Babu Ram & Anr vs State Of Haryana & Anr

State of Haryana & Anr. ... Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The appellants herein are residents of Narwana,

District Jind, in the State of Haryana and claim to

be the owners of land measuring 34 Kanals 2 Marlas

situated at Jind Patiala Road near the Railway

Crossing, Narwana, adjoining the New Grain Market

at Narwana. Subsequent to the acquisition of 2

certain lands in the said area in 1995, the State

of Haryana issued another Notification dated 23rd

November, 2005, bearing No.12/8/05-PH 1, under

Section 4 read with Section 17(2)(c) of the Land

Acquisition Act, 1894 (hereinafter referred to as

the "L.A. Act"), for construction of a Sewage

Treatment Plant. In the said Notification, it was

indicated that the land was required on an urgent

basis within the meaning of Sub-Section (4) of

Section 17 of the L.A. Act, thereby excluding the

application of Section 5-A of the said Act.

According to appellants while invoking the emergent

provisions under Section 17 of the aforesaid Act,

no reason was indicated to exclude the operation of

Section 5-A of the Act. The said Notification under

Section 4 was followed by another Notification

dated 2nd January, 2006 under Section 6 of the L.A.

Act. In the said Notification it also was made

clear that the Land Acquisition Collector-cum-

District Revenue Officer, Jind, Haryana proposed to 3

take possession of the land in question as the land

was to be acquired urgently.

3. Aggrieved by the decision of the State

Government to acquire the land for construction of

the Sewage Treatment Plant, the Mitaso Educational

Society Narwana, filed a suit against the State of

Haryana to restrain the defendant therein,

including the State of Haryana from constructing

the Sewage Treatment Plant in front of the school

and on 15th February, 2006, an interim order was

passed in the suit restraining the defendants from

constructing the said Plant as the same was likely

to be a health-hazard for the inhabitants of the

locality. In yet another civil suit filed by one

Jagroop against the State of Haryana, the

Additional Civil Judge, Senior Division, Narwana,

restrained the defendants by its order dated 12th

April, 2006 from constructing the Sewage Treatment

Plant.

4

4. Having been denied the opportunity of filing an

objection under Section 5-A of the L.A. Act, the

appellants also filed a writ petition in the Punjab

& Haryana High Court challenging the two

Notifications under Sections 4 and 6 of the L.A.

Act on several grounds. One of the grounds taken

was that the lands in question could not be used

for the installation of a Sewage Treatment Plant

owing to its close proximity to the residential

colony, the New Grain Market and a school in the

adjoining plots. Furthermore, an earlier

Notification issued under Sections 4 and 6 of the

L.A. Act in the year 1995 had also been challenged

in Civil Writ Petition No.1222 of 1997 before the

High Court, wherein an order of status quo was

passed on 28th January, 1997. It has been submitted

that the said writ petition is still pending

disposal in the said High Court. In the subsequent

writ petition out of which this appeal arises, the 5

appellants herein, inter alia, prayed for quashing

of the two Notifications dated 23rd November, 2005

and 2nd January, 2006 issued under Section 4 read

with Clause (c) of Sub-Section (2) of Section 17

and Section 6 of the L.A. Act, 1894 on the ground

that the same were arbitrary and contrary to the

provisions of the Act. A prayer was also made for

a writ in the nature of Mandamus to direct the

respondents in the writ petition not to dispossess

the appellants herein from the land in question.

5. The writ petition was taken up for hearing on

14th February, 2008. Negating the contention of the

appellants/writ petitioners that they had been

wrongly deprived of their right to file an

objection to the proposed acquisition of their

lands under Section 5-A of the L.A. Act, the Writ

Court came to the conclusion that the provisions of

Section 4 read with Section 17 had been religiously

observed and followed by the Notification under 6 Section 6, pursuant to which Award was announced on

23rd May, 2006.

6. While dismissing the writ petition, the High

Court sought to distinguish the decision of this

Court in Union of India vs. Mukesh Hans [(2004) 8

SCC 14], which had been cited on behalf of the writ

petitioners/appellants herein in support of their

contention that the right given to a land owner or

person interested in the land was not an empty

formality but a substantive right which could not

be taken away, except for good and valid reason

within the limitations prescribed under Section

17(4) of the L.A. Act, 1894. In the said decision,

this Court had pointed out that mere existence of

an urgency or unforeseen emergency was not

sufficient in itself to dispense with the

provisions of Section 5-A of the aforesaid Act.

The said right could be dispensed with only after

the appropriate Government forms an opinion that 7

along with the existence of urgency under Section

17(1) or unforeseen emergency under Section 17(2),

there was also a need to dispense with the

provisions of Section 5-A.

7. The Special Leave Petition (now Civil Appeal)

has been filed by the appellants questioning the

dismissal of their writ petition.

8. Appearing in support of the appeal, learned

Senior Advocate Mr. Pradip Ghosh, submitted that

the present acquisition proceeding was the second

phase of acquisition of land purportedly for the

purpose of setting up a Sewage Treatment Plant

(STP). He submitted that similar Notifications

under Sections 4 and 6 of the L.A. Act, 1894 had

been published in 1995-96 for acquisition of land,

measuring 42 acres, 2 kanals, 8.75 marlas,

belonging to the appellants and adjoining the lands

now sought to be acquired under the Notification

dated 23rd November, 2005 issued under Section 4 8

read with Sections 17(2)(c) and 17(4) of the

aforesaid Act, for the selfsame purpose.

9. As will be evident from the aforesaid

Notification, the provisions of Section 5-A were

dispensed with. Thereafter, on 2nd January, 2006, a

Notification under Section 6 of the Act was issued

indicating the intention of the Respondent No.2 to

take possession of the land immediately. The said

Notification was followed by a Notification under

Section 9 dated 5th May, 2006 mentioning that the

Award of the acquisition would be pronounced on 23rd

May, 2006. Mr. Ghosh submitted that in view of the

said Notification under Section 9 of the above Act,

the appellants were advised to file a suit before

the Civil Judge (Senior Division), Narwana, to

restrain the respondents from constructing a STP as

the same would be a health hazard for the

inhabitants of the locality. Such suit was filed

on 15th February, 2006. Subsequently, another suit 9

for the same reliefs was filed by one Jagroop on

12th April, 2006, before the learned Additional

District Judge (Senior Division), Narwana, who was

pleased to restrain the respondents from

constructing the STP. In addition to the above,

the appellants filed Writ Petition CWP No.8332 of

2006 before the Punjab and Haryana High Court,

praying for quashing of the Notification dated 23rd

November, 2005 and for restraining the respondents

from dispossessing the writ petitioners. It is out

of the final disposal of the said writ petition

that the present appeal has arisen.

10. Initially, the High Court directed the parties

to maintain status quo with regard to the writ

petitioners' lands. Subsequently, as indicated

hereinabove, the writ petition was dismissed on 14th

April, 2008.

1

11. Mr. Ghosh submitted that no urgency of such

compelling nature had been disclosed by the

respondents that warranted the invoking of Section

17(4) of the L.A. Act, 1894. On the other hand, by

denying the appellants the opportunity of filing

objections under Section 5-A of the L.A. Act, 1894,

the respondents had tried to play down the fact

that the STP was being constructed next to a school

and grain market which would prove to be a health-

hazard, not only for the students of the school,

but for the inhabitants of the area in general.

12. In addition, Mr. Ghosh also submitted that in

the plan which had been prepared by the Town

Planning Department, it had been shown that the

lands to be acquired were to be used for

residential and commercial purposes and another

plot had been earmarked for the Sewage Treatment

Plant. The change of user and the setting up of a

STP would severely prejudice the local inhabitants. 1

13. In support of his submissions that certain

parameters have to be followed by the acquiring

authorities for the purpose of invoking the

provisions of Section 17(4) of the L.A. Act, Mr.

Ghosh firstly referred to the decision of this

Court in Union of India vs. Krishan Lal Arneja

[(2004) 8 SCC 453), wherein while dealing with a

similar situation, this Court observed as follows :-

"16. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly 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. A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a 1

minimum period within which the objections could be received from the landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility.

Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration."

Referring to two other decisions of this Court

in (1) State of Punjab vs. Gurdial Singh [(1980) 2

SCC 471]; and (2) Om Prakash vs. State of U.P.

[(1998) 6 SCC 1], this Court also observed that it

was fundamental that compulsory taking of a man's

property is a serious matter and the smaller the 1

man the more serious the matter. In fact, in Om

Prakash's case (supra), this Court went one step

further in observing that according to the decision

in Gurdial Singh's case (supra), enquiry under

Section 5-A is not merely statutory, but also has a

flavour of fundamental rights under Articles 14 and

19 of the Constitution.

14. Various other decisions in the same vein were

cited by Mr. Ghosh which only go to reiterate the

propositions laid down in the above-mentioned

cases.

15. It was lastly submitted by Mr. Ghosh that in

the Written Statement filed on behalf of the

respondents herein before the Punjab & Haryana High

Court in the Writ Petition filed by the appellants,

nothing has been disclosed with regard to urgency

which prompted the said respondents to take

recourse to the provisions of Section 17(4) of the

L.A. Act, 1894. On the other hand, in paragraph 6 1

of the said Written Statement it has been sought to

be mentioned that if the appellants herein had any

grievance with regard to the impugned Notification

under Section 4, it was the duty of the appellants

to have filed objections. It was further stated

that having failed to file objections, the

appellants had waived their right since the

respondents had never denied the appellants their

right to file objections. Mr. Ghosh submitted that

such a stand clearly reveals the non-application of

mind by the concerned authorities since invocation

of Section 17(4) of the L.A. Act prevented the

appellants from filing objections. Mr. Ghosh

submitted that the respondents ought not to have

dealt with the matter in such a perfunctory manner

since the appellants had no other forum to

vindicate their grievances relating to the

compulsory acquisition of their lands. 1

16. Appearing for the State of Haryana, Mr. Manoj

Swarup, learned Advocate, denied the allegations of

malafides made on behalf of the appellants and

contended that it was, in fact, the appellants who

were guilty of having suppressed the extremely

relevant fact that they had filed a Civil Suit in

respect of the self-same cause of action in the

Court of the Additional Civil Judge (Senior

Division), Narwana, in which they had prayed for a

decree of permanent injunction to restrain the

respondents herein from constructing the STP in any

direction near the school run by the appellants in

the name and style of `Chaudhary Devi Lal Memorial

Public School, Uklana Road, Narwana. Mr. Swarup

submitted that although the Written Statement filed

on behalf of the Respondent Nos.1 and 2 had been

amended, the same was not placed on the record and

only the unamended Written Statement was filed.

Mr. Swarup then contented that, in fact, the

Written Statement had never been amended, but an 1

Additional Written Statement had been filed on

account of amendment effected to the writ petition.

From paragraph 6 of the Additional Written

Statement, Mr. Swarup pointed out that not one but

three STPs were planned at different locations at

Narwana for which three different sites had been

acquired. The STP forming the subject matter of

the present appeal is, in effect, only one of them.

The decision to set up such a STP was the result of

accumulation of sewage water which had the ultimate

effect of polluting the ground water. It was

submitted that the site in question for the

construction of the STP had been selected after a

thorough survey of the area in which the land in

question was found to be most suitable. Mr. Swarup

urged that the decision to set up STPs in Narwana

was in response to a public demand for the laying

down of a Sewage Treatment Plant since the local

inhabitants were facing great difficulty in dealing

with the accumulation of sewage water. It was 1

submitted that the interests of a few as

represented by the appellants, would have to give

way to the larger public interest to benefit the

entire population of the area.

17. It was also submitted by Mr. Swarup that the

suit in question had been withdrawn after

objections had been taken by the respondents, but

no liberty had been asked for or taken for

commencing a fresh proceeding on the same cause of

action. Mr. Swarup also questioned the locus

standi of the school to file a suit in respect of

the land belonging to the appellants.

18. In conclusion, Mr. Swarup referred to the

decision of this Court in Municipal Council,

Ahmednagar vs. Shah Hyder Beig & Ors. [(2000) 2

SCC 48], which dealt with the question of delay in

challenging the notice issued under the Land

Acquisition Act, 1894. In the said decision, this

Court held that long after the Award had been 1

passed in the L.A. proceedings and compensation had

been made over to the Requiring Authority, a writ

petition challenging the notices issued under

Sections 4 and 6 of the L.A. Act was not

maintainable. Mr. Swarup urged that in the facts

and circumstances of the case, no interference was

called for with the decision of the High Court.

19. From the submissions advanced on behalf of the

parties and the materials on record, two points

emerge for decision in the instant appeal. The

first point to be considered is whether the

provisions of Section 17(4) of the L.A. Act, 1894,

had been validly invoked by the respondents for the

purpose of acquiring the lands in question for the

Sewage Treatment Plant. The other point which is

linked with the first point is whether the choice

of site for setting up the STP would prove to be

hazardous for the inhabitants of Narwana. 1

20. If an opportunity had been given to file

objections to the proposed acquisition, the second

question would have been resolved while deciding

the objections under Section 5-A of the L.A. Act,

1894. Unfortunately, the provisions of Section

17(4) were invoked in relation to a project which

could have serious consequences to the health of

the general public of the area. Although, it has

been urged on behalf of the respondents that the

decision to set up the three Sewage Treatment

Plants at Narwana was in response to a public

demand to install sewage drains and the present

site had been chosen to be the most suitable for a

STP, it has not been denied that the proposed STP

is to be situated in the vicinity of a school and

grain market which are both hubs of community

activities.

21. In the present case, we are not concerned with

technicalities but the likelihood of a health- 2

hazard to the inhabitants of the area if the STP

was set up in the acquired site. The stand taken

by the respondent that the appellants could have

filed objections to the proposed acquisition is

difficult to appreciate since the right to file

such objections had, in fact, been taken away by

invoking the provisions of Section 17(4) of the

L.A. Act. Such a stand taken on behalf of the

respondent authorities only serve to strengthen the

case of the appellants that an opportunity should

have been given to them to file objections to the

proposed acquisition. As indicated hereinabove in

the various cases cited by Mr. Pradip Ghosh and, in

particular, the decision in Krishan Lal Arneja's

case (supra), in which reference has been made to

the observations made by this Court in Om Prakash's

case (supra), it has been emphasized that a right

under Section 5-A is not merely statutory but also

has the flavour of fundamental rights under

Articles 14 and 19 of the Constitution. Such 2

observations had been made in reference to an

observation made in the earlier decision in Gurdial

Singh's case (supra) and keeping in mind the fact

that right to property was no longer a fundamental

right, an observation was made that even if the

right to property was no longer a fundamental

right, the observations relating to Article 14

would continue to apply in full force with regard

to Section 5-A of the L.A. Act.

22. The observations made both in Gurdial Singh's

case (supra) and in Om Prakash's case (supra)

assign a great deal of importance to the right of a

citizen to file objections under Section 5-A of the

L.A. Act when his lands are being taken over under

the provisions of the said Act. That in the said

decisions, 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

authorities before resorting to Section 17(4) of 2

the L.A. Act. and that they had to satisfy

themselves that there was an urgency of such nature

as indicated in Section 17(2) of the Act, which

could brook no delay whatsoever.

23. Since Section 5-A of the L.A. Act had been

dispensed with, the stage under Section 9 was

arrived at within six months from the date of the

notice issued under Section 4 and 17(2)(c) of the

L.A. Act. While such notice was issued on 23rd

November, 2005, the Award under Section 11 was made

on 23rd May, 2006. During this period, the

appellants filed a suit, and, thereafter, withdrew

the same and filed a writ petition in an attempt to

protect their constitutional right to the property.

It cannot, therefore, be said that there was either

any negligence or lapse or delay on the part of the

appellants.

24. The only other aspect of the matter which

requires consideration is whether the lands in 2

question have already been utilized for the Sewage

Treatment Plant. From the averments made and

photographs which were brought to our notice, it

appears that the site is still lying unutilized.

In such circumstances, we consider it only proper

that the appellants should get an opportunity to

file their objections to the proposed acquisition

under Section 5-A of the L.A. Act and the

respondents would be at liberty to take

consequential steps after disposal of the same.

25. We, accordingly, dispose of the appeal by

directing that notwithstanding the invocation of

Section 17(2)(c) of the L.A. Act in its application

to the States of Punjab and Haryana, the appellants

will be at liberty to file objections under Section

5-A of the L.A. Act within a month from the date

before the concerned authority, who will,

thereafter, dispose of the same upon giving the 2

objectors, if any, an opportunity of hearing and

placing their respective cases.

26. The learned Advocate for the appellants is

directed to communicate this order to the L.A.

Collector-cum-District Revenue Officer, Jind,

Haryana, within a week from date.

27. There will be no order as to costs.

................................................J. (ALTAMAS KABIR)

...................................................J. (CYRIAC JOSEPH) New Delhi Dated : 07.10.2009