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TMI Blog2010 (7) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittee 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances, 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 recomme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (1967) 1 SCR 373, this Court observed that the opinion of the government formed under Section 17(4) of the Act can be challenged as ultra vires 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. (1971) 1 SCC 671 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings under Section 5A 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 5A which has to be considered. 39. Section 17(2) deals with a case in which an enquiry under Section 5A 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 5A 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 5A 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 5A 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 (1A) 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(1A) 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 (1A) 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 Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 5A 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 5A 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 5A for acquiring housing accommodation for planned development of Meerut, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoking urgency clause and to dispense with inquiry under Section 5A 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 5A of the Act. Although 30 days from the notification under Section 4(1) are given for filing objections under Section 5A, 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 5A 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 5A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy 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 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 5A pursuant to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquisition 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 5A 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 dispensing with Section 5A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5A 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 5A 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 5A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 5A 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 5A would still have to be followed before a notification under Section 6 is issued, though after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of representation and hearing contemplated under Section 5A 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 5A. 25. In Union of India and Ors. v. Krishan Lal Arneja and Ors. (2004) 8 SCC 453, 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 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 Gur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of such nature which could brook no delay whatsoever. In another case, viz.; Tika Ram and Ors. v. State of Uttar Pradesh and Ors. (2009) 10 SCC 689, 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 5A, 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 Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate (1977) 1 SCC 133. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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