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TMI Blog2011 (2) TMI 1601X X X X Extracts X X X X X X X X Extracts X X X X ..... ) for requisition of the premises. 3. 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 Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was pleaded that the purpose of acquisition was not such which could justify dispensing with the inquiry envisaged under Section 5A. 7. 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt judgment in Anand Singh and anr v. State of Uttar Pradesh and Ors. (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 5A of the Act. 10. 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 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 dispen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 5A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under Section 5A 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 5A 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 5A of the Act. There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 5A 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 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 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 5A 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew 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. (emphasis supplied) 13. 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 5A of the Act. The time gap of 3 years between the quashing of first notification and issue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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