Anand
Singh & ANR. Vs. State of U.P. & Ors. [2010] INSC 558 (28 July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2523 OF
2008 Anand Singh & Anr. ...Appellants Versus State of Uttar Pradesh &
Ors. ...Respondents WITH CIVIL APPEAL NO. 2517 OF 2008 CIVIL APPEAL NO. 2518 OF
2008 CIVIL APPEAL NO. 2519 OF 2008 CIVIL APPEAL NO. 2524 OF 2008 CIVIL APPEAL
NO. 2525 OF 2008 CIVIL APPEAL NO. 2561 OF 2008 CIVIL APPEAL NO. 2731 OF 2008
CIVIL APPEAL NO. 2724 OF 2008 AND CIVIL APPEAL NO. 2703 OF 2008
JUDGEMENT
R.M.
Lodha, J.
1.
Of this group of ten appeals, 7 arise from the common judgment and
order dated May 6, 2005 passed by the High Court of Judicature at Allahabad.
The remaining 3 appeals arise from separate judgments (dated January 18, 2007,
March 22, 2007 and April 25, 2007) and in one of them, the common judgment and
order dated May 6, 2005 was followed. As identical questions are involved,
these appeals were heard together and are being disposed of by this common
judgment.
2.
The appellants in these appeals have small holdings of land in
Manbela, Hamidpur and Jangal Sikri etc., Pargana Haveli, District Gorakhpur in
the State of Uttar Pradesh. About 209.515 hectares of land including the land
of the appellants was sought to be acquired for the public purpose, namely, for
residential colony by the Gorakhpur Development Authority (GDA), Gorakhpur.
Vide public notices issued under sub-section (1) of Section 4 of the Land
Acquisition Act, 1894 (for short, `the Act') on November 22, 2003 and February
20, 2004 notifying for general information that the land mentioned in the
schedule appended thereto was needed for the said public purpose. The
provisions of sub- section (1) of Section 17 of the Act were also invoked as in
the opinion of the Governor, the land proposed to be acquired was urgently
required. By use of power under Section 17(4) of the Act, it was stated in the
notification that Section 5A of the Act shall not apply. These public notices
are said to have been published in the Official Gazette as well as other modes
as prescribed in Section 4.
3.
On December 28, 2004, a declaration was made under Section 6 of
the Act that the land mentioned in the schedule including the subject land was
needed for public purpose, namely, for the construction of residential colony
under a planned development scheme. By the said notification, the Collector,
Gorakhpur was also directed that on expiration of 15 days from the publication
of the notice under Section 9(1), the possession of the land mentioned in the
schedule may be taken, although no award under Section 11 has been made.
4.
The present appellants and the other tenure holders whose land was
sought to be acquired pursuant to the aforesaid notifications, approached the
High Court by filing writ petitions wherein, inter alia, a plea was raised that
there was no justification to invoke urgency clause and there was no material
before the Government for dispensing with the enquiry under Section 5A of the
Act. They averred that structures and buildings were existing on their
respective holdings and even otherwise they are entitled to release of their
land from acquisition.
5.
The State Government as well as the GDA opposed the writ petitions
and justified invocation of urgency clause and the dispensation of summary
enquiry under Section 5A as the land was required for providing residential and
housing colony for the lower income group, middle income group and higher
income group by the GDA.
6.
The High Court by its common judgment and order dated May 6, 2005
held that none of the grounds raised by the petitioners in the writ petitions
was sustainable and consequently upheld the notifications under challenge.
While dealing with the aspect of existence of buildings on the subject land and
petitioners' prayer for direction to the State Government to consider
deacquisition by exercising its power under Section 48 of the Act, the Court
observed that the petitioners may approach the State Government for the
redressal of their grievance in accordance with law. As noticed above, in one
of the subsequent orders, the High Court has followed the common judgment and
order dated May 6, 2005.
7.
Be it noticed here that prior to the issuance of the notifications
dated November 22, 2003/February 20, 2004 under Section 4(1) read with Sections
17(1) and 17(4) of the Act, somewhere in the month of February, 2000, a Land
Selection Committee was constituted to identify the availability of land for a
housing colony in or around Gorakhpur. The Committee so constituted made spot
inspection in April, 2001 and proposed acquisition of land in nine villages
including Manbela, Jungle Sikri @ Khorabar, Khorabar @ Subba Bazar, Salempur @
Mugalpur, Hamidpur etc. However, nothing further was done as the tenure holders
opposed the acquisition of their land and the Commissioner, Gorakhpur by his
order dated May 2, 2001 stayed proposal submitted by the Land Selection
Committee in public interest.
8.
Mr. K.B. Sinha, learned senior counsel for the appellants principally
raised two-fold submission before us.
Firstly,
learned senior counsel submitted that invocation of urgency clause under
Section 17(1) and dispensation of summary enquiry for the public purpose,
namely, `development of residential colony' were wholly unjustified. He
contended that such an act of the State was in colourable exercise of power. He
would submit that the development of residential colony takes sufficiently long
time and does not necessitate dispensation with the enquiry and no exceptional
circumstances have been brought on record by the Government that may justify
exercise of such extraordinary power. Secondly, learned senior counsel
submitted that in view of the fact that the appellants have constructed their
residential houses much before the issuance of impugned notifications, the
State must exercise its power under Section 48 and release their land from
acquisition. He would submit that the State Government has adopted a policy of
pick and choose inasmuch as some land has been released from acquisition while
the appellants' land has not been considered for being released.
9.
Learned counsel for the other appellants adopted the arguments of
Mr. K.B. Sinha. Insofar as Civil Appeal No. 2703 of 2008 is concerned, learned
counsel submitted that in respect of the land under consideration in this
appeal, a Degree College is in existence and this aspect has been overlooked by
the Government while issuing impugned notifications.
10.
Mr. Dinesh Dwivedi, learned senior counsel for the State of Uttar
Pradesh as well as Mr. Irshad Ahmad, learned counsel for the GDA justified the
impugned notifications and submitted that the State Government has acted within
its competence and power in invoking urgency clause and dispensation of enquiry
under Section 5A for the public purpose viz., development of residential colony
since in Gorakhpur housing was urgently required for various groups of the
society.
They
submitted that there is no impediment for the State Government in invoking
urgency clause for the public purpose of housing. On behalf of the GDA, it was
contended that many steps have been taken in developing the land acquired under
the impugned notifications inasmuch as water line, electric line, sewerage
line, drainage etc. have been laid and roads constructed. In the written
arguments submitted by the GDA, it has been stated that the total cost of
development of the acquired land is Rs. 8,85,14,000/- and out of which
5,28,00,000/- have already been spent and about 60% work has already been completed.
It has also been submitted by the GDA that after the award was made,
compensation amount has been deposited and barring appellants and 6-7 other
persons, all land owners have accepted compensation. As regards appellants'
land, it is stated that structures have been put up subsequent to the issuance
of impugned notifications.
11.
Learned senior counsel and counsel for the parties cited some
decisions of this Court in support of their respective submissions. We shall
refer to them appropriately a little later.
12.
In the light of the contentions of the parties, the question for
our consideration is as to whether the impugned notifications dated November
22, 2003/February 20, 2004 invoking urgency clause and dispensation of enquiry
under Section 5A for the public purpose viz., `development of residential
colony' are legal and valid and if the answer is in negative, whether on the
facts and in the circumstances, the appellants are entitled to any relief.
13.
Before we advert to the aforesaid question, it is appropriate that
we briefly notice the relevant provisions contained in the Act. The Act was
enacted for the acquisition of land needed for public purposes and for
companies and for determining the amount of compensation to be made on such
acquisition. Section 4 makes a provision for publication of preliminary
notification notifying that land mentioned therein is needed for a public
purpose. It provides for the mode of publication of such notification and
empowers the authorized officers to make survey and set out the boundaries of
the land proposed to be taken amongst other acts as provided in the said
Section. Section 5A confers a right on the person interested in any land which
has been notified under Section 4(1) as being needed for a public purpose or
likely to be needed for public purpose to object to the acquisition of the
land. It provides that the objector shall be provided an opportunity of hearing
and after hearing all such objections and after making such further enquiry,
the Collector may submit his report to the appropriate government along with
his recommendations on the objections and the record of proceedings. Section 6
provides for declaration of intended acquisition in the mode prescribed
thereunder. The declaration made under Section 6 is conclusive evidence that
the land is needed for a public purpose and after making such declaration, the
appropriate government may acquire the land in the manner provided in
subsequent provisions. Section 6 also prescribes time limit in making such declaration.
Section 9 provides a public notice to be given by the Collector stating that
the government intends to take possession of the land and that claims to
compensation for all interests in such land may be made to him. As per Section
11, the Collector is required to enquire into the objections that may be
received from the persons interested pursuant to the notice issued under
Section 9 and determine the award of compensation, inter alia by enquiring into
the value of the land and the respective interests of the persons claiming
compensation. Section 11-A prescribes the limitation for making an award under
Section 11. Section 16 provides for taking possession of the land after the
Collector has made an award under Section 11. The special powers in cases of
urgency and unforeseen emergency are conferred upon the government under
Section 17. Sub-section (1) thereof provides that in case of urgency the
appropriate government may direct the Collector to take possession of any land
needed for public purpose on expiration of fifteen days from the publication of
the notice mentioned in Section 9, although no award has been made. Sub-section
(2) confers power on the appropriate government to acquire the immediate
possession of the land for the purposes specified thereunder in the cases of
unforeseen emergency. Sub-section (3A), however mandates that before taking
possession of any land under sub-section (1) or sub-section (2), the Collector
shall tender payment of 80% of the compensation as estimated by him to the persons
entitled thereto and pay the said compensation to them unless prevented by the
contingencies under Section 31(2). Sub- section (4) empowers the government to
direct that the provisions of Section 5A shall not apply, on its satisfaction
that the provisions contained in sub-section (1) or sub-section (2) are
applicable and a declaration may be made under Section 6 after the publication
of the notification under Section 4(1).
Insofar
as Uttar Pradesh is concerned, sub-section (1A) has been inserted after
sub-section (1) of Section 17 which provides that the power to take possession
under sub-section (1) may also be exercised, inter alia, if the land is
required for `planned development'. Section 48 gives liberty to the government
to withdraw from acquisition of any land.
14.
The matters involving invocation of urgency clause and
dispensation of the enquiry under Section 5A have come up for consideration
before this Court from time to time. In Raja Anand Brahma Shah v. State of
Uttar Pradesh and Ors.1, this Court observed that the opinion of the government
formed under Section 17(4) of the Act can be challenged as ultra vires 1 (1967)
1 SCR 373 in a court of law, if it could be shown that the government never
applied its mind to the matter or that the action of the government is mala
fide.
15.
In case of Jage Ram and Ors. v. State of Haryana and Ors.2 while
considering the urgency provision contained in Section 17, this Court held that
merely because there was some laxity at an earlier stage, it cannot be inferred
that on the date the notification was issued there was no urgency. It was held
that the conclusion of the government in a given case that there was urgency is
entitled to weight, if not conclusive.
16.
A three-Judge Bench of this Court in Narayan Govind Gavate and
Ors. v. State of Maharashtra and Ors.3 extensively considered Section 17 of the
Act vis-`-vis extent of judicial review. That was a case wherein the public
purpose recited in the notification was `development and utilization of said land
as a residential and industrial area'. This Court stated the legal position as
follows :
"37.
We think that Section 17(4) cannot be read in isolation from Section 4(1) and
5-A of the Act. The immediate purpose of a notification under Section 4(1) of
the Act is to enable those who may have any objections to make to lodge them
for purposes of an enquiry under Section 5-A of the Act. It is true that, 2
(1971) 1 SCC 671 3 (1977) 1 SCC 133 although only 30 days from the notification
under Section 4(1) are given for the filing of these objections under Section
5-A of the Act, yet, sometimes the proceedings under Section 5-A are unduly
prolonged. But, considering the nature of the objections which are capable of
being successfully taken under Section 5-A, it is difficult to see why the
summary enquiry should not be concluded quite expeditiously. In view of the
authorities of this Court, the existence of what are prima facie public
purposes, such as the one present in the cases before us, cannot be
successfully challenged at all by objectors. It is rare to find a case in which
objections to the validity of a public purpose of an acquisition can even be
stated in a form in which the challenge could succeed. Indeed, questions
relating to validity of the notification on the ground of mala fides do not
seem to us to be ordinarily open in a summary enquiry under Section 5-A of the
Act.
Hence,
there seems to us to be little difficulty in completing enquiries contemplated
by Section 5-A of the Act very expeditiously.
38. Now,
the purpose of Section 17(4) of the Act is, obviously, not merely to confine
action under it to waste and arable land but also to situations in which an
inquiry under Section 5-A will serve no useful purpose, or, for some overriding
reason, it should be dispensed with. The mind of the officer or authority
concerned has to be applied to the question whether there is an urgency of such
a nature that even the summary proceedings under Section 5-A of the Act should
be eliminated. It is not just the existence of an urgency but the need to
dispense with an inquiry under Section 5-A which has to be considered.
39.
Section 17(2) deals with a case in which an enquiry under Section 5-A of the
Act could not possibly serve any useful purpose. Sudden change of the course of
a river would leave no option if essential communications have to be
maintained. It results in more or less indicating, by an operation of natural
physical forces beyond human control, what land should be urgently taken
possession of. Hence, it offers no difficulty in applying Section 17(4) in
public interest. And, the particulars of what is obviously to be done in public
interest need not be concealed when its validity is questioned in a Court of
justice. Other cases may raise questions involving consideration of facts which
are especially within the knowledge of the authorities concerned. And, if they
do not discharge their special burden, imposed by Section 106, Evidence Act,
without even disclosing a sufficient reason for their abstention from
disclosure, they have to take the consequences which flow from the
non-production of the best evidence which could be produced on behalf of the
State if its stand was correct.
40. In
the case before us, the public purpose indicated is the development of an area
for industrial and residential purposes. This, in itself, on the face of it,
does not call for any such action, barring exceptional circumstances, as to
make immediate possession, without holding even a summary enquiry under Section
5-A of the Act, imperative. On the other hand, such schemes generally take
sufficient period of time to enable at least summary inquiries under Section
5-A of the Act to be completed without any impediment whatsoever to the
execution of the scheme. Therefore, the very statement of the public purpose
for which the land was to be acquired indicated the absence of such urgency, on
the apparent facts of the case, as to require the elimination of an enquiry
under Section 5-A of the Act.
41.
Again, the uniform and set recital of a formula, like a ritual or mantra,
apparently applied mechanically to every case, itself indicated that the mind
of the Commissioner concerned was only applied to the question whether the land
was waste or arable and whether its acquisition is urgently needed. Nothing
beyond that seems to have been considered. The recital itself shows that the
mind of the Commissioner was not applied at all to the question whether the
urgency is of such a nature as to require elimination of the enquiry under
Section 5- A of the Act. If it was, at least the notifications gave no inkling
of it at all. On the other hand, its literal meaning was that nothing beyond
matters stated there were considered.
42. All
schemes relating to development of industrial and residential areas must be
urgent in the context of the country's need for increased production and more
residential accommodation. Yet, the very nature of such schemes of development
does not appear to demand such emergent action as to eliminate summary
enquiries under Section 5-A of the Act. There is no indication whatsoever in
the affidavit filed on behalf of the State that the mind of the Commissioner
was applied at all to the question whether it was a case necessitating the
elimination of the enquiry under Section 5-A of the Act. The recitals in the
notifications, on the other hand, indicate that elimination of the enquiry
under Section 5-A of the Act was treated as an automatic consequence of the
opinion formed on other matters.
The
recital does not say at all that any opinion was formed on the need to dispense
with the enquiry under Section 5-A of the Act. It is certainly a case in which
the recital was at least defective. The burden, therefore, rested upon the
State to remove the defect, if possible, by evidence to show that some
exceptional circumstances which necessitated the elimination of an enquiry
under Section 5-A of the Act and that the mind of the Commissioner was applied
to this essential question. It seems to us that the High Court correctly
applied the provisions of Section 106 of the Evidence Act to place the burden
upon the State to prove those special circumstances, although it also appears
to us that the High Court was not quite correct in stating its view in such a
manner as to make it appear that some part of the initial burden of the
petitioners under Sections 101 and 102 of the Evidence Act had been displaced
by the failure of the State to discharge its duty under Section 106 of the Act.
The correct way of putting it would have been to say that the failure of the
State to produce the evidence of facts especially within the knowledge of its
officials, which rested upon it under Section 106 of the Evidence Act, taken
together with the attendant facts and circumstances, including the contents of
recitals, had enabled the petitioners to discharge their burden under Sections
101 and 102 of the Evidence Act."
17.
In State of Punjab and Anr. v. Gurdial Singh and Ors.4 while
dealing with the invocation of Section 17 of the Act for the public purpose,
namely, grain market, this Court stated that compulsory taking of a man's
property is a serious matter and the smaller the man the more serious the
matter. This Court observed that hearing the owner before depriving him is both
reasonable and pre-emptive of arbitrariness and denial of this administrative
fairness is constitutional anathema except for good reasons. It was further
observed that 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.
18.
In the case of Deepak Pahwa and Ors. v. Lt. Governor of Delhi and
Ors.5, a three-Judge Bench of this Court was concerned with the challenge to
the notification issued under Sections 4 and 17 of the Act for the public
purpose viz.; `construction of a New Transmitting Station for the Delhi 4
(1980) 2 SCC 471 5 (1984) 4 SCC 308 Airport'. While noticing the decision of
this Court in Jage Ram2, the Court observed that very often the delay makes the
problem more and more acute and increases the urgency of the necessity for
acquisition. It was further observed that pre- notification delay would not
render the invocation of the urgency provisions void.
19.
In the case of State of U.P. v. Smt. Pista Devi and Ors.6, this
Court was concerned with the question of urgency in acquisition of large tract
of land by the Meerut Development Authority for its housing scheme with the
object of providing housing accommodation to the residents of Meerut city. The
notification under Section 4 read with Section 17(1) and (4) was published in
the U.P. Gazette on July 12, 1980 and the declaration under Section 6 of the
Act was issued on May 1, 1981. The possession of the land was taken and handed
over to the Meerut Development Authority in July 1982. Thereafter, about 17 persons
who owned in all about 40 acres of land out of the total of about 412 acres
acquired, filed writ petitions in the High Court challenging the aforesaid
notifications on the ground that the action of the government in invoking
Section 6 (1986) 4 SCC 251 17(1) of the Act and dispensing with the enquiry
under Section 5A of the Act was not called for in the circumstances of the
case. The High Court after hearing the parties held that the dispensation with
the enquiry under Section 5A was invalid one and, accordingly, quashed the
notifications. Aggrieved by the judgment of the High Court, the State of U.P.
as well as Meerut Development Authority preferred appeal before this Court by
special leave. This Court set aside the judgment of the High Court. While doing
so, this Court held thus :
"6.
What was said by the learned Judge in the context of provision of housing
accommodation to Harijans is equally true about the problem of providing
housing accommodation to all persons in the country today having regard to the
enormous growth of population in the country. The observation made in the above
decision of the High Court of Andhra Pradesh is quoted with approval by this
Court in Deepak Pahwa v. Lt. Governor of Delhi, (1984) 4 SCC 308, even though
in the above decision the Court found that it was not necessary to say anything
about the post- notification delay. We are of the view that in the facts and
circumstances of this case the post-notification delay of nearly one year is
not by itself sufficient to hold that the decision taken by the State
Government under Section 17(1) and (4) of the Act at the time of the issue of
the notification under Section 4(1) of the Act was either improper or illegal.
7. It was
next contended that in the large extent of land acquired which was about 412
acres there were some buildings here and there and so the acquisition of those
parts of the land on which buildings were situated was unjustified since those
portions were not either waste or arable lands which could be dealt with under
Section 17(1) of the Act. This contention has not been considered by the High
Court. We do not, however, find any substance in it. The government was not
acquiring any property which was substantially covered by buildings. It
acquired about 412 acres of land on the outskirts of Meerut city which was
described as arable land by the Collector. It may be true that here and there
were a few super- structures. In a case of this nature where a large extent of
land is being acquired for planned development of the urban area it would not
be proper to leave the small portions over which some super- structures have
been constructed out of the development scheme. In such a situation where there
is real urgency it would be difficult to apply Section 5- A of the Act in the
case of few bits of land on which some structures are standing and to exempt
the rest of the property from its application. Whether the land in question is
waste or arable land has to be judged by looking at the general nature and
condition of the land. It is not necessary in this case to consider any further
the legality or the propriety of the application of Section 17(1) of the Act to
such portions of land proposed to be acquired, on which super-structures were
standing because of the special provision which is inserted as sub-section
(1-A) of Section 17 of the Act by the Land Acquisition (U.P. Amendment) Act (22
of 1954) which reads thus:
"(1-A)
The power to take possession under sub- section (1) may also be exercised in
the case of land other than waste or arable land, where the land is acquired
for or in connection with sanitary improvements of any kind or planned
development."
8. It is
no doubt true that in the notification issued under Section 4 of the Act while
exempting the application of Section 5-A of the Act to the proceedings, the
State Government had stated that the land in question was arable land and it
had not specifically referred to sub-section (1-A) of Section 17 of the Act
under which it could take possession of land other than waste and arable land
by applying the urgency clause. The mere omission to refer expressly Section
17(1-A) of the Act in the notification cannot be considered to be fatal in this
case as long as the government had the power in that sub-section to take lands other
than waste and arable lands also by invoking the urgency clause. Whenever power
under Section 17(1) is invoked the government automatically becomes entitled to
take possession of land other than waste and arable lands by virtue of
sub-section (1-A) of Section 17 without further declaration where the
acquisition is for sanitary improvement or planned development. In the present
case the acquisition is for planned development. We do not, therefore find any
substance in the above contention."
20.
In Rajasthan Housing Board and Ors. v. Shri Kishan and Ors.7, a
large extent of land was acquired for the benefit of Rajasthan Housing Board.
While dealing with the provisions contained in Sections 17(4) and (1), 4 and 6
of Rajasthan Land Acquisition Act, 1953 (the provisions being pari materia to
the provisions of the Act), this Court held that the satisfaction under Section
17(4) is a subjective one and that so long as there is material upon which the
Government could have formed the said satisfaction fairly, the Court would not
interfere nor would it examine the material as an appellate authority. This
Court noticed that in view of the time bound programme stipulated by the lender
(HUDCO) and a large number of engineers and other subordinate staff for
carrying 7 (1993) 2 SCC 84 out the said work having already been appointed, the
satisfaction of the State Government that holding an enquiry under Section 5A
would result in uncalled for delay endangering the entire scheme and time
schedule of the Housing Board could not be faulted.
21.
In Chameli Singh and Ors. v. State of U.P. and Anr..8 , a
three-Judge Bench of this Court was seized with a matter wherein acquisition of
the land was for the public purpose, namely, for providing `houses to Scheduled
Castes'.
Dealing
with a challenge to the opinion of urgency formed by the appropriate government
and its satisfaction to eliminate the enquiry under Section 5A, this Court
observed that the opinion of the government is entitled to great weight unless
it is vitiated by mala fides or colourable exercise of power. Noticing the
earlier judgments of this Court, particularly, Pista Devi6, Deepak Pahwa5, Jage
Ram2, Narayan Govind Gavate3 and Rajasthan Housing Board8, this Court said:
"14.
What was said by Chinnappa Reddy, J. in the context of provisions of housing
accommodation to Harijans is equally applied to the problem of providing
housing accommodation to all persons in the country in State of U.P. v. Pista
Devi, (1986) 4 SCC 251, holding that today having regard to the enormous growth
of population, urgency clause for planned 8 (1996) 2 SCC 549 development in
urban areas was upheld by a two- Judge Bench. The ratio of Kasireddy Papaiah
case, AIR 1975 AP 269, was quoted with approval by a three-Judge Bench in
Deepak Pahwa v. Lt. Governor of Delhi, (1984) 4 SCC 308. The delay by the
officials was held to be not a ground to set at naught the power to exercise
urgency clause in both the above decisions. It would thus be clear that housing
accommodation to the Dalits and Tribes is in acute shortage and the State has
undertaken as its economic policy under planned expenditure to provide shelter
to them on a war footing, in compliance with the constitutional obligation
undertaken as a member of the UNO to the resolutions referred to hereinbefore.
15. The
question, therefore, is whether invocation of urgency clause under Section
17(4) dispensing with inquiry under Section 5-A is arbitrary or is unwarranted
for providing housing construction for the poor. In Aflatoon v. Lt. Governor of
Delhi, (1975) 4 SCC 285, a Constitution Bench of this Court had upheld the
exercise of the power by the State under Section 17(4) dispensing with the
inquiry under Section 5-A for the planned development of Delhi. In Pista Devi
case this Court while considering the legality of the exercise of the power
under Section 17(4) exercised by the State Government dispensing with the
inquiry under Section 5-A for acquiring housing accommodation for planned
development of Meerut, had held that providing housing accommodation is
national urgency of which court should take judicial notice. The
pre-notification and post-notification delay caused by the officer concerned
does not create a cause to hold that there is no urgency. Housing conditions of
Dalits all over the country continue to be miserable even till date and is a
fact of which courts are bound to take judicial notice. The ratio of Deepak
Pahwa case was followed. In that case a three-Judge Bench of this Court had
upheld the notification issued under Section 17(4), even though lapse of time
of 8 years had occurred due to inter-departmental discussions before receiving
the notification. That itself was considered to be a ground to invoke urgency
clause.
It was
further held that delay on the part of the lethargic officials to take further
action in the matter of acquisition was not sufficient to nullify the urgency
which existed at the time of the issuance of the notification and to hold that
there was never any urgency. In Jage Ram v. State of Haryana, (1971) 1 SCC 671,
this Court upheld the exercise of the power of urgency under Section 17(4) and
had held that the lethargy on the part of the officers at an early stage was
not relevant to decide whether on the day of the notification there was urgency
or not. Conclusion of the Government that there was urgency, though not
conclusive, is entitled to create weight. In Deepak Pahwa case this Court had
held that very often persons interested in the land proposed to be acquired may
make representations to the authorities concerned against the proposed writ
petition that is bound to result in multiplicity of enquiries, communications
and discussions leading invariably to delay in the execution of even urgent
projects. Very often delay makes the problem more and more acute and increases
urgency of the necessity for acquisition. In Rajasthan Housing Board v. Shri
Kishan, (1993) 2 SCC 84, this Court had held that it must be remembered that
the satisfaction under Section 17(4) is a subjective one and that so long as
there is material upon which Government could have formed the said satisfaction
fairly, the Court would not interfere nor would it examine the material as an
appellate authority. In State of U.P. v. Keshav Prasad Singh, (1995) 5 SCC 587,
this Court had held that the Government was entitled to exercise the power
under Section 17(4) invoking urgency clause and to dispense with inquiry under
Section 5-A when the urgency was noticed on the facts available on record.
In
Narayan Govind Gavate case a three-Judge Bench of this Court had held that
Section 17(4) cannot be read in isolation from Section 4(1) and Section 5-A of
the Act. Although 30 days from the notification under Section 4(1) are given
for filing objections under Section 5-A, inquiry thereunder unduly gets prolonged.
It is difficult to see why the summary inquiry could not be completed quite
expeditiously.
Nonetheless,
this Court held the existence of prima facie public purpose such as the one
present in those cases before the Court could not be successfully challenged at
all by the objectors. It further held that it was open to the authority to take
summary inquiry under Section 5-A and to complete inquiry very expeditiously.
It was emphasised that:
"...
The mind of the officer or authority concerned has to be applied to the
question whether there is an urgency of such a nature that even the summary
proceedings under Section 5-A of the Act should be eliminated. It is not just
the existence of an urgency but the need to dispense with an inquiry under
Section 5-A which has to be considered."
16. 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.
17. 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 5-A. 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 being an appellate
forum, would not disturb the finding unless the court conclusively finds the
exercise of the power mala 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."
22.
A three-Judge Bench of this Court in Meerut Development Authority
& Ors. v. Satbir Singh and Ors.9 held that the acquisition for housing
development is an urgent purpose and exercise of power under Section 17(4)
dispensing with the enquiry under Section 5A is not invalid.
23.
In Om Prakash and Anr. v. State of U.P. and Ors.10, the question
presented before this Court for consideration was, inter alia, whether the
State Government was justified in invoking urgency clause under Section 17(1)
and dispensing with the enquiry under Section 5A for acquisition of the land
for residential and industrial purpose for the purposes of New Okhla Industrial
Development Authority (NOIDA). The argument on behalf of the appellants therein
was that there was no relevant material with the appropriate government to
enable it to arrive at its subjective satisfaction about dispensing with the
enquiry under Section 5A in connection with the subject 9 (1996) 11 SCC 462 10
(1998) 6 SCC 1 acquisition and there was delay of more than one year in
issuance of declaration under Section 6 after issuance and publication of
notification under Section 4 read with Section 17 of the Act. This Court
observed :
".......Even
that apart, if that was the urgency suggested by NOIDA on 14-12-1989, we fail
to appreciate as to how the State authorities did not respond to that proposal
equally urgently and why they issued notification under Section 4 read with
Section 17(4) after one year in January 1991. On this aspect, no explanation
whatsoever was furnished by the respondent-State authorities before the High
Court. It is also interesting to note that even after dispensing with inquiry
under Section 5-A pursuant to the exercise of powers under Section 17(4) on
5-1- 1991, Section 6 notification saw the light of day only on 7-1-1992. If the
urgency was of such a nature that it could not brook the delay on account of
Section 5-A proceedings, it is difficult to appreciate as to why Section 6
notification in the present case could be issued only after one year from the
issuance of Section 4 notification. No explanation for this delay is
forthcoming on record. This also shows that according to the State authorities,
there was no real urgency underlying dispensing with Section 5-A inquiry
despite NOIDA suggesting at the top of its voice about the need for urgently
acquiring the lands for the development of Sector 43 and other sectors."
Noticing
the conflict in the decisions of this Court in Narayan Govind Gavate3 and Pista
Devi6, the Bench said :
"20.
It is no doubt true that the aforesaid decision of the three-Judge Bench of
this Court was explained by a latter two-Judge Bench decision of this Court in
State of U.P. v. Pista Devi, (1986) 4 SCC 251, as being confined to the fact
situation in those days when it was rendered. However, it is trite to note that
the latter Bench of two learned Judges of this Court could not have laid down any
legal proposition by way of a ratio which was contrary to the earlier decision
of the three-Judge Bench in Narayan Govind Gavate. In fact, both these
decisions referred to the fact situations in the light of which they were
rendered."
24.
In the case of Union of India and Ors. v. Mukesh Hans11, a
three-Judge Bench of this Court while dealing with the interpretation of
Section 17(4) of the Act and the procedure to be followed by the appropriate
government while dispensing with the enquiry contemplated under Section 5A of
the Act said:
31.
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-section (1) or (2) of Section 17, it
may direct that the provisions of Section 5-A shall not apply and if such
direction is given then Section 5-A inquiry can be dispensed with and a
declaration may be made under Section 6 on publication of Section 4(1)
notification and possession can be made.
32. A
careful perusal of this provision which is an exception to the normal mode of
acquisition contemplated under the Act shows that 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 the
Section 5-A inquiry. It requires an opinion to be formed by the Government
concerned that along with the existence of such urgency or unforeseen emergency
there is also a need for 11 (2004) 8 SCC 14 dispensing with Section 5-A inquiry
which indicates that the legislature intended the appropriate Government to
apply its mind before dispensing with Section 5-A inquiry. It also indicates
that mere existence of an urgency under Section 17(1) or unforeseen emergency
under Section 17(2) would not by itself be sufficient for dispensing with
Section 5-A 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 Sections 17(1) and (2) itself could have incorporated that
in such situation of existence of urgency or unforeseen emergency automatically
Section 5-A inquiry will be dispensed with. But then that is not the language
of the section which in our opinion requires the appropriate Government to
further consider the need for dispensing with Section 5-A inquiry in spite of
the existence of unforeseen emergency. This understanding of ours as to the
requirement of an application of mind by the appropriate Government while
dispensing with Section 5-A inquiry does not mean that in each 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 Section 5-A 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 5-A but then there is a need for
application of mind by the appropriate Government that such an urgency for
dispensation of the Section 5-A inquiry is inherent in the two types of
urgencies contemplated under Sections 17(1) and (2) of the Act.
33. An
argument was sought to be advanced on behalf of the appellants that once the
appropriate Government comes to the conclusion that there is an urgency or
unforeseen emergency under Sections 17(1) and (2), the dispensation with
inquiry under Section 5-A becomes automatic and the same can be done by a
composite order meaning thereby that there is no need for the appropriate
Government to separately apply its mind for any further emergency for
dispensation with an inquiry under Section 5-A.
We are
unable to agree with the above argument because sub-section (4) of Section 17
itself indicates that the "Government may direct that the provisions of
Section 5-A shall not apply" (emphasis supplied) which makes it clear that
not in every case where the appropriate Government has come to the conclusion
that there is urgency and under sub-section (1) or unforeseen emergency under
sub-section (2) of Section 17, the Government will ipso facto have to direct
the dispensation of the inquiry. For this we do find support from a judgment of
this Court in the case of Nandeshwar Prasad v. State of U.P., (1964) 3 SCR 425,
wherein considering the language of Section 17 of the Act which was then
referable to waste or arable land and the U.P. Amendment to the said section,
this Court held thus:
"It
will be seen that Section 17(1) gives power to the Government to direct the
Collector, though no award has been made under Section 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 Section 17(1), taking possession and vesting which are provided in
Section 16 after the award under Section 11 are accelerated and can take place
fifteen days after the publication of the notice under Section 9. Then comes
Section 17(4) which provides that in case of any land to which the provisions
of sub-section (1) are applicable, the Government may direct that the
provisions of Section 5-A shall not apply and if it does so direct, a
declaration may be made under Section 6 in respect of the land at any time
after the publication of the notification under Section 4(1). It will be seen
that it is not necessary even where the Government makes a direction under
Section 17(1) that it should also make a direction under Section 17(4). If the
Government makes a direction only under Section 17(1) the procedure under
Section 5-A would still have to be followed before a notification under Section
6 is issued, though after that procedure has been followed and a notification
under Section 6 is issued the Collector gets the power to take possession of
the land after the notice under Section 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
Section 17(4) that it becomes unnecessary to take action under Section 5-A and
make a report thereunder. It may be that generally where an order is made under
Section 17(1), an order under Section 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
Acquisition Act an order under Section 17(1) or Section 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
stand."
(emphasis
supplied)
34. A
careful reading of the above judgment shows that this Court in the said
Nandeshwar Prasad case has also held that there should be an application of
mind to the facts of the case with special reference to this concession of
Section 5-A inquiry under the Act.
35. At
this stage, it is relevant to notice that the limited right given to an
owner/person interested under Section 5-A of the Act to object to the
acquisition proceedings is not an empty formality and is a substantive right,
which can be taken away for good and valid reason and within the limitations
prescribed under Section 17(4) of the Act. The object and importance of Section
5-A inquiry was noticed by this Court in the case of Munshi Singh v. Union of
India, (1973) 2 SCC 337, wherein this Court held thus:
"7.
Section 5-A embodies a very just and wholesome principle that a person whose
property is being or is intended to be acquired should have a proper and
reasonable opportunity of persuading the authorities concerned that acquisition
of the property belonging to that person should not be made.
... 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 5-A:"
36. It is
clear from the above observation of this Court that right of representation and
hearing contemplated under Section 5-A of the Act is a very valuable right of a
person whose property is sought to be acquired and he should have appropriate
and reasonable opportunity of persuading the authorities concerned that the
acquisition of the property belonging to that person should not be made.
Therefore,
in our opinion, if the appropriate Government decides to take away this minimal
right then its decision to do so must be based on materials on record to
support the same and bearing in mind the object of Section 5-A."
25.
In Union of India and Ors. v. Krishan Lal Arneja and Ors.12, the
issue under consideration before this Court related to the validity of
notification for the acquisition of the land for a public purpose, inter alia,
`housing of the government offices' and `residential use of government
servants' invoking Section 17(1) and (4). This Court emphasized that failure to
take timely action for acquisition by the authorities cannot be a ground to 12
(2004) 8 SCC 453 invoke the urgency clause to the serious detriment to the
right of the land owner to raise objections to the acquisition under Section
5A. It was observed that Gurdial Singh4 is not an authority for the proposition
that in the absence of material to justify urgency clause, long delay in
issuing the notification could be ignored or condoned to uphold the validity of
such notification.
26.
In Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai
and Ors.13, this Court observed that Section 5A of the Act confers a valuable
right in favour of a person whose lands are sought to be acquired. It was
further observed that the Act is an expropriatory legislation and, therefore,
its provisions should be strictly construed as it deprives a person of his land
without consent.
27.
This Court in the case of Mahadevappa Lachappa Kinagi and Ors. v.
State of Karnataka and Ors.14 posited that Section 17 of the Act confers
extraordinary powers on the authorities under which it can dispense with the
normal procedure laid down under Section 5A of the Act in cases of exceptional
urgency and that such powers cannot be lightly 13 (2005) 7 SCC 627 14 (2008) 12
SCC 418 resorted to except in case of real urgency enabling the government to
take immediate possession of the land proposed to be acquired for public
purpose. That case related to the acquisition of land for the rehabilitation of
145 families uprooted because of commissioning of barrage of Bhima River. It
was held that the case indicated an exceptional case where exceptional power
under Section 17 could be invoked.
28.
Now, two recent decisions of this Court need to be noticed. In
Babu Ram and Anr. v. State of Haryana and Anr.15, this Court was concerned with
the legality of the notification for acquisition of land for construction of
sewage treatment plant.
The
appropriate government invoked its power under Section 17(2)(c) and by invoking
its power under Section 17(4) excluded the application of Section 5A of the
Act. After referring to few decisions of this Court, particularly, Gurdial
Singh4 and Om Prakash10, it was observed that these decisions assign a great
deal of importance to the right of a citizen to file objections under Section
5A of the Act and the fact that such right was elevated to the status of a
fundamental right is in itself sufficient to indicate that great care had to be
taken by the 15 (2009) 10 SCC 115 authorities before resorting to Section 17(4)
of the Act and they have to satisfy themselves that there was an urgency of
such nature which could brook no delay whatsoever. In another case, viz.; Tika
Ram and Ors. v. State of Uttar Pradesh and Ors.16, constitutional validity of
the provisions of Sections 17(1), 17(1A), 17(3A), 17(4) and the proviso to
Section 17(4) as amended by U.P. Act 5 of 1991 was under challenge besides the
various other provisions of the Act. This Court overruled the challenge to the
constitutionality of the aforenoticed provisions. As regards invocation of
power under Section 17 of the Act and doing away with Section 5A enquiry, it
was held :
"115.
While considering as to whether the Government was justified in doing away with
the inquiry under Section 5-A, it must be noted that there are no allegations
of mala fides against the authority.
No
evidence has been brought before the judgment and the High Court has also
commented on this. The housing development and the planned developments have
been held to be the matters of great urgency by the Court in Pista Devi case.
In the present case we have seen the judgment of the High Court which has gone
into the records and has recorded categorical finding that there was sufficient
material before the State Government and the State Government has objectively
considered the issue of urgency. Even before this Court, there were no
allegations of mala fides. A notice can be taken of the fact that all the lands
which were acquired ultimately came to be utilised for the Scheme. We,
therefore, reject the 16 (2009) 10 SCC 689 argument that there was no urgency
to justify dispensation of Section 5-A inquiry by applying the urgency
clause".
29.
`Eminent domain' is right or power of a sovereign State to
appropriate the private property within the territorial sovereignty to public
uses or purposes. It is exercise of strong arm of government to take property
for public uses without owner's consent. It requires no constitutional
recognition; it is an attribute of sovereignty and essential to the sovereign
government. (Words and Phrases, Permanent Edition, Volume 14, 1952 (West
Publishing Co.,).
30.
The power of eminent domain, being inherent in the government, is
exercisable in the public interest, general welfare and for public purpose.
Acquisition of private property by the State in the public interest or for
public purpose is nothing but an enforcement of the right of eminent domain. In
India, the Act provides directly for acquisition of particular property for
public purpose. Though right to property is no longer fundamental right but
Article 300A of the Constitution mandates that no person shall be deprived of
his property save by authority of law. That Section 5A of the Act confers a valuable
right to an individual is beyond any doubt. As a matter of fact, this Court has
time and again reiterated that Section 5A confers an important right in favour
of a person whose land is sought to be acquired. When the government proceeds
for compulsory acquisition of particular property for public purpose, the only
right that the owner or the person interested in the property has, is to submit
his objections within the prescribed time under Section 5A of the Act and
persuade the State authorities to drop the acquisition of that particular land
by setting forth the reasons such as the unsuitability of the land for the
stated public purpose; the grave hardship that may be caused to him by such
expropriation, availability of alternative land for achieving public purpose
etc. Moreover, right conferred on the owner or person interested to file
objections to the proposed acquisition is not only an important and valuable
right but also makes the provision for compulsory acquisition just and in
conformity with the fundamental principles of natural justice. The exceptional
and extraordinary power of doing away with an enquiry under Section 5A in a
case where possession of the land is required urgently or in 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 5A. 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 5A on the aspect whether the urgency is of such a nature
that justifies elimination of summary enquiry under Section 5A. A repetition of
statutory phrase in the notification that the state government is satisfied
that the land specified in the notification is urgently needed and provision
contained in Section 5A shall not apply, though may initially raise a
presumption in favour of the government that pre-requisite 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 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
5A has been formed by the government after due application of mind on the
material placed before it. 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, the judicial review of such
administrative decision may become necessary. 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 itself. 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 5A may not be held and objections of land owners/persons
interested may not be considered. In many cases on general assumption, likely
delay in completion of enquiry under Section 5A is set up as a reason for
invocation of extraordinary power in dispensing with the enquiry little
realizing 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
expeditiously.
The
special provision has been made in Section 17 to eliminate enquiry under
Section 5A 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 5A. We have already noticed few decisions
of this Court. There is conflict of view in the two decisions of this Court
viz.; Narayan Govind Gavate3 and Pista Devi6. In Om Prakash10 this Court held
that decision in Pista Devi6 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 Gavate3. We agree. 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 been placed by the appropriate government
before the court justifying that urgency was of such nature that necessitated
elimination of enquiry under Section 5A.
31.
In a country as big as ours, the roof over head is a distant dream
for large number of people. The urban development continues to be haphazard.
There is no doubt that planned development and housing are matters of priority
in developing nation. The question is as to whether in all cases of `planned
development of the city' or `for the development of residential area', the
power of urgency may be invoked by the government and even where such power is
invoked, should the enquiry contemplated under Section 5A be dispensed with
invariably. We do not think so. Whether `planned development of city' or
`development of residential area' cannot brook delay of few months to complete
the enquiry under Section 5A? In our opinion, ordinarily it can. The government
must, therefore, do a balancing act and resort to the special power of urgency
under Section 17 in the matters of acquisition of land for the public purpose
viz.; `planned development of city' or `for development of residential area' in
exceptional situation. Use of the power by the government under Section 17 for
`planned development of the city' or `the development of residential area' or
for `housing' must not be as a rule but by way of an exception. Such
exceptional situation may be for the public purpose viz., rehabilitation of
natural calamity affected persons;
rehabilitation
of persons uprooted due to commissioning of dam or housing for lower strata of
the society urgently; rehabilitation of persons affected by time bound
projects, etc. The list is only illustrative and not exhaustive. In any case,
sans real urgency and need for immediate possession of the land for carrying
out the stated purpose, heavy onus lies on the government to justify exercise
of such power. It must, therefore, be held that the use of the power of urgency
and dispensation of enquiry under Section 5A by the government in a routine
manner for the `planned development of city' or `development of residential
area' and thereby depriving the owner or person interested a very valuable
right under Section 5A may not meet the statutory test nor could be readily
sustained.
32.
Adverting now to the facts of the present case, it would be seen
that somewhere in February, 2000, a Land Selection Committee was constituted to
identify the availability of land for a housing colony by the GDA. In April,
2001, the Committee so constituted inspected the site and proposed acquisition
of land in Village Manbela and few other villages but nothing further was done
as the tenure holders opposed the acquisition of their land and the
Commissioner, Gorakhpur in public interest stayed proposal for acquisition.
Abruptly the notifications for the proposed acquisition were issued on November
22, 2003/February 20, 2004 under Section 4 of the Act. In these notifications
urgency clause was invoked and the enquiry under Section 5A was dispensed with.
Then, for more than one year nothing was done. It was only on December 28, 2004
that a declaration under Section 6 was made. If the matter could hang on from April,
2001 to November 22, 2003/February 20, 2004 before the notifications under
Section 4 were issued and for about a year thereafter in issuance of
declaration under Section 6, acquisition proceedings could have been arranged
in a manner so as to enable the land owners and/or the interested persons to
file their objections under Section 5A within the prescribed time and complete
the enquiry expeditiously. It is true that insofar as Uttar Pradesh is
concerned, there is amendment in Section 17. Sub-section (1A) enables the
Government to take possession under sub- section (1) of Section 17 if the land
is required for public purpose viz.; `planned development'. Yet for forming an
opinion that provisions of Section 5A shall not apply, the state government must
apply its mind that urgency is of such nature warranting elimination of enquiry
under Section 5A. Although some correspondence between the authorities and the
government was placed before the High Court by the GDA, but no material has
been placed on record by the State Government either before the High Court or
before this Court indicating the application of mind that the urgency was of
such nature which warranted elimination of the enquiry under Section 5A of the
Act. It is interesting to note that GDA wanted the subject land to be acquired
because their land bank had no land and they wanted land to keep the Authority
running. If profit-making and the sustenance of the Development Authority was
the motive, surely urgency was not of such nature that it could brook no delay
whatsoever. In the facts and circumstances of the present case, therefore, the
Government has completely failed to justify the dispensation of an enquiry
under Section 5A by invoking Section 17(4). For this reason, the impugned
notifications to the extent they state that Section 5A shall not apply suffer
from legal infirmity. The question, then, arises whether at this distance of
time, the acquisition proceedings must be declared invalid and illegal. In the
written submissions of the GDA, it is stated that subsequent to the declaration
made under Section 6 of the Act in the month of December, 2004, award has been
made and out of the 400 land owners more than 370 have already received
compensation. It is also stated that out of the total cost of Rs. 8,85,14,000/-
for development of the acquired land, an amount of Rs. 5,28,00,000/- has
already been spent by the GDA and more than 60% of work has been completed. It,
thus, seems that barring the appellants and few others all other tenure
holders/land owners have accepted the `takings' of their land.
It is too
late in the day to undo what has already been done.
We are of
the opinion, therefore, that in the peculiar facts and circumstances of the
case, the appellants are not entitled to any relief although dispensation of
enquiry under Section 5A was not justified.
33.
On behalf of the appellants, it was vehemently argued that the
government may be directed to release their land from proposed acquisition. It
was submitted by the appellants that houses/structures and buildings (including
educational building) are existing on the subject land and as per the policy
framed by the State Government, the land deserves to be exempted from
acquisition. The submission of the appellants has been countered by the respondents
and in the written submissions filed by the GDA, it is stated that the
houses/structures and buildings which are claimed to exist, have been raised by
the appellants subsequent to the notification under Section 4(1) of the Act
and, therefore, they are not entitled to release of their land from
acquisition. In our view, since the existence of houses/structures and
buildings as on November 22, 2003/February 20, 2004 over the appellants' land
has been seriously disputed, it may not be appropriate to issue any direction
to the State Government, as prayed for by the appellants, for release of their
land from acquisition.
However,
as the possession has not been taken, the interest of justice would be
subserved if the appellants are given liberty to make representation to the
State authorities under Section 48(1) of the Act for release of their land. We,
accordingly, grant liberty to the appellants to make appropriate representation
to the State Government and observe that if such representation is made by the
appellants within two months from today, the State Government shall consider
such representation in accordance with law and in conformity with the State
policy for release of land under Section 48(1) without any discrimination
within three months from receipt of such representation.
34.
In the result, these appeals fail and are dismissed, subject to
the liberty reserved to the appellants for making representations under Section
48 (1) of the Act.
35.
I.A. for impleadment is rejected and I.A. for discharge of
Advocate - Mr. S.C. Birla is allowed.
36.
No order as to costs.
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