Jai Narain
& Ors Vs. Union of India & Ors [1995] INSC 762
(29 November 1995)
Kuldip
Singh (J) Kuldip Singh (J) Ahmad Saghir S. (J) Kuldip Singh, J.
CITATION:
1996 AIR 697 1996 SCC (1) 9 JT 1995 (9) 323 1995 SCALE (6)664
ACT:
HEAD NOTE:
These
transfer cases are the writ petitions under Article 226 of the Constitution of
India which were filed before the Delhi High Court. The petitioners have
challenged the notifications dated January 6, 1995 and March 9, 1995 under
Sections 4, 6 and 17(4) of the Land Acquisition Act, 1894 (the Act) relating to
the revenue estate of village Nilothi, National Capital territory (NCT) of
Delhi.
This
Court is monitoring the constructions of Sewage Treatment Plants (STPs) in
various parts of Delhi in the public interest proceedings in write petition
(civil) No.4677/85 M.C. Mehta vs. Union of India & Ors. under Article 32 of
the Constitution of India. Pursuant to the directions issued
by this Court in M.C. Mehta's case the NCT - Administration has issued the
notifications dated January
6, 1995 and March 9, 1995 under the Act which have been
impugned in the transferred cases. Since this Court is seized of the matter
relating to the construction of STP at Keshopur on the land in dispute, it was
deemed appropriate to transfer the writ petitions from the file of the Delhi
High Court to this Court.
The
land in dispute is being acquired for a public purpose namely for setting up of
pumping station/sewerage treatment plant in villages Jasola, Nilothi and Shaffipur
Ranola for the planned development of Delhi. The provisions of sub-Section (1) of Section 17 of the Act have been
made applicable and as such the enquiry under Section 5-A of the Act has been
dispensed with. The relevant part of the notification dated January 6<1995
is as under:- "No. F.>(46)/94-L&B/LA/298: Whereas it appears to the
Lt. Governor, of Delhi that the land is likely to be required to be taken by
Government at public expense for a public purpose; namely for setting up of
pumping station/sewerage Treatment plant in village Jasola for the planned
development of Delhi,it is hereby notified that the land in the locality
described below is likely to be required for the above purpose..........The Lt.
Governor being of opinion that provisions of sub- section (1) of Section 17 of
the said Act are applicable to this land, is further pleased under sub-section
4 of the said section to direct that the provisions of section 5-A shall not
apply." Section 4 of the Act to the relevant-extent is reproduced:-
"4. Publication of preliminary notification and powers of officers
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........." Mr. N.S. Vasisht, learned counsel for the petitioners has
challenged the acquisition proceedings on the following grounds:- [1] The
notification under Section 4 of the Act uses the expression "likely to be
needed" which means there was no existing need and the land was required
some time in the future. There was, thus, no urgency and as such the provisions
of Section 17(4) of the Act could not be invoked and the right of the land
owners to file objections under Section 5-A of the Act could not be taken away.
It further indicates that there was no application of mind on the part of the
Lt. Governor of NCT; [2] The land in dispute is shown in the Master Plan and
Zonal Development Plan as agricultural green whereas it is being acquired for
the public purpose of setting up the STP. The acquisition is contrary to the Master
Plan and the Zonal Development Plan.
The
first contention raised by the learned counsel is based on the language of
Section 4 of the Act. The power under Section 4 of the Act can be exercised
when it appears to the Government that the "land in any locality is needed
or is likely to be needed for any public purpose". It is no doubt correct
that the expression "is needed" indicates the existing need whereas
the expression "is likely to be needed" refers to the future need. When
the later expression is used in the notification under Section 4 of the Act it
may be suggestive of the fact that there may not be emergency to acquire the
land, but the question of urgency cannot be determined solely by the
expressions used in the notification under Section 4 of the Act. The emergency
must be reflected in the need of the acquisition. The existence of urgency is a
matter which is entirely based on the subjective satisfaction of the
Government. The courts do not interfere unless the reasons given are wholly
irrelevant and there is no application of mind. When a notification under
Section 4 of the Act uses the expression "is likely to be needed" it
may be necessary, in a given case, to examine the records or the attendant
circumstances to satisfy that there was material before the Government
justifying the Order under Section 17, dispensing with the provisions of
Section 5-A of the Act. If the public purpose on the face of it shows that the
land is needed urgently, that by itself is a relevant circumstance for justifying
the action under Section 17(4) of the Act. This Court in State of U.P. vs. Smt.Pista Devi and others, etc.etc. AIR 1986 SC
2025 - where urgency provisions were invoked to acquire the land for housing
schemes - held as under:- "In the circumstances of the case it cannot be
said that the decision of the State Government in resorting to S.
17(1)
of the Act was unwarranted. The provision of housing accommodation in these
days has become a matter of national urgency. We may take judicial notice of
this fact. Now it is difficult to hold that in the case of proceedings relating
to acquisition of land for providing house sites it is unnecessary to invoke
S.17(1) of the Act and to dispense with the compliance with S. 5-A of the
Act." The land in dispute is being acquired for the construction of STP.
This Court in M.C. Mehta's case (supra), while directing the closure of the
stone crushers in the city of Delhi, on May 15,1992 observed as under:
"We
are conscious that environmental changes are the inevitable consequence of
industrial development in our country, but at the same time the quality of
environment cannot be permitted to be damaged by polluting the Air, Water and
Land to such an extent that it becomes a health-hazard for the residents of the
area. We are constrained to record that Delhi Development Authority, Municipal
Corporation of Delhi, Municipal Corporation of Delhi, Central Corporation
Control Board and Delhi Pollution Control Committee have been wholly re-miss in
the performance of their statutory duties and have failed to protect the
environments and control air-pollution in the Union Territory of Delhi. Utter
disregard to environment has placed Delhi in an unenviable position of being the world's third grubbiest, most
polluted and unhealthy city as per a study conducted by the World Health Organisation.
Needless to say that every citizen has a right to fresh air and to live in
pollution-free environment.
While
dealing with the construction of STP's in Delhi, this Court in Mehta's case passed the following order on April 22, 1994:
"The
Delhi Development Authority has filed an affidavit through its Secretary Mr.
V.N. Bansal. It is stated that the Authority is ready and willing to provide
land to the M.C.D. for setting up of the Sewage Treatment tanks.
Keeping
in view the urgency of the matter, we request Mr. Subhash Sharma, Commissioner,
M.C.D., Mr. S.P.Jkhanwal. Vice Chairman, D.D.A., Mr. Ashok Kumar, Additional
Commissioner, Water and Mr. JK Mathur, Chief Engineer of the Delhi Water Supply
and Sewage Disposal Undertaking to be present in Court on May 6, 1994. We are
requesting the officers to be present in Court so that we can have their view
points for taking appropriate decisions on the spot.
Needless
to say that with the increase of population in Delhi it is of utmost urgency to set up the sewage Treatment
Plants within the time-bound Schedule." Thereafter, on May 13, 1994 this Court issued various
directions regarding the transfer of land to the Delhi Water Supply and Sewage
Disposal Undertaking (the Undertaking) for the STP's in Delhi and finally directed as under:
"We
direct the D.D.A through Mr.S. Roy, Commissioner. Lands to hand over the
possession of the vacant land available for setting up of the Sewage Treatment
Plants in various colonies within four weeks from today. We further direct the
M.C.D. to make payment in respect of these lands simultaneously. Mr. S. Prakash,
Engineer-in-Chief will be responsible for taking over the land and also for
making payment to the D.D.A. on behalf of the M.C.D. The work for setting up of
Sewage Treatment Plants shall be completed at war-footing." This Court on August 1,1994, noticed the progress made in the
construction of the SPT's in the following words:
"Mr.
Kapil Sibal, learned senior counsel appearing for the Delhi Water Supply and
Sewage Disposal Undertaking has produced before us a chart showing tentative
schedule of completion and commissioning of Sewage Treatment Plants in various
areas in Delhi. It is stated that the first
appraisal is the soil investigation. The soil investigation is to be done by
the Investigating team of the Undertaking within four weeks from today. In any
case, we direct the Undertaking to complete it within four weeks. Thereafter,
the Undertaking shall float and finalise the tenders within 6 weeks.
The
progress report and the name of the company/person whose tender would be
accepted shall be submitted to this Court by 24.10.94. List it on
24.10.94." Regarding the STP in Okhla area it was found that the
dispossession, of the landowners, in respect of large area of land under
acquisition was stayed by the Delhi High Court in the writ petitions filed by
them. This Court in M.C.Mehta's case passed the following order on December 14,1994:
"We
directed the D.D.A. to issue notices through Newspapers consecutively for two
days stating therein that the parsons who have obtained stay orders from
various courts be present in this Court at 2.00 p.m. on December 14,
1994. The notices were
published by the D.D.A. as directed by us. In response to the notices, Mr. S.M.
Ashri, Dr. B.S. Chauhan, Mr. Maninder Singh and Mr.L.C. Chachi, Advocates are
present on behalf of the land owners. The only contention raised by the learned
counsel for various land owners is that the Notification under sections 4 and 6
were issued in the year 1964 and 1966 respectively. According to them, the
possession of land is still with them.
It is
further stated by the learned counsel that they are entitled to compensation at
the rate of market value of the land today....
Keeping
in view the facts and circumstances of this case, we direct that 13 writ
petitions mentioned in the public notice published in the Hindustan Times dated
November 30, 1994, be transferred from the Delhi High
Court to the file of this Court. These petitions be listed for final disposal
in the 2nd week of February, 1995.
Meanwhile,
we vacate the stay orders granted by the High Court in all these writ petitions
and direct the Delhi Administration to take over the possession of the land and
hand over to the Delhi Water Supply and Sewage Disposal Undertaking."
Further directions were issued to the Delhi Administration on December 14, 1994 to take over the land from DDA and
acquire where necessary for the STPs at various place in Delhi.
This
Court has been issuing time-bound directions for the procurement of land for
the STP's in various parts of Delhi. The
impugned notifications regarding Keshopur STP were issued under the directions
of this Court. On January
23, 1995 this Court
passed the following order regarding the land in dispute:- "A very grim
picture emerges regarding increase of pollution in the city of Delhi from the two affidavits filed by Shri
DS Negi, Secretary (Environment), Govt. of Delhi. He has pointed out that the
population of Delhi which was about 17 lakh in 1951 has
gone up to more than 94 lakhs as per the 1991 census. In fact, more than 4 lakh
people are being added to the population of Delhi every year out of which about 3 lakh are migrants. Delhi has been categorised as the fourth
most polluted city in world with respect to concentration of Suspended
Particular Metal (SPM) in the ambient atmosphere as per World Health Organisation
Report, 1989. From NEERI's annul report 1991 it is obvious that the major
contributions, so far as air pollution is concerned, is of the vehicular
traffic but the industries in the city are also contributing about 30% of the
air pollution. So far as the discharge of effluent in Yamuna is concerned, the
industries are the prime contributors apart from the MCD and NDMC which are
also discharging sewage directly into the river Yamuna. We are dealing with the
sewage problems in separate proceedings." Thereafter, on April 21, 1995 this Court, regarding the
construction of STP's observed as under:
"Treatment
of sewage is of utmost importance for health and for supply of pure water to
the citizens of Delhi. Any delay in this respect is
health-hazard and cannot be tolerated." The land for Keshav Pur STP was
not being made available.
There
was considerable delay in completing the acquisition proceeding order:
"So
far as Keshavpur is concerned, land has to be acquired by the State Govt.
Mr. Arun
Jaitley, learned senior counsel states that although he is not appearing for
the Delhi Administration, yet he has information that some steps have already
been taken by the State Govt. There is nobody in the Court to assist us on
behalf of Delhi Admn. We are told that Mrs. Suman Swarup is the Secretary, In-
charge of the Land and Building Deptt.
We are
prima facie of the view that there is obvious inaction on the part of the Delhi
Admn. in complying with our orders. Before we take any action in this respect
we direct Ms. Suman Swarup to file an affidavit in this Court within one week
giving over-all action the Govt. has initiated in respect of acquiring land in
setting up of Sewage Treatment Plant in Keshavpur. The affidavit be filed by 1 PM on 11th
August, 1995. List the
matter on 11th August,
1995 at 2 PM." Thereafter, on August 11, 1995 this Court issued following
directions regarding the STP at Keshavpur:
"Pursuant
to this Court's order dated August 4, 1995
Ms. Suman Swarup, Secretary Land and Building Department, Government of National Capital
Territory of Delhi has filed an affidavit. Ms. Geeta Luthra,
learned counsel appearing for the Secretary, Land & Building states that
the necessary procedure for acquiring 106 Hectares of land in Keshavpur for the
purpose of setting up of Sewage Treatment Plant has already been completed. She
further states that the advance compensation is to be disbursed to the
land-owners. Mr. Arun Jaitley. Learned counsel states that the DDA shall
hand-over the compensation amount to the administration within three days from
today. Learned counsel further states that about 30 Hectares of acquired land
is under the authorised/unauthorised possession of various persons. According
to her, the remaining 76 Hectares of land can be handed over to the Undertaking
with immediate effect. We request the Committee consisting of Mr. PC Jain, Mr. JK
Mathur and Mr. SP Chakrabarti to visit the area and identify the 76 Hectares of
land which can be immediately surrendered to the Undertaking. This may be done
within one week. We direct the Secretary, Land & Building Department to
send Department's representative/representatives with the team for the purpose
of identification of 76 Hectares of land (as at present).
Mr. Suman
Swarup shall file an additional affidavit in this Court within three weeks from
today indicating the progress made in this matter." Finally, on September
8, 1995 this Court issued the following directions regarding the STP at Keshavpur:-
"So far as the requirement of land for setting up STP in Keshopur is
concerned, this Court issued directions to the Delhi Administration on December
14, 1994 to initiate proceedings within two weeks thereafter and hand over the
possession to the Undertaking as early as possible. We are constrained to say
that till date the possession of the whole of the land (106 hectares) has not
been handed over to the Undertaking. As mentioned above, formal possession of
75 hectares has been handed over to the Undertaking. Ms. Suman Swarup is the
Secretary Incharge of the Land & Building Department and also of the Public
Works Department of the Delhi Administration. We direct Ms. Suman Swarup to
have the proceedings such as the assessment of the value of the structures on
the spot etc. completely within four weeds from September 11,1995. Thereafter, she would made a formal request to the DDA to
demolish the structures and hand over the possession so that the DDA gets the
land from the Delhi Administration on payment and thereafter hand over the same
to the Undertaking. Ms. Suman Swarup shall file an affidavit indicating the
compliance of our order before October 16, 1995."
Various orders and directions issued by this Court from time to time in Mehta's
case clearly show that the land in dispute - for Keshavpur STP - is being
acquired under the directions of this Court. Even the impugned notifications
under Section 4 read with 17 and Section 6 of the Act have been issued under
the directions of this Court. This Court repeatedly indicated in the
orders-directions that there was urgency in taking over the possession of the
land, under acquisition, for the construction of STP at Keshopur. The
authorities were directed to take up the work of land acquisition and
construction of STP's on war-footing.
"Likely"
in the background of this Court's orders passed from time to time for a time
bound programme for setting up the STPs means, for purposes of this case,
"certainly" and "urgently".
Delhi - the capital of India - one of the world's great and
historic cities has come to be listed as third/fourth most polluted and
grubbiest city in the world. Apart from air-pollution, the waters of river Yamuna
are wholly contaminated. It is a paradox that the Delhi tes - despite river Yamuna being
the primary source of water supply - are discharging almost totality of
untreated sewage into the river. There are eighteen drains including Najafgarh drain
which carry industrial and domestic waste including sewage to river Yamuna.
Thirty eight smaller drains fall into Najafgarh drain. The Najafgarh drain
basin is the biggest polluter to river Yamuna. Eight of the drains including Najafgarh
drain are untrapped, four fully trapped and remaining six are partially
trapped. All these eighteen drains, by and large, carry untreated industrial
and domestic wastes and fall into river Yamuna. The river Yamuna enters Delhi at Wazirabad in the North and
leaves at South after travelling a distance of about twenty five kilometers.
The
water of river Yamuna till it enters Najafgarh is fit for drinking after
treatment, but the confluence of Najafgarh drain and seventeen other drains
make the water heavily polluted. The water quality of Yamuna, in Delhi stretch, is neither fit for
drinking nor for bathing. The Biochemical Oxygen Demand (BOD) level in the
river has gone so high that no flora or fauna can survive. It is of utmost
importance and urgency to complete the construction of the STP's in the city of
Delhi. The project is of Great public
importance. It is indeed of national importance. We take judicial notice of the
fact that there was utmost urgency to acquire the land in dispute and as such
the emergency provisions of the Act were rightly invoked. We reject the first
contention raised by the learned counsel.
So far
as the second contention raised by Mr. Vashisht, the same is mentioned to be
rejected.
Whatever
may be the user of the land under the Mastor Plan and the Zonal Development
Plan the State can always acquire the same for public purpose in accordance
with the law of the land. In any case the object and purpose of constructing
the STP's is to protect the environment, control pollution and in the process
maintain and develop the agricultural green.
We see
no force in any of the contentions raised by Mr. Vashisht. We, therefore,
dismiss the Transfer cases (writ petitions) with costs. We quantify the costs
as Rs.10,000/- to be paid by each of the petitioners in these cases.
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