Dev Sharan & Ors.
Vs State of U.P. & Ors
Ram Dixit Vs State of
U.P. & Ors.
J U D G M E N T
GANGULY, J.
1.
Leave
granted.
2.
These
appeals have been preferred from the judgment and order of the High Court dated
25.11.2009 in Writ Petitions (Civil) No.46457/2009.
3.
The
appellants challenge the acquisition of their agricultural lands by the State of
Uttar Pradesh for the construction of the district jail of Shahjahanpur. The appellants
themselves are bhumidar with transferable rights and are residents of village Murchha,
tehsil Puwayan in the district of Shahjahanpur, Uttar Pradesh.
4.
The
State of Uttar Pradesh vide its office memorandum dated 25.10.2004 constituted a
committee under the Chairmanship of the Hon'ble Minister of Revenue to suggest its
recommendations for transfer of prisons situated in the congested areas of various
districts. After conducting its second and final meeting on 10th January, 2005,
the said committee recommended to the State Government the shifting of the district
jails from congested areas to outside the city limits within the district. As
per the schedule, this shifting was to be done in two phases:
1st phase
1. District Jail,
Shahjahanpur;
2. District Jail,
Azamgarh;
3. District Jail,
Jaunpur; and
4. District Jail, Moradabad.
2nd phase
1. District Jail,
Badaun;
2. District Jail,
Varanasi;
3. District Jail,
Barielly; and
4. District Jail,
Muzaffarnagar.
5.
The
existing district jail of Shahjahanpur, constructed in 1870, was one of the oldest
and required shifting to a new premises. The Government case is that the district
jail is located in a densely populated area of the city and is overcrowded, housing
as many as 1869 prisoners, while having a capacity of only
6.
Thereafter,
the State Government constituted a committee under the Chairmanship of Chief
Secretary, Government of U.P. vide office memorandum dated 12.9.2007 to evaluate
and consider the shifting of prisons identified to be shifted in the first phase.
Prisons in the districts of Lucknow, Moradabad were added to the list. This committee
was also to evaluate and recommend the means for modernisation of existing old prisons.
In its meeting dated 10.10.2007 the committee recommended that a Detailed Project
Report (DPR) be prepared by the Rajkiya Nirman Nigam, and that acquisition of lands
for shifting of the prisons be done on a priority basis.
7.
These
recommendations were accepted by the State Government vide the approval of the cabinet
dated 7.12.2007. Following this decision, the Director General of Prisons (Administration
and Reforms), Uttar Pradesh, vide letter dated 04.06.2008, requested the District
Magistrate, Shahjahanpur to send all the relevant records to the State Government
for publication of notification under Sections 4(1) and 17 of the Land Acquisition
Act, 1894 (hereinafter `the Act'). The land suggested for such acquisition by the
Divisional Land Utility Committee was one admeasuring 25.89 hectares (63.93
acres) in village Morchha, tehsil Puwayan in the district of Shahjahanpur.
8.
Thereafter,
the District Magistrate, Shahjahanpur forwarded the proposal to the Commissioner
and Director, Directorate of Land Acquisition (Revenue Board, Uttar Pradesh),
for the issuance of notifications under Sections 4(1) and 17 of the Act, which in
turn approved of it and further forwarded the recommendation to the State Government,
vide letter dated 2.07.2008.
9.
Thus,
the State Government issued notifications under Sections 4(1) and 17 on 21.08.2008.
However, the provisions of Section 5A inquiry were dispensed with. The State Government
explained that this was done in view of the pressing urgency in the matter of
construction of the jails.
10.
Being
aggrieved by the aforesaid notifications, the appellants moved a writ petition before
the High Court under Article 226 of the Constitution of India. The High Court in
its decision dated 25.11.2009 refused to interfere with the selection of the site
for the construction of the jail premises on the ground that it was not required
to do so unless it found the selection of the site was wholly arbitrary. The
High Court also approved the invoking of emergency provisions under Section 17
of the Act as per the guidelines given in Essco Fabs Private Limited and another
vs. State of Haryana and another (2009) 2 SCC 377. Having thus stated, the High
Court dismissed the writ petition.
11.
Before
this Court the appellants broadly raised the following arguments: 1. Whether or
not the State Government was justified in acquiring the said pieces of fertile agricultural
land, when there were alternative sites of unfertile banjar land available? 2.
Whether or not the State Government was justified in dispensing with the inquiry
which is mandated to be conducted under Section 5A of the Act, especially when
one year elapsed between the notifications under Section 4 and the one under Section
6. They further stated that the High Court had erred insofar as it upheld the factum
of urgency in the absence of a categorical finding, an enquiry under Section 5A
would have been detrimental to public interest.
12.
It
was urged that it was clear from the counter of the respondent that the contemplation
of a new prison was under consideration of the State Government for several
years. Committee was formed, matter was discussed at a leisurely pace at various
levels and there is no material fact to justify the abridgement of the appellants'
right of raising an objection to acquisition and of a hearing under Section 5A
of the Act.
13.
This
Court finds a lot of substance in the contentions of the appellants.
14.
In
connection with land acquisition proceeding whenever the provision of Section 17
and its various sub-sections including Section 17(4) is used in the name of
taking urgent or emergent action and the right of hearing of the land holder under
Section 5A is dispensed with, the Court is called upon to consider a few fundamentals
in the exercise of such powers.
15.
Admittedly,
the Land Acquisition Act, a pre-Constitutional legislation of colonial vintage is
a drastic law, being expropriatory in nature as it confers on the State a power
which affects person's property right. Even though right to property is no longer
fundamental and was never a natural right, and is acquired on a concession by the
State, it has to be accepted that without right to some property, other rights become
illusory. This Court is considering these questions, especially, in the context
of some recent trends in land acquisition. This Court is of the opinion that the
concept of public purpose in land acquisition has to be viewed from an angle which
is consistent with the concept of a welfare State.
16.
The
concept of public purpose cannot remain static for all time to come. The concept,
even though sought to be defined under Section 3(f) of the Act, is not capable
of any precise definition. The said definition, having suffered several amendments,
has assumed the character of an inclusive one. It must be accepted that in construing
public purpose, a broad and overall view has to be taken and the focus must be on
ensuring maximum benefit to the largest number of people. Any attempt by the State
to acquire land by promoting a public purpose to benefit a particular group of people
or to serve any particular interest at the cost of the interest of a large section
of people especially of the common people defeats the very concept of public purpose.
Even though the concept of public purpose was introduced by pre- Constitutional
legislation, its application must be consistent with the constitutional ethos and
especially the chapter under Fundamental Rights and also the Directive Principles.
17.
In
construing the concept of public purpose, the mandate of Article 13 of the Constitution
that any pre-constitutional law cannot in any way take away or abridge rights conferred
under Part-III must be kept in mind. By judicial interpretation the contents of
these Part III rights are constantly expanded. The meaning of public purpose in
acquisition of land must be judged on the touchstone of this expanded view of Part-III
rights. The open-ended nature of our Constitution needs a harmonious reconciliation
between various competing principles and the overhanging shadows of socio-economic
reality in this country.
18.
Therefore,
the concept of public purpose on this broad horizon must also be read into the provisions
of emergency power under Section 17 with the consequential dispensation of right
of hearing under Section 5A of the said Act. The Courts must examine these
questions very carefully when little Indians lose their small property in the name
of mindless acquisition at the instance of the State. If public purpose can be satisfied
by not rendering common man homeless and by exploring other avenues of acquisition,
the Courts, before sanctioning an acquisition, must in exercise of its power of
judicial review, focus its attention on the concept of social and economic justice.
While examining these questions of public importance, the Courts, especially the
Higher Courts, cannot afford to act as mere umpires. In this context we reiterate
the principle laid down by this Court in Authorised Officer,
19.
Thanjavur
and another vs. S. Naganatha Ayyar and others reported in (1979) 3 SCC 466, wherein
this Court held:"......It is true that Judges are constitutional invigilators
and statutory interpreters; but they are also responsive and responsible to Part
IV of the Constitution being one of the trinity of the nation's appointed instrumentalities
in the transformation of the socio-economic order. The judiciary, in its
sphere, shares the revolutionary purpose of the constitutional order, and when
called upon to decode social legislation must be animated by a goal-oriented
approach. This is part of the dynamics of statutory interpretation in the developing
countries so that courts are not converted into rescue shelters for those who
seek to defeat agrarian justice by cute transactions of many manifestations now
so familiar in the country and illustrated by the several cases under appeal. This
caveat has become necessary because the judiciary is not a mere umpire, as some
assume, but an activist catalyst in the constitutional scheme." In other words
public purpose must be viewed through the prism of Constitutional values as
stated above.
20.
The
aforesaid principles in our jurisprudence compel this Court to construe any expropriartory
legislation like the Land Acquisition Act very strictly.
21.
The
judicial pronouncements on this aspect are numerous, only a few of them may be noted
here.
22.
In
DLF Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana and
Ors. - (2003) 5 SCC 622, this Court construed the statute on Town Planning Law and
held "Expropriatory statute, as is well known, must be strictly construed."
(See para 41 page 635).
23.
The
same principle has been reiterated subsequently by a three-Judge Bench of this Court
in State of Maharashtra and Anr. vs. B.E. Billimoria and Ors. - (2003) 7 SCC
336 in the context of ceiling law. (See para 22 at page 347 of the report).
24.
These
principles again found support in the decision of this Court in Chairman, Indore
Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Ltd. and Ors. - (2007)
8 SCC 705, wherein this Court construed the status of a person's right to property
after deletion of Article 19(1)(f) from Part III. By referring to various international
covenants, namely, the Declaration of Human and Civic Rights, this Court held that
even though right to property has ceased to be a fundamental right but it would
however be given an express recognition as a legal right and also as a human
right .
25.
While
discussing the ambit and extent of property right, this Court reiterated that expropriatory
legislation must be given strict construction. (See para 53 to 57 at pages 731
to 732 of the report)
26.
In
the background of the aforesaid discussion, this Court proceeds to examine the
scope of a person's right under Section 5A of the Act.
27.
Initially,
Section 5A was not there in the Land Acquisition Act, 1894 but the same was inserted
long ago by the Land Acquisition (Amendment) Act, 1923 vide Section 3 of Act 38
of 1923.
28.
The
history behind insertion of Section 5A, in the Act of 1894 seems to be a decision
of the Division Bench of Calcutta High Court in J.E.D. Ezra vs. The Secretary of
State for India and ors reported in 7 C. W. N. 249. In that case, the properties
of Ezra were sought to be acquired under the pre amended provision of the Act for
expansion of the offices of the Bank of Bengal. In challenging the said acquisition,
it was argued that the person whose property is going to be taken away should be
allowed a hearing on the principles of natural justice. However the judges found
that there was no such provision in the Act. (see p. 269)
29.
In
order to remedy this shortcoming in the Act of 1894, an amendment by way of incorporation
of Section 5A was introduced on 11th July, 1923. The Statement of Objects and Reasons
for the said Amendment is as follows: "The Land Acquisition Act I of 1894 does
not provide that persons having an interest in land which it is proposed to acquire,
shall have the right of objecting to such acquisition; nor is Government bound to
enquire into and consider any objections that may reach them. The object of this
Bill is to provide that a Local Government shall not declare, under section 6 of
the Act, that any land is needed for a public purpose unless time has been allowed
after the notification under section 4 for persons interested in the land to
put in objections and for such objections to be considered by the Local Government."
(Gazette of India, Pt. V, dated 14th July, 1923, page 260)
30.
The
said amendment was assented to by the Governor General on 5th August, 1923 and came
into force on 1st January, 1924.
31.
The
importance and scheme of Section 5A was construed by this Court in several cases.
As early as in 1964, this Court in Nandeshwar Prasad and Ors. vs. U.P. Government
and Ors. Etc. - AIR 1964 SC 1217 speaking through Justice K.N. Wanchoo (as His Lordship
then was) held "...The right to file objections under Section 5A is a substantial
right when a person's property is being threatened with acquisition and we cannot
accept that that right can be taken away as if by a side-wind....." In that
case the Court was considering the importance of rights under Section 5A vis-`-vis
Section 17(1) and Section 17(1)(A) of the Act. (See para 13 at page 1222 of the
report).
32.
The
same view has been reiterated by another three-Judge Bench decision of this Court
in Munshi Singh and Ors. vs. Union of India - (1973) 2 SCC 337. In para 7 of
the report this Court held that Section 5A embodies a very just and wholesome principle
of giving proper and reasonable opportunity to a land loser of persuading the authorities
that his property should not be acquired. This Court made it clear that declaration
under Section 6 has to be made only after the appropriate Government is satisfied
on a consideration of the report made by the Collector under Section 5A. The Court,
however, made it clear that only in a case of real urgency the provision of Section
5A can be dispensed with (See para 7 page 342 of the report).
33.
In
Hindustan Petroleum Corporation Limited vs. Darius Shahpur Chennai and ors.,
(2005) 7 SCC 627, this Court held that the right which is conferred under Section
5A has to be read considering the provisions of Article 300-A of the Constitution
and, so construed, the right under Section 5A should be interpreted as being akin
to a Fundamental Right. This Court held that the same being the legal position,
the procedures which have been laid down for depriving a person of the said right
must be strictly complied with.
34.
In
a recent judgment of this Court in Essco Fabs (supra), (2009) 2 SCC 377, this
Court, after considering previous judgments as also the provisions of Section 17
of the Act held: "41. Whereas sub-section (1) of Section 17 deals with cases
of "urgency", sub-section (2) of the said section covers cases of "sudden
change in the channel of any navigable river or other unforeseen emergency".
But even in such cases i.e. cases of "urgency" or "unforeseen emergency",
enquiry contemplated by Section 5-A cannot ipso facto be dispensed with which is
clear from sub-section (4) of Section 17 of the Act."
35.
This
Court, therefore, held that once a case is covered under sub-section (1) or (2)
of Section 17, sub-section (4) of Section 17 would not necessarily apply. "54.
In our opinion, therefore, the contention of learned counsel for the respondent
authorities is not well founded and cannot be upheld that once a case is covered
by sub- sections (1) or (2) of Section 17 of the Act, sub-section (4) of Section
17 would necessarily apply and there is no question of holding inquiry or
hearing objections under Section 5-A of the Act. Acceptance of such contention or
upholding of this argument will make sub- section (4) of Section 17 totally otiose,
redundant and nugatory."
36.
This
Court also held that in view of the ratio in Union of India vs. Mukesh Hans, (2004)
8 SCC 14, sub-section (4) of Section 17 cannot be pressed into service by officers
who are negligent and lethargic in initiating acquisition proceedings.
37.
The
question is whether in the admitted facts of this case, invoking the urgency clause
under Section 17 (4) is justified. In the writ petition before the High Court, the
petitioners have given the details of the land holding, and it has also been stated
that the entire holding of petitioners 2, 5, 7, 9, 10, 11 and 13 have been acquired,
and as a result of such acquisition, the petitioners have become landless. From
the various facts disclosed in the said affidavit it appears that the matter was
initiated by the Government's letter dated 4th of June, 2008 for issuance of Section
4(1) and Section 17 notifications. A meeting for selection of the suitable site
for construction was held on 27th June, 2008, and the proposal for such acquisition
and construction was sent to the Director, Land Acquisition on 2nd of July, 2008.
This was in turn forwarded to the State Government by the Director on 22nd of July,
2008. After due consideration of the forwarded proposal and documents, the
State Government issued the Section 4 notification, along with Section 17
notification on 21st of August, 2008. These notifications were published in local
newspapers on 24th of September, 2008. Thereafter, over a period of 9 months, the
State Government deposited 10% of compensation payable to the landowners, along
with 10% of acquisition expenses and 70% of cost of acquisition was deposited, and
the proposal for issuance of Section 6 declaration was sent to the Director, Land
Acquisition on 19th of June, 2009. The Director in turn forwarded all these to
the State Government on 17th July, 2009, and the State Government finally
issued the Section 6 declaration on 10th of August, 2009. This declaration was published
in the local dailies on 17th of August, 2009.
38.
Thus
the time which elapsed between publication of Section 4(1) and Section 17 notifications,
and Section 6 declaration, in the local newspapers is of 11 months and 23 days,
i.e. almost one year. This slow pace at which the government machinery had
functioned in processing the acquisition, clearly evinces that there was no urgency
for acquiring the land so as to warrant invoking Section 17 (4) of the Act.
39.
In
paragraph 15 of the writ petition, it has been clearly stated that there was a time
gap of more than 11 months between Section 4 and Section 6 notifications, which
demonstrates that there was no urgency in the State action which could deny the
petitioners their right under Section 5A. In the counter which was filed in this
case by the State before the High Court, it was not disputed that the time gap between
Section 4 notification read with Section 17, and Section 6 notification was
about 11 months.
40.
The
construction of jail is certainly in public interest and for such construction land
may be acquired. But such acquisition can be made only by strictly following the
mandate of the said Act. In the facts of this case, such acquisition cannot be made
by invoking emergency provisions of Section 17. If so advised, Government can initiate
acquisition proceeding by following the provision of Section 5A of the Act and in
accordance with law.
41.
For
the reasons aforesaid, we hold that the State Government was not justified, in the
facts of this case, to invoke the emergency provision of Section 17(4) of the Act.
The valuable right of the appellants under Section 5A of the Act cannot flattened
and steamrolled on the `ipsi dixit' of the executive authority. The impugned notifications
under Sections 4 and 6 of the Act in so far as they relate to the appellants' land
are quashed. The possession of the appellants in respect of their land cannot
be interfered with except in accordance with law.
42.
The
appeals are allowed. No order as to costs.
.......................J.
(G.S. SINGHVI)
.......................J.
(ASOK KUMAR GANGULY)
New
Delhi
March
07, 2011 27
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