bigha 15 Biswa as per the draft notification
placed opposite for the public purpose namely for establishing 400 x 200 KV
grid sub-station for Power Department in Village-Mandoli and issuance of notification
u/s 4 read with 17(4) and section 6 along with 17(1) of Land Acquisition Act,
Lieutenant Governor of Delhi accorded his approval on 26.9.2009 in the
following terms: "I have gone through the records and requirement of Delhi
Transco Ltd. for acquisition of land for Establishment of 400x200 kv station at
village Mandoli and the draft notifications prepared by LAC (North-East). I am
fully satisfied that the land measuring 80 Bigha 15 Biswa is urgently required
for above purpose. In view of the urgency of the scheme, I order that the
provisions of section 5A shall not apply and notifications under section 4 read
with 17(4), 6 & 17(1) of the Land Acquisition Act, 1894 be issued
immediately. Sd/- Tejendra Khanna Lt. Governor Delhi 26.09.2009."
compliance of the direction given by the Lieutenant Governor, the Government of
N.C.T. of Delhi issued notification dated 13.10.2009 10 under Section 4(1) read
with Section 17(1) and (4) for the acquisition of 80 bighas 15 biswas land. The
declaration issued under Section 6(1) was published vide notification dated 9.11.2009.
By another notification of the same date, Land Acquisition Collector (North-East),
Delhi was authorised to take possession of the land on the expiry of 15 days.
the appellants learnt about the proposed acquisition of their land, they made a
representation to the Member of the Legislative Assembly that as per Master
Plan of Delhi-2021 only 29.6 bigha land was required for the sub-station and that
barren land available in the area could be utilized for that purpose leaving
out their land. The concerned Member of the Legislative Assembly forwarded the representation
to the Government of NCT of Delhi on 28.4.2009 but the same did not yield the desired
result and the notifications were issued under Section 4(1) read with Section
17(1) and (4) and Section 6(1) of the Act. Thereupon, the appellants filed Writ
Petition No. 13376 of 2009 for quashing of notifications dated 13.10.2009 and 9.11.2009.
The main plank of their
challenge was that there was no urgency for the acquisition of land which could
justify invoking of Section 17(1) and (4) of the Act. They pleaded that more than
4 years time spent in the correspondence exchanged between the DTL, the State
Government and the DDA clearly shows that 11 there was no urgency in the establishment
of the sub-station and the cause put forward by the DTL in 2008-2009, namely,
the requirement of power for Commonwealth Games did not warrant invoking of Section
17(1) and (4) which resulted in depriving them of their property without being
further pleaded that the Lieutenant Governor had not applied mind on the issue
of urgency and approved the proposal prepared by the Land and Building
Department, Government of NCT of Delhi without satisfying himself that there was
emergent need for the acquisition of land for the purpose for which the proposal
had been initiated prior to August, 2004. The appellants also claimed that other
parcels of land including waste land belonging to the public authorities and the
Gaon Sabha were available, which could be utilized for establishing the sub-station
but, without examining the feasibility of acquiring an alternative piece of land,
the respondents arbitrarily deprived them of their property.
the counter affidavit filed on behalf of the Government of NCT of Delhi and the
Lieutenant Governor of Delhi it was averred that with a view to provide power
to the city of Delhi, 1500 MW gas based power plant was being constructed at Bawana
by a Government owned company, viz., Pragati Power Corporation Limited; that the
plant is scheduled to be commissioned in a time-bound manner in October, 2010
before the commencement of the Commonwealth Games; that in order to evacuate and
utilize the power generated from the new plant for the benefit of Delhi, the Central
Electricity Authority recommended establishment of 220 KV sub-station in East
Delhi; that after identifying the land in question the Power Department of Government
of NCT of Delhi made a request for initiation of the acquisition proceedings on
urgent basis; that on receipt of letter dated 9.9.2008, instructions were
issued to the Land Acquisition Collector to conduct a joint survey, prepare a
draft notification and also make calculation of 80 per cent of the estimated
compensation and that after taking all the necessary steps, a note was put up before
the Lieutenant Governor, who approved the proposal for the acquisition of land under
Section 4 read with Section 17(1) and (4) and also to dispense with the inquiry
envisaged under Section 5A of the Act.
It was also pleaded that
the beneficiary of the acquisition deposited a sum of Rs.9,27,11,840/- towards
80 per cent of the estimated compensation as required by Section 17(3A) of the Act,
which was remitted to the Land Acquisition Collector for payment. In Para 11 of
the counter affidavit it was averred that there is an urgent need of the land
for the purpose of construction of sub-station by the DTL in the larger public
a separate written statement filed on behalf of the DTL it was pleaded that decision
was taken by the Government to establish 400 / 220 KV grid sub-station to meet
the growing demand of power in Delhi and the establishment of the sub-station was
approved by Delhi Electricity Regulatory Commission vide order dated 16.6.2009.
In paragraphs 5 to 7 of the counter affidavit of the DTL reference was made to
the decision taken by the Government to construct 1500 MW Pragati III Power
Plant at Bawana IPGCL; 2 x 490 MW Thermal Power Stations at Dadri and 1500 MW Thermal
Station at Jhajjar and also to establish grid sub- stations for evacuation of
power from different plants.
According to the DTL,
as per the Master Plan of Delhi-2021, the minimum land required for establishment
of a conventional outdoor 400/220/66 KV sub-station is 60 acres but because of
scarcity of land, it was decided to establish an indoor GIS sub-station and for
that purpose 80 bighas land was required. It was also the pleaded case of the DTL
that the appellants' land was identified after inspections carried out by the
officers of the DDA, Land and Building Department, Land Acquisition Collector, Government
of 14NCT of Delhi and its own officers.
In paragraphs 13, 14
and 15 of the counter affidavit of the DTL, the following averments were made: "13.
That proposed 400KV sub-station cannot be established in the 30 bighas of Gram Sabha
land. The said Gram Sabha land does not fulfill the complete purpose of the
answering respondent because 80 bighas are required for the establishment of the
proposed sub- station. Further, the said Gram Sabha's land does not give any entrance
/ exit point towards State Highway. Therefore, the acquisition of the said Gram
Sabha's land does not serve any purpose.
14. That Delhi Electricity
Regulatory Commission, which is a statutory body of Govt. of NCT of Delhi vide its
letter No. F.17(51)/Engg./DERC/2009-10/1074 dated 16.6.2009 granted investment approval
of scheme for supply testing and commissioning of 400/220/66KV GIS sub-station
at East of Loni Road to the tune of Rs. 250.24 crores.
The true copy of the letter
dated 16.6.2009 is marked and annexed as Annexure - E. 15. Further the Power
Grid Corporation of India Ltd. vide its letter dated 28.8.2009 addressed to the
answering respondent emphasized on the urgency regarding the setting up and commission
of the 400 KV sub-station East of Loni Road since the transmission line is being
constructed for catering the additional load of Commonwealth Games, 2010 from 2
x 490 MW, NTPC Dadri Power Plant (under construction) and set the timeline of completion
by June, 2010. It was further pointed out that location of Lone Road sub-station
and coordinates of 400 KV switch yard gantry were urgently required for the
completion of the survey work.
The true copy of the
letter dated 28.8.2009 is marked and annexed as Annexure - F. Therefore, it was
a comprehensive scheme consisting of establishment of 400/220KV grid sub-station
by the answering respondent whereas in feed i.e. 400 KV transmission line from Dadri
Generating 15 Station upto the proposed grid sub-station at East of Loni Road."
Division Bench of the High Court noticed the correspondence exchanged between
the DTL, the DDA and the Government of NCT of Delhi and proceeded to observe: "The
only argument made was that urgency was because of ensuing Common Wealth Games
and since those have already concluded, the urgency as seized to exist. This is
a myopic view of the requirement for such a project. No doubt, endeavour was to
establish the sub-station before the Commonwealth Games, 2010 but that was not
the only reason for urgency.
The primary reason for
urgency was, and continuous to be, that the substation in East Delhi is needed
to evacuate and utilize the power generated from 1500 MW Gas based Plant at Bawana
which is being constructed. The urgency was, and continuous to exist, i.e. the
need for adequate power supply to the residents of this city. This is an urgent
need keeping in view the wide gap between the demand and supply. No doubt, the plans
were to commission it before Common Wealth Games.
That has not happened
also because of the reason that stay was granted in these proceedings. Be as it
may, it cannot be argued that merely because Common Wealth Games are over, the
respondent authorities can now set up the sub-station leisurely. These are the
aspects which are to be gone into by the Competent Authority while exercising powers
under Section 17 (4) of the Act.
Once it is seen that
all relevant factors were taken into consideration and the Competent Authority was
not influenced by any irrelevant consideration or the power exercised was not the
result of malafide, the subjective satisfaction of the Competent Authority,
based on those objective considerations namely the purpose of invocation of
urgency clause to acquire continued to exist the Court would be loathe to interfere
with such discretion exercised by the Competent Authority dispensing 16 with the
enquiry under Section 5A of the Act."
Division Bench of the High Court then referred to the judgments of this Court in
First Land Acquisition Collector and Others v. Nirodhi Prakash Ganguli and Another,
(2002) 4 SCC 160; Union of India & Others v. Praveen Gupta and Others (1997)
9 SCC 78; Nand Kishore Gupta and Others v. State of U.P. and Others (2010) 10
SCC 282 and of the High Court in Bijwasan Gram Vikas Samiti v. Lt. Governor and
Others - WP(C) No. 1307/2010, decided on 5.10.2010 and negatived the appellants'
challenge to the invoking of Section 17 of the Act.
The Division Bench distinguished
the judgments relied upon by the appellants' counsel by observing that those cases
did not involve challenge to the acquisition of land for infrastructure
projects meant for larger public interest. At the same time, the Division Bench
referred to the judgments in Rajiv Joshi v. Union of India 2009 (159) DLT 214, Rajinder
Kishan Gupta and another v. Lt. Governor, Government of NCT of Delhi 2010 (114)
DLT 708, Sumit Import Services Ltd. and another v. Delhi Metro Rail Corporation
and others 2008 (103) DRJ 263,
M/s. A.B.Tools Ltd. and
another v. Union of India WP (C) No.4611/1996, decided on 3.2.2010, Deepak Resorts
v. Union of India 2008 (149) DLT 582, Ajay Kumar Sanghi v. Delhi Police 2009 (163)
17 DLT 74, Union of India and others v. Pramod Gupta (1997) 9 SCC 78, Sheikhar
Hotels Gulmohar Enclave v. State of U.P. (2008) 14 SCC 716 and Jai Narain v.
Union of India (1999) 1 SCC 9 in which the acquisition of land for Airport,
construction of metro station/metro line, installation of LPG Bottling Plant, construction
of sewage treatment plant, construction of police station, relocation of timber
merchants outside the walled city and widening of National Highway by invoking
the urgency provisions contained in Section 17 of the Act was upheld by the High
Court and this Court.
counsel for the parties reiterated the arguments made before the High Court.
While Shri Dhruv Mehta relied upon the judgments of this Court in Anand Singh v.
State of U.P. (2010) 11 SCC 242 and Radhy Shyam v. State of U.P. (2011) 5 SCC 553
to emphasize that the acquisition of land for establishment of 400/220 KV
sub-station did not warrant invoking of the urgency provisions contained in the
Act because the proposal for establishment of the sub-station was initiated more
than five yeas prior to the issue of notification under Section 4(1) read with Section
17(1) and (4) of the Act and there was no justification to deprive the appellants
of the right to be heard before being deprived of their property,
Shri P.P. Malhotra,
learned Additional Solicitor General argued that the time consumed in the
exchange of correspondence between the functionaries of the Government, the DTL
and the DDA cannot be made a ground for nullifying the exercise of the State's power
of eminent domain. In support of his argument, Shri Malhotra relied upon the judgments
of Deepak Pahwa v. Lt. Governor of Delhi (1984) 4 SCC 308 and Chameli Singh v. State
of U.P. (1996) 2 SCC 549. Shri Waziri, learned counsel for the DTL, supplemented
the argument of learned Additional Solicitor General and submitted that the
Court may not quash the acquisition of the appellants' land because the work
for establishing the sub-station has been completed to a large extent.
Learned counsel submitted
that the appellants' land cannot be left out because the same is needed for
construction of project road. Shri Waziri also submitted that the sub-station
is required for evacuation of power which will be made available from the Dadri
Power Plant and no other suitable land was available for the sub-station.
have considered the respective arguments/submissions and carefully scrutinized
the record including the documents made available during the course of hearing.
The compulsory acquisition of land has generated enormous litigation in the
country in last more than five decades and this Court has been repeatedly
called upon to adjudicate upon the legality of the notifications issued under
State of U.P. v. Pista Devi (1986) 4 SCC 251, Rajasthan Housing Board v. Shri Kishan
(1993) 2 SCC 84, Jai Narain v. Union of India (supra), Union of India v. Praveen
Gupta (supra), Land Acquisition Collector v. Nirodhi Prakash Ganguli (supra), Anand
Buttons Ltd. v. State of Haryana (2005) 9 SCC 164, Tika Ram v. State of U.P.
(2009) 10 SCC 689, Nand Kishore Gupta v. State of U.P. (2010) 10 SCC 282 and some
other judgments, the acquisition of land under Section 4(1) read with Section 17(1)
and 17(4) and some of the State amendments for different public purposes, i.e.,
for construction of houses for poor and the members of reserved categories, establishment
of medical college, construction of sewage treatment plant under the Court's order
and for construction of Express Way has been approved.
As against this, the acquisition
of land by invoking the urgency provisions for the public purposes, like,
planned residential, commercial, industrial or institutional development has
been disapproved in Narayan Govind Gavate v. State of Maharashtra (1977) 1 SCC
133, State of Punjab v. Gurdial Singh (1980) 2 SCC 471, Om Prakash v. State of
U.P. (1998) 6 SCC 1, Union of India v. Mukesh Hans (2004) 8 SCC 14, Union of
India v. Krishan Lal Arneja (2004) 8 SCC 453, Hindustan Petroleum Corpn. Ltd. v.
Darius Shapur Chenai (2005) 7 SCC 627,
Essco Fabs (P) Ltd. v.
State of Haryana (2009) 2 SCC 377, Babu Ram v. State of Haryana (2009) 10 SCC
115, Anand Singh v. State of U.P. (supra), Dev Sharan v. State of U.P. (2011) 4
SCC 769, State of West Bengal v. Prafulla Churan Law (2011) 4 SCC 537 , Radhy
Shyam v. State of U.P. (supra) and Devender Kumar Tyagi v. State of U.P. (2011)
9 SCC 164 because the explanation given by the acquiring authority for invoking
Section 17(1) and/or 17(4) was found to be wholly unsatisfactory or it was found
that there was total non- application of mind by the competent authority on the
question of necessity and desirability of invoking the urgency provisions.
it is neither possible nor desirable to lay down any straight jacket formula which
can be applied to each and every case involving challenge to the acquisition of
land by invoking the urgency provision, it will be profitable to notice two
recent judgments in which several judicial precedents including some of the
judgments referred to in the impugned order have been considered and some concrete
propositions have been laid down which could supply guidance for deciding such matters.
In Anand Singh v.
State of U.P. (supra), this Court considered the question whether the State Government
could invoke Section 17(4) for the 21acquisition of land for a residential colony
to be constructed by Gorakhpur Development Authority, Gorakhpur. After noticing
factual matrix of the case and about 16 judgments, the Court held:
"43. The exceptional
and extraordinary power of doing away with an enquiry under Section 5-A in a
case where possession of the land is required urgently or in an unforeseen
emergency is provided in Section 17 of the Act. Such power is not a routine power
and save circumstances warranting immediate possession it should not be lightly
invoked. The guideline is inbuilt in Section 17 itself for exercise of the
exceptional power in dispensing with enquiry under Section 5-A. Exceptional the
power, the more circumspect the Government must be in its exercise.
The Government obviously,
therefore, has to apply its mind before it dispenses with enquiry under Section
5-A on the aspect whether the urgency is of such a nature that justifies
elimination of summary enquiry under Section 5-A.44. A repetition of the
statutory phrase in the notification that the State Government is satisfied
that the land specified in the notification is urgently needed and the provision
contained in Section 5-A shall not apply, though may initially raise a
presumption in favour of the Government that prerequisite conditions for
exercise of such power have been satisfied, but such presumption may be displaced
by the circumstances themselves having no reasonable nexus with the purpose for
which the power has been exercised.
Upon challenge being
made to the use of power under Section 17, the Government must produce appropriate
material before the court that the opinion for dispensing with the enquiry
under Section 5-A has been formed by the Government after due application of
mind on the material placed before it.45. It is true that power conferred upon
the Government under Section 17 is administrative and its opinion is entitled to
due weight, but in a case where the opinion is formed regarding the urgency based
on considerations not germane to the purpose, 22the judicial review of such
administrative decision may become necessary.46. As to in what circumstances
the power of emergency can be invoked are specified in Section 17(2) but circumstances
necessitating invocation of urgency under Section 17(1) are not stated in the provision
Generally speaking, the
development of an area (for residential purposes) or a planned development of city,
takes many years if not decades and, therefore, there is no reason why summary enquiry
as contemplated under Section 5-A may not be held and objections of landowners/persons
interested may not be considered. In many cases, on general assumption likely
delay in completion of enquiry under Section 5-A is set up as a reason for
invocation of extraordinary power in dispensing with the enquiry little realising
that an important and valuable right of the person interested in the land is
being taken away and with some effort enquiry could always be completed
47. The special provision
has been made in Section 17 to eliminate enquiry under Section 5-A in deserving
and cases of real urgency. The Government has to apply its mind on the aspect that
urgency is of such nature that necessitates dispensation of enquiry under Section
5-A. We have already noticed a few decisions of this Court. There is a conflict
of view in the two decisions of this Court viz. Narayan Govind Gavate and Pista
In Om Prakash this
Court held that the decision in Pista Devi must be confined to the fact situation
in those days when it was rendered and the two-Judge Bench could not have laid down
a proposition contrary to the decision in Narayan Govind Gavate. We agree.48. As
regards the issue whether pre-notification and post-notification delay would render
the invocation of urgency power void, again the case law is not consistent.
The view of this Court
has differed on this aspect due to different fact situation prevailing in those
cases. In our opinion such delay will have material bearing on the question of invocation
of urgency power, particularly in a situation where no material has 23 been placed
by the appropriate Government before the court justifying that urgency was of such
nature that necessitated elimination of enquiry under Section 5-A."
Radhy Shyam v. State of U.P. (supra), this Court considered challenge to the
acquisition of land under Section 4(1) read with Section 17(1) and (4) for
planned industrial development of District Gautam Budh Nagar by Greater Noida
Industrial Development Authority and extensively referred to the judgment in Narayan
Govind Gavate v. State of Maharashtra (1977) 1 SCC 133 and also adverted to other
judgments, in which the importance of the rules of natural justice has been
highlighted, and culled out the following principles:
domain is a right inherent in every sovereign to take and appropriate property belonging
to citizens for public use. To put it differently, the sovereign is entitled to
reassert its dominion over any portion of the soil of the State including private
property without its owner's consent provided that such assertion is on account
of public exigency and for public good - Dwarkadas Shrinivas v. Sholapur Spg. and
Wvg. Co. Ltd., Charanjit Lal Chowdhury v. Union of India and Jilubhai Nanbhai
Khachar v. State of Gujarat.
legislations which provide for compulsory acquisition of private property by the
State fall in the category of expropriatory legislation and such legislation
must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust
v. State of Haryana; State of Maharashtra v. B.E. Billimoria and Dev Sharan v.
State of U.P.
in exercise of the power of eminent domain, the Government can acquire the private
property for public purpose, it must be remembered that compulsory taking of
one's property is a serious matter. If the property belongs to economically disadvantaged
segment of the society or people suffering from other handicaps, then the court
is not only entitled but is duty-bound to scrutinise the action/decision of the
State with greater vigilance, care and circumspection keeping in view the fact
that the landowner is likely to become landless and deprived of the only source
of his livelihood and/or shelter.
property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities
without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public
purpose, however laudable it may be does not entitle the State to invoke the urgency
provisions because the same have the effect of depriving the owner of his right
to property without being heard. Only in a case of real urgency, can the State
invoke the urgency provisions and dispense with the requirement of hearing the landowner
or other interested persons.
17(1) read with Section 17(4) confers extraordinary power upon the State to acquire
private property without complying with the mandate of Section 5-A. These
provisions can be invoked only when the purpose of acquisition cannot brook the
delay of even a few weeks or months. Therefore, before excluding the application
of Section 5-A, the authority concerned must be fully satisfied that time of few
weeks or months likely to be taken in conducting inquiry under Section 5-A will,
in all probability, frustrate the public purpose for which land is proposed to
satisfaction of the Government on the issue of urgency is subjective but is a condition
precedent to the exercise of power under Section 17(1) and the same can be
challenged on the ground that the purpose for which the private property is
sought to be acquired is not a public purpose at all or that the 25 exercise of
power is vitiated due to mala fides or that the authorities concerned did not apply
their mind to the relevant factors and the records.
exercise of power by the Government under Section 17(1) does not necessarily
result in exclusion of Section 5-A of the Act in terms of which any person
interested in land can file objection and is entitled to be heard in support of
his objection. The use of word "may" in sub-section (4) of Section 17
makes it clear that it merely enables the Government to direct that the provisions
of Section 5-A would not apply to the cases covered under sub-section (1) or (2)
of Section 17. In other words, invoking of Section 17(4) is not a necessary
concomitant of the exercise of power under Section 17(1).
acquisition of land for residential, commercial, industrial or institutional purposes
can be treated as an acquisition for public purposes within the meaning of
Section 4 but that, by itself, does not justify the exercise of power by the Government
under Sections 17(1) and/or 17(4). The court can take judicial notice of the fact
that planning, execution and implementation of the schemes relating to development
of residential, commercial, industrial or institutional areas usually take few years.
Therefore, the private property cannot be acquired for such purpose by invoking
the urgency provision contained in Section 17(1). In any case, exclusion of the
rule of audi alteram partem embodied in Sections 5-A(1) and (2) is not at all
warranted in such matters.
land is acquired for the benefit of private persons, the court should view the
invoking of Sections 17(1) and/or 17(4) with suspicion and carefully scrutinise
the relevant record before adjudicating upon the legality of such
needs to be emphasized is that although in exercise of the power of eminent domain,
the State can acquire the private property for public 26 purpose, it must be remembered
that compulsory acquisition of the property belonging to a private individual is
a serious matter and has grave repercussions on his Constitutional right of not
being deprived of his property without the sanction of law - Article 300A and the
legal rights. Therefore, the State must exercise this power with great care and
circumspection. At times, compulsory acquisition of land is likely to make the
owner landless. The degree of care required to be taken by the State is greater
when the power of compulsory acquisition of private land is exercised by
invoking the provisions like the one contained in Section 17 of the Act because
that results in depriving the owner of his property without being afforded an
opportunity of hearing.
the light of the above, it is to be seen whether there was any justification
for invoking the urgency provisions contained in Section 17 (1) and (4) of the Act
for the acquisition of the appellants' land. The Division Bench of the High
Court accepted the explanation given by the respondents by observing that sub-station
in East Delhi is needed to evacuate and utilize the power generated from 1500
MW gas based plant at Bawana. While doing so the Bench completely overlooked
that there was long time gap of more than five years between initiation of the proposal
for establishment of the sub-station and the issue of notification 27 under
Section 4 (1) read with Section 17 (1) and (4) of the Act. The High Court also
failed to notice that the Government of NCT of Delhi had not produced any material
to justify its decision to dispense with the application of Section 5A of the Act.
The documents produced by the parties including the notings recorded in file bearing
No. F.S(11)/08/L&B/LA and the approval accorded by the Lieutenant Governor do
not contain anything from which it can be inferred that a conscious decision
was taken to dispense with the application of Section 5A which represents two
facets of the rule of hearing that is the right of the land owner to file
objection against the proposed acquisition of land and of being heard in the inquiry
required to be conducted by the Collector.
scope of the rule of hearing, i.e., audi alteram partem was highlighted by the three-Judge
Bench in Sayeedur Rehman v. State of Bihar (1973) 3 SCC 333 in the following
11. ... This
unwritten right of hearing is fundamental to a just decision by any authority which
decides a controversial issue affecting the rights of the rival contestants. This
right has its roots in the notion of fair procedure. It draws the attention of the
party concerned to the imperative necessity of not overlooking the other side of
the case before coming to its decision, for nothing is more likely to conduce
to just and right 28 decision than the practice of giving hearing to the affected
Maneka Gandhi v. Union of India (1978) 1 SCC 248 Bhagwati, J. speaking for
himself and Untwalia and Fazal Ali, JJ. observed: "14. ... The audi alteram
partem rule is intended to inject justice into the law and it cannot be applied
to defeat the ends of justice, or to make the law `lifeless, absurd,
stultifying, self- defeating or plainly contrary to the common sense of the situation'.
Since the life of the law is not logic but experience and every legal proposition
must, in the ultimate analysis, be tested on the touchstone of pragmatic
realism, the audi alteram partem rule would, by the experiential test, be excluded,
if importing the right to be heard has the effect of paralysing the administrative
process or the need for promptitude or the urgency of the situation so demands.
But at the same time it
must be remembered that this is a rule of vital importance in the field of
administrative law and it must not be jettisoned save in very exceptional
circumstances where compulsive necessity so demands. It is a wholesome rule
designed to secure the rule of law and the court should not be too ready to
eschew it in its application to a given case. True it is that in questions of
this kind a fanatical or doctrinaire approach should be avoided, but that does not
mean that merely because the traditional methodology of a formalised hearing may
have the effect of stultifying the exercise of the statutory power, the audi
alteram partem should be wholly excluded.
The Court must make
every effort to salvage this cardinal rule to the maximum extent permissible in
a given case. It must not be forgotten that `natural justice is pragmatically flexible
and is amenable to capsulation under the compulsive pressure of circumstances'.
The audi alteram partem rule is not cast in a rigid mould and judicial decisions
establish that it may suffer situational modifications. The core of it must, however,
remain, namely, that the person affected must have a reasonable opportunity of being
heard and the hearing must be a genuine hearing and not an empty public
relations exercise." 29 (emphasis supplied)
Mohinder Singh Gill v. Chief Election Commr.(1978) 1 SCC 405, Krishna Iyer, J. speaking
for himself, Beg, C.J. and Bhagwati, J. observed as under: "43. Indeed,
natural justice is a pervasive facet of secular law where a spiritual touch
enlivens legislation, administration and adjudication, to make fairness a creed
of life. It has many colours and shades, many forms and shapes and, save where valid
law excludes it, applies when people are affected by acts of authority.
It is the hone of
healthy Government, recognised from earliest times and not a mystic testament
of Judge-made law. Indeed, from the legendary days of Adam--and of Kautilya's Arthashastra--the
rule of law has had this stamp of natural justice which makes it social justice.
We need not go into these deeps for the present except to indicate that the
roots of natural justice and its foliage are noble and not new-fangled. Today
its application must be sustained by current legislation, case law or other extant
principle, not the hoary chords of legend and history.
Our jurisprudence has
sanctioned its prevalence even like the Anglo-American system." "48. Once
we understand the soul of the rule as fair play in action--and it is so--we
must hold that it extends to both the fields. After all, administrative power
in a democratic set-up is not allergic to fairness in action and discretionary executive
justice cannot degenerate into unilateral injustice. Nor is there ground to be
frightened of delay, inconvenience and expense, if natural justice gains access.
For fairness itself is a flexible, pragmatic and relative concept, not a rigid,
ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor
a bee in one's bonnet.
Its essence is good
conscience in a given situation: nothing more--but nothing less. The
`exceptions' to the rules of natural justice are a misnomer or rather are but a
shorthand form of expressing the idea that in those exclusionary cases nothing unfair
can be inferred by not affording an 30 opportunity to present or meet a case. Textbook
excerpts and ratios from rulings can be heaped, but they all converge to the same
point that audi alteram partem is the justice of the law, without, of course,
making law lifeless, absurd, stultifying, self- defeating or plainly contrary to
the common sense of the situation."
Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664 the majority of the three-Judge
Bench held that the rule of audi alteram partem must be complied with even when
the Government exercises power under Section 18-AA of the Industries (Development
and Regulation) Act, 1951 which empowers the Central Government to authorise taking
over of the management of industrial undertaking. Sarkaria, J. speaking for himself
and Desai, J. referred to the development of law relating to applicability of
the rule of audi alteram partem to administrative actions, noticed the judgments
in Ridge v. Baldwin (1964) AC 40, A.K. Kraipak v. Union of India (1969) 2 SCC 262,
Mohinder Singh Gill v. Chief Election Commr. (supra), Maneka Gandhi v. Union of
India (supra) and State of Orissa v. Dr. Binapani Dei (1967) 2 SCR 625 and quashed
the order passed by the Central Government for taking over the management of the
industrial undertaking of the appellant on the ground that opportunity of hearing
has not been given to the owner of the undertaking and remanded the matter for fresh
consideration and compliance with the rule of audi alteram partem.
Munshi Singh v. Union of India (1973) 2 SCC 337, the three-Judge Bench of this Court
emphasised the importance of Section 5-A in the following words: "7. ...
Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an objector
an opportunity of being heard. After hearing all objections and making further
inquiry he is to make a report to the appropriate Government containing his recommendation
on the objections.
The decision of the appropriate
Government on the objections is then final. The declaration under Section 6 has
to be made after the appropriate Government is satisfied, on a consideration of
the report, if any, made by the Collector under Section 5-A(2). The legislature
has, therefore, made complete provisions for the persons interested to file
objections against the proposed acquisition and for the disposal of their
objections. It is only in cases of urgency that special powers have been conferred
on the appropriate Government to dispense with the provisions of Section
is also apposite to mention that no tangible evidence was produced by the
respondents before the Court to show that the task of establishing the sub-station
at Mandoli was required to be accomplished within a fixed schedule and the urgency
was such that even few months time, which may have been consumed in the filing
of objections by the land owners and other interested persons under Section
5A(1) and holding of inquiry by the Collector under Section 5A(2), would have
frustrated the project.
It seems that the
Bench of the High Court was unduly influenced by the fact that consumption of
power in Delhi was increasing everyday and the DTL was making an effort to
ensure supply of power to different areas and for that purpose establishment of
sub-station at village Mandoli was absolutely imperative. In our view, the High
Court was not justified in rejecting the appellants' challenge to the invoking
of urgency provisions on the premise that the land was required for
implementation of a project which would benefit large section of the society.
It needs no emphasis that
majority of the projects undertaken by the State and its agencies /
instrumentalities, the implementation of which requires public money, are meant
to benefit the people at large or substantially large segment of the society. If
what the High Court has observed is treated as a correct statement of law, then
in all such cases the acquiring authority will be justified in invoking Section
17 of the Act and dispense with the inquiry contemplated under Section 5A, which
would necessarily result in depriving the owner of his property without any opportunity
to raise legitimate objection.
However, as has been
repeatedly held by this Court, the invoking of the urgency provisions can be
justified only if there exists real emergency which cannot brook delay of even
few weeks or months.
In other words, the
urgency provisions can be invoked only if even small delay of few weeks or
months may frustrate the public purpose for which the land is sought to be
acquired. Nobody can contest that the purpose for which the appellants' land
and land belonging to others was sought to be acquired was a public purpose but
it is one thing to say that the State and its instrumentality wants to execute a
project of public importance without loss of time and it is an altogether
different thing to say that for execution of such project, private individuals
should be deprived of their property without even being heard.
It appears that
attention of the High Court was not drawn to the following observations made in
State of Punjab v. Gurdial Singh (supra): "it is fundamental that compulsory
taking of a man's property is a serious matter and the smaller the man the more
serious the matter. Hearing him before depriving him is both reasonable and
pre-emptive of arbitrariness, and denial of this administrative fairness is
constitutional anathema except for good reasons.
Save in real urgency where
public interest does not brook even the minimum time needed to give a hearing
land acquisition authorities should not, having regard to Articles 14 (and 19),
burke an enquiry under Section 17 of the Act. Here a slumbering process, pending
for years and suddenly exciting itself into immediate forcible taking, makes a travesty
of emergency power."
recapitulation of the facts would show that the idea of establishing 400/220 KV
sub-station was mooted prior to August, 2004. For next almost three years, the officers
of the DTL and the DDA exchanged 34letters on the issue of allotment of land.
On 28.7.2008 Secretary (Power), Government of NCT of Delhi-cum-CMD, DTL made a
suggestion for the acquisition of land by invoking Section 17 of the Act.
This became a tool in
the hands of the concerned authorities and the Lieutenant Governor mechanically
approved the proposal contained in the file without trying to find out as to
why the urgency provisions were being invoked after a time gap of five years. If
the sub-station was to be established on emergency basis, the authorities of
the DTL would not have waited for five years for the invoking of urgency provisions
enshrined in the Act. They would have immediately approached the Government of NCT
of Delhi and made a request that land be acquired by invoking Section 17 of the
However, the fact of
the matter is that the concerned officers / functionaries of the DTL, the DDA
and the Government of NCT of Delhi leisurely dealt with the matter for over
five years. Even after some sign of emergency was indicated in letter dated
9.9.2008 of the Joint Secretary (Power), who made a mention of the Commonwealth
Games scheduled to be organised in October, 2010, it took more than one year and
two months to the competent authority to issue the preliminary notification.
Therefore, we are unable to approve the view taken by the High Court on 35 the
sustainability of the appellants' challenge to the acquisition of their land.
concluding we deem it appropriate to notice the judgments relied upon by the
learned Additional Solicitor General. A cursory reading of the judgment in
Deepak Pahwa v. Lt. Governor of Delhi (supra) (3-Judge Bench) gives an impression
that the proposition contained therein supports the argument of Shri Malhotra,
that pre-notification delay is not relevant for deciding legality of the exercise
of the State's power of eminent domain and invoking of the urgency provisions
contained in the Act but careful reading of the judgment along with the precedents
referred to in paragraph 8 makes it clear that nothing contained therein can be
relied upon for overlooking the time gap of five years between the initiation
of proposal for establishment of the sub-station and the issue of notification under
Section 4(1) read with Section 17 (1) and (4) of the Act.
That case involved challenge
to the acquisition of land for construction of `New Transmitting Station for the
Delhi Airport'. The High Court dismissed the writ petition in limine. The special
leave petition was also dismissed at the threshold. While dealing with the argument
that there was no justification to invoke Section 17(4) of the Act and to dispense
with the inquiry under Section 5A because eight 36years time was spent in inter-departmental
discussions, this court observed:
ground of attack is that if regard is had to the considerable length of time spent
on inter-departmental discussion before the notification under Section 4(1) was
published, it would be apparent that there was no justification for invoking the
urgency clause under Section 17(4) and dispensing with the enquiry under Section
5-A. We are afraid, we cannot agree with this contention.
Very often persons interested
in the land proposed to be acquired make various representations to the concerned
authorities against the proposed acquisition. This is bound to result in a multiplicity
of enquiries, communications and discussions leading invariably to delay in the
execution of even urgent projects. Very often the delay makes the problem more and
more acute and increases the urgency of the necessity for acquisition.
It is, therefore, not
possible to agree with the submission that mere pre-notification delay would render
the invocation of the urgency provisions void. We however wish to say nothing about
post-notification delay. In Jage Ram v. State of Haryana (1971) 1 SCC 671 this Court
pointed out the fact that the State Government or the party concerned was lethargic
at an earlier stage is not very relevant for deciding the question whether on
the date on which the notification was issued, there was urgency or not. In Kasireddy
Papaiah v. Government of Andhra Pradesh, AIR 1975 AP 269 it was held, "...
delay on the part of tardy officials to take the further action in the matter
of acquisition is not sufficient to nullify the urgency which existed at the time
of the issue of the notification and to hold that there was never any urgency".
In the result both the
submissions of the learned counsel for the petitioners are rejected and the special
leave petitions are dismissed." (underlining is ours) 37In making the aforesaid
observation, the Court appears to have been unduly influenced by what was
perceived at the relevant time as pulling of strings in the power corridors by
the interested persons which resulted in frustration of the public oriented projects.
The general observations
made in Deepak Pahwa's case cannot supply basis for approving the impugned
order and the notifications challenged by the appellants because it is neither the
pleaded case of the respondents nor it has been suggested that the delay was caused
due to the representation made by the appellants or that they brought
extraneous pressure to prevent the acquisition of their land.
may now notice the two decisions referred to in paragraph 8 of the judgment in Deepak
Pahwa's case. In Jage Ram v. State of Haryana (1971) 1 SCC 671 the acquisition
of land for setting up a factory for the manufacture of China-ware, Porcelain-ware
including wall glazed tiles, etc., at the instance of a private industrialist
by invoking Section 17(2)(c) of the Act (as amended by Haryana Legislature) was
challenged. The State Government had issued notification dated 14/17.03.1969 under
Section 4 of the Act.
Simultaneously, a direction
was given for taking action under Section 17(2)(c) and it was declared that the
provisions of Section 5A shall not apply. On 8.4.1969 the appellants filed writ
petition, which was dismissed by the High Court. This Court negatived the 38challenge
to the invoking of the urgency provisions by making the following observations:
"The allegations in the writ petition include the assertion that there was
no urgency in the matter of acquiring the land in question and therefore there
was no justification for having recourse to Section 17 and thus deprive the appellants
of the benefit of Section 5-A of the Act.
It was further alleged
therein that the acquisition in question was made for the benefit of a company and
hence proceedings should have been taken under Sections 38 to 44(B) of the Act and
that there was no public purpose involved in the case. It was further pleaded
that the land acquired was not waste and arable land and that Section 2(c) of
the Act did not confer power on the Government to dispense with the proceedings
under Section 5-A. In the counter-affidavit filed by the Deputy Director of Industries
(Administration), Government of Haryana on behalf of the State of Haryana, the above
allegations were all denied.
Therein it is stated
that at the instance of the State of Haryana, Government of India had issued a letter
of intent to a company for setting up a factory for the manufacture of Glazed Tiles
etc. in village Kasser. That project was to be started with the collaboration
of a foreign company known as Pilkington Tiles Ltd. The scheme for setting up
the project had been finalised and approved by the concerned authorities. On
November 26, 1968, the Government wrote to one of the promoters of the project,
Shri H.L. Somany asking him to complete the "arrangements for the import of
capital equipment and acquisition of land in Haryana State for setting up of
the proposed factory".
It was further stated
in that communication that the Government was pleased to extend the time for
completing the project up to April 30, 1969. Under those circumstances it had become
necessary for the State of Haryana to take immediate steps to acquire the required
land. It was under those circumstances the Government was constrained to have recourse
to Section 17 of the Act. The Government 39denied the allegation that the facts
of this case did not come within the scope of Section 17(2)(c).
It was also denied
that the acquisition in question was not made for a public purpose.There is no denying
the fact that starting of a new industry is in public interest. It is stated in
the affidavit filed on behalf of the State Government that the new State of Haryana
was lacking in industries and consequently it had become difficult to tackle the
problem of unemployment. There is also no denying the fact that the industrialisation
of an area is in public interest.
That apart, the question
whether the starting of an industry is in public interest or not is essentially
a question that has to be decided by the Government. That is a socio-economic question.
This Court is not in a position to go into that question. So long as it is not
established that the acquisition is sought to be made for some collateral purpose,
the declaration of the Government that it is made for a public purpose is not
open to challenge. Section 6(3) says that the declaration of the Government
that the acquisition made is for public purpose shall be conclusive evidence that
the land is needed for a public purpose.
Unless it is shown
that there was a colourable exercise of power, it is not open to this Court to
go behind that declaration and find out whether in a particular case the purpose
for which the land was needed was a public purpose or not: see Smt Somavanti v.
State of Punjab and Raja Anand Brahma Shah v. State of U.P. On the facts of
this case there can be hardly any doubt that the purpose for which the land was
acquired is a public purpose.
Now coming to the
question of urgency, it is clear from the facts set out earlier that there was urgency.
The Government of India was pleased to extend time for the completion of the
project up to April 30, 1969. Therefore urgent steps had to be taken for pushing
through the project. The fact that the State Government or the party 40 concerned
was lethargic at an earlier stage is not very relevant for deciding the
question whether on the date on which the notification was issued, there was
urgency or not.
The conclusion of the
Government in a given case that there was urgency is entitled to weight, if not
conclusive."There is nothing in the aforesaid judgment which can possibly
support the cause of the respondents. The scheme for setting up an industry by
a company known as Pilkington Tiles Ltd. of which one H.S. Somany was a promoter
was finalized on 26.11.1968 and the notification was issued on 14/17.3.1969.
This shows that the time
gap between finalization of the scheme and the issue of preliminary
notification was less than four months. Therefore, the judgment in Jage Ram's
case could not have been relied upon for taking the view that pre-notification delay
cannot be considered while deciding legality of the State's action to invoke
the urgency provisions.
That apart, we have
serious reservation whether the Court could have approved the invoking of
urgency provisions for the acquisition of land on behalf of a private company
ignoring that there is a separate Chapter for such acquisition.
Kasireddy Papaiah v. Government of A.P. AIR 1975 AP 269 to which reference has been
made in the judgment of Deepak Pahwa's case, the learned Single Judge
(Chinnappa Reddy, J., as he then was) rejected the challenge to the acquisition
of land under Section 4(1) read with Section 17(4). The facts of that case show
that notification under Section 4(1) read with Section 17(4) was issued on
19.5.1970 and was published in the official gazette dated 24.9.1970. The
declaration under Section 6 was published in official gazette dated 25.2.1971.
The writ petition was
filed on 16.9.1971. The High Court held that the time gap of six months was not
fatal to the invoking of the urgency provisions because the land was acquired for
providing house sites to the Harijans. There is nothing in that judgment which
merits serious consideration by this Court.
Chameli Singh v. State of U.P. (supra) this Court simply followed the observations
made by the learned Single Judge of the Andhra Pradesh High Court in Kasireddy
Papaiah's case and held that the acquisition of land for providing housing accommodation
for Harijans did warrant invoking of the urgency provisions and delay by the
officials cannot be made a ground to nullify the acquisition. There is no
particular discussion in the judgment about the time lag between the proposal for
the acquisition of land and the issue of notification under Section 4(1) read with
Section 17(1) and (4). Therefore, that judgment is also of no assistance to the
is also appropriate to mention that in paragraph 48 of the judgment in Anand
Singh v. State of UP (supra) this Court did take cognizance of the conflicting views
expressed on the effect of pre-notification and post- notification delay on the
invoking of urgency provisions and observed that such delay will have material
bearing on the question of invocation of urgency power, particularly, when no material
is produced by the appropriate Government to justify elimination of the inquiry
envisaged under Section 5A.
the result, the appeal is allowed and the impugned order is set aside. As a
corollary, the writ petition filed by the appellants is allowed and the acquisition
of their land is quashed. However, it is made clear that this judgment shall not
preclude the competent authority from issuing fresh notification under Section
4(1) and taking other steps necessary for the acquisition of the appellant's land.
If the respondents initiate fresh proceedings for the acquisition of the
appellants' land then they shall be free to file objections under Section 5A(1)
and they shall also be entitled to be heard in the inquiry to be conducted by
the Collector in terms of Section 5A(2) of the Act. The parties are left to
bear their own costs.
[Sudhansu Jyoti Mukhopadhaya]