State of West Bengal
and others Versus Prafulla Churan Law and others
J U D G M E N T
The appellants are
aggrieved by the order of the Calcutta High Court, which annulled the invoking of
Section 17 of the Land Acquisition Act, 1894 (for short, "the Act")
by the State Government for the acquisition of premises No. 14 and 12/1, Hare
Street, Calcutta. There is no dispute between the parties that possession of the
premises in question was taken by the Government before independence in March,
1944 by invoking the provisions of the Defence of India Act. After 15 years,
the State Government issued order dated 30.9.1959 under Section 3(1) of the West
Bengal Premises Requisition and Control (Temporary 2 Provisions) Act, 1947 (for
short, "the 1947 Act") for requisition of the premises. After 31
years, the respondents filed Writ Petition No.3601 of 1990 questioning the
continued possession of the premises by the appellants.
The learned Single Judge
of the High Court allowed the writ petition and issued a mandamus for restoration
of the premises to the respondents. Notification dated 27.8.1990, issued by the
State Government under Section 4(1) of the Act for acquisition of the premises,
was quashed by the High Court in Writ Petition No. 1382 of 1991. Thereafter,
the respondents filed Writ Petition No. 3790 of 1993 and reiterated their
prayer for restoration of possession. The learned Single Judge allowed the writ
petition and directed that the possession of the premises be delivered to the
writ petitioners within four months. At the same time, he made it clear that
during this period the concerned authorities may acquire the property in
accordance with law and observed that if the property is acquired within that
period, the question of handing over the possession will not arise.
The respondents
challenged the latter part of the order of the learned Single Judge in Appeal
No. 35 of 1994, which was disposed of by the Division Bench vide order dated
18.4.1994, the relevant portions of which are extracted below: "We are
conscious of the contentions raised by the appellants in this regard, but we think
that we cannot prevent the State authorities to acquire the premises in question
in accordance with the law after ad-hearing to the proper formulates as delineated
in the statute. Some steps have already been taken in this regard in the meantime.
Till such time the acquisition proceedings are complete, the respondents cannot
however take advantage of the situation and continue at the old rate of compensation
which was fixed amount 40 to 50 years before. In one case the requisition was
made in 1944 and in other case it was in 1956.
We would,
accordingly, direct the respondent authorities to pay by way of ad-interim measure
a monthly compensation at the rate of Rs.10/- per sq.ft. confirming to the
market rate for their occupation with a further direction upon the State
respondents to complete the acquisition proceeding within a period of six months
from this date. If this proceeding are not complete by that date, the mandate as
passed by the learned trial Judge should definitely be operative and the writ petitioners,
the present appellants, would be entitled to get back the possession of the
disputed premises in accordance with law." Special Leave Petition (C) No. 4899
of 1996 filed by the respondents was dismissed by this Court on 28.2.1996 with
liberty to them to claim damages for the occupation of the premises for the
period between the date on which the term of requisition came to an end and the
date on which the acquisition proceedings were initiated. In the meanwhile, the
State Government issued notification dated 19.7.1994 under Section 4(1) read
with Section 17(4) of the Act for acquisition of the premises in question for the
purpose of providing permanent accommodation to the unit of Cottage and Small
Scale Industries, Bangasree and also for West Bengal Ceramic Development Corporation.
This was followed by
notification under Section 6, which was published on 18.7.1995. The respondents
challenged the aforementioned notifications in Writ Petition No. 870 of 1996 on
several grounds including the one that there was no valid ground for invoking Section
17(4) of the Act, which resulted in depriving them of the right to file
objection under Section 5-A. It was pleaded that the purpose of acquisition was
not such which could justify dispensing with the inquiry envisaged under
Section 5-A. The learned Single Judge dismissed the writ petition by observing
that the decision of the State Government to invoke Section 17(4) was legally
correct and justified and the power of judicial review cannot be exercised to
interfere with the subjective satisfaction on the issue of urgency.
The Division Bench
allowed the appeal filed by the respondents and quashed the acquisition by
recording the following observations: "The virtue of a public enquiry case
not be overstressed. It is the very heart and soul of the rule of law. It stops
high handed action. It stops mere repetition or words found in Act, when such repetition
lacks substance, in the facts and circumstances of a particular case. This is the
reason why such a hearing is usually compartmentalized as an important compartment
of the rules of natural justice. Had there been a public enquiry, in a usual manner,
the parties would know, what is the reason for their losing their right to
their property; in that event, the court would also be in the know of far more facts.
When approving or disapproving of acquisition proceedings, the details and the facts
are necessary and important, not only for the parties, but also for the court.
Here we know nothing.
Everything has been short - circuited by preliminary notifications doing away
with public enquiry without ever even trying to put it afoot. The Government proceeded
with a closed mind, in an authoritarian way, paying attention only to words being
repeated in the Notifications, exactly as those appear in the L.A. Act.
We are thus of the opinion
that both the notifications in regard to both the premises issued in a combined
way under section 4 and 17(4) were the products of a closed mind, which was already
made up, that the premises being in the possession of the government
undertakings, would be kept by such government undertakings, and a compensation
would be awarded to the public parties. The whole proceedings show such a
closed mind. The appellants had lost their property as soon as the combined notice
under section 4 and 17(4) had been published.
In our opinion, this
manner of proceeding to acquire land vitiates the entire acquisition proceedings.
Dispensing with hearing of objections, when there was no real urgency, is a fatal
infirmity." Shri Avijit Bhattacharjee, learned counsel for the appellants submitted
that the premises were needed for a public purpose i.e., providing permanent
accommodation to the unit of Cottage and Small Scale Industries, Bangasree and
also for West Bengal Ceramic Development Corporation and, as such, no exception
could be taken to the procedure adopted by the appellants. Learned counsel emphasized
that Section 17(4) was invoked because in terms of order dated 18.4.1994 passed
by the Division Bench of the High Court, the State Government was obliged to complete
the 6 acquisition proceedings within six months and this could not have been possible
if objections were invited and opportunity of hearing was given to the respondents
as per requirement of Section 5-A.
In support of his argument,
Shri Bhattacharjee relied upon the judgment of this Court in Chameli Singh and others
v. State of U.P. and another (1996) 2 SCC 549. Shri Shyam Divan, learned senior
counsel appearing for the respondents supported the impugned order and argued that
the Division Bench of the High Court did not commit any error by quashing the acquisition.
He relied upon the recent judgment in Anand Singh and another v. State of Uttar
Pradesh and others (2010) 11 SCC 242, and submitted that the High Court has rightly
nullified the acquisition proceedings on the ground that there was no such urgency
which could justify short circuiting the rule of hearing enshrined in Section 5-A
of the Act. We have considered the respective submissions and carefully perused
the record.
The applicability of
Section 17 of the Act has been considered in several cases, but it is not
necessary to burden the judgment with large number of precedents and it will be
sufficient to notice the two judgments which have direct bearing on the issue
arising in these appeals. In Narayan Govind Gavate v. State of Maharashtra
(1977) 1 SCC 133, a three-Judge 7 Bench of this Court considered various facets
of the issue relating to invoking of urgency clause for the acquisition of land
for development and utilization as a residential-cum-industrial area. The
Bombay High Court had allowed the writ petitions filed by the land owners and
quashed the invoking of Section 17(4) of the Act.
This Court first considered
the question of burden of proof in matters in which inquiry under Section 5A is
dispensed with, referred to Phipson on Evidence (11th Edition), the judgment in
Woolmington v. Director of Public Prosecutions 1935 AC 462, noticed the
provisions of Sections 101, 102, 103, 106 and 114 of the Evidence Act and held:
"Our conclusion therefore is that where certain conditions precedent have to
be satisfied before a subordinate authority can pass an order, (be it executive
or of the character of subordinate legislation), it is not necessary that the
satisfaction of those conditions must be recited in the order itself, unless
the statute requires it, though, as we have already remarked, it is most desirable
that it should be so, for in that case the presumption that the conditions were
satisfied would immediately arise and burden would be thrown on the person challenging
the fact of satisfaction to show that what is recited is not correct. But even
where the recital is not there on the face of the order, the order will not
become illegal ab initio and only a further burden is thrown on the authority
passing the order to satisfy the court by other means that the conditions precedent
were complied with. In the present case this has been done by the filing of an
affidavit before us.
It is also clear
that, even a technically correct recital in an order or notification stating that
the conditions precedent to the exercise of a power have been fulfilled may not
debar the court in a given case from considering the question whether, in fact,
those conditions have been fulfilled. And, a fortiori, the court may consider and
decide whether the authority concerned has applied its mind to really relevant
facts of a case with a view to determining that a condition precedent to the exercise
of a power has been fulfilled. If it appears, upon an examination of the totality
of facts in the case, that the power conferred has been exercised for an extraneous
or irrelevant purpose or that the mind has not been applied at all to the real
object or purpose of a power, so that the result is that the exercise of power
could only serve some other or collateral object, the court will interfere."
(emphasis supplied)
The Court then considered
whether there was any justification for invoking the urgency clause for acquisition
of land for residential and industrial purposes and observed: "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. 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 ease 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." (emphasis supplied) In Anand Singh's case (supra), the two-Judge
Bench considered the question whether the State Government was justified in invoking
Section 17(4) for acquisition of land for residential colony to be constructed
by Gorakhpur Development Authority, Gorakhpur.
The Court noted that
notifications under Section 4(1) read with Section 17(1) and (4) were issued on
November 23, 2003 and February 20, 2004 and declaration 10 under Section 6 was
issued on December 24, 2004, referred to 16 judicial precedents including those
noticed hereinabove and held: "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.
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.
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
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 expeditiously.
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
Devi. 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.
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 5-A." (emphasis supplied)
We may now revert to
the case in hand. A brief recapitulation of the facts shows that possession of
the premises in question was taken in 1944 under the Defence of India Act. After
46 years, an attempt was made by the appellants to acquire the premises but
could not achieve their object because notification dated 27.8.1990 issued
under Section 4(1) was quashed by the High Court. Thereafter, no action was
taken for acquisition of the premises till after the disposal of Appeal No.35 of
1994. The appellants have not explained as to why appropriate steps could not
be taken for acquisition of the premises by complying with the requirement of
Section 5-A of the Act.
The time gap of 3
years between the quashing of first notification and issue of the second notification
was too long to justify invoking of urgency clause which resulted in depriving
the respondents of their right to raise objection against acquisition of the premises.
If the appellants felt that six month's time was not sufficient for completing the
acquisition proceedings, they could have filed an application in Appeal No.34
of 1994 for extension of the time. However, the fact of the matter is that no
such effort was made by them and the urgency clause was invoked on the pretext
of completion of the acquisition in terms of the direction given by the High Court
in Appeal No.35 of 1994.
In our view, this was
clearly impermissible and the respondents could not be deprived of their
legitimate right to raise objection and to be heard against the proposed
acquisition of the premises. 13 As a sequel to the above discussion, we hold
that the Division Bench of the High Court did not commit any error by quashing
the Notifications issued under Section 4(1) read with Section 17 and Section 6
of the Act. In the result, the appeals are dismissed. The parties are left to
bear their own costs.
............................J.
[G.S. Singhvi]
............................J.
[Asok Kumar Ganguly]
New
Delhi;
February
4, 2011
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