Darshan Lal Nagpal & Ors vs Govt.Of Nct Of Delhi & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11169 OF 2011

Darshan Lal Nagpal (dead) by L.Rs. ... Appellants

versus

Government of NCT of Delhi and others ... Respondents

J U D G M E N T

G. S. Singhvi, J.

1. The questions which arise for consideration in this appeal are whether the

Government of NCT of Delhi could have invoked Section 17(1) and (4)

of the Land Acquisition Act, 1894 (for short, `the Act') and dispensed

with the rule of hearing embodied in Section 5A(2) thereof for the

purpose of acquiring land measuring 80 bighas 15 biswas including 21

bighas 3 biswas belonging to the appellants for a public purpose, namely,

establishment of electric sub-station by Delhi Transco Limited (for short,

`DTL') at village Mandoli and whether the Division Bench of the Delhi

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High Court had rightly negatived the appellants' challenge to the

acquisition of their land.

2. For deciding the aforesaid questions, it will be useful to notice the events

which led to the issue of notification dated 13.10.2009 under Section 4(1)

read with Section 17(1) and (4) of the Act and declaration dated

9.11.2009 under Section 6(1) of the Act.

2.1 It is not clear from the pleadings of the parties and the record produced

before the High Court and this Court as to when the decision was taken to

establish 400/220 KV sub-station at East of Loni Road but this much is evident

that by a communication sent in August, 2004, the DTL requested the Delhi

Development Authority (for short, `the DDA') for allotment of land. For the

next about 10 months nothing appears to have happened. Between June and

October, 2005 different functionaries of DTL made some correspondence inter-

se in the matter of establishment of the sub-station. On 5/6.12.2005, Manager

(400/220 KV SS&L) sent a communication to the Commissioner (Planning),

DDA wherein he emphasized that establishment of the sub-station was

necessary to meet the power demand of East Delhi and particularly the

upcoming Commonwealth Games. In his reply dated 8.2.2006, Joint Director

(MP), DDA informed the DTL that allotment of sites suggested by it is not

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feasible because site `A' was developed as a park and site `B' was earmarked as

a community centre.

2.2 Between January, 2006 and July, 2008, the officers of the DTL, the DDA

and the Government of N.C.T. of Delhi exchanged letters on the issue of

allotment of land for the sub-station. While the officers of DTL stressed the

need for early allotment of land, the officers of the DDA repeatedly expressed

their inability to allot the particular site by pointing out that the same was

reserved for other purpose. On 28.07.2008, Secretary (Power), Government of

NCT of Delhi-cum-CMD, DTL requested the DDA to change the land use of

the particular site and inform the Government of N.C.T. of Delhi so that action

could be taken for the acquisition of land under Section 17 of the Act. In that

letter, it was also mentioned that due to paucity of land, the DTL has proposed

to establish a GIS indoor type sub-station which could be accommodated in a

space of about 200 x 125 meters as against the original requirement of 700 x

500 meters. The relevant portions of that letter are extracted below:

"In pursuance of above, a meeting was held with Vice-

Chairman, DDA on 06.05.2008 wherein a request was made

for the allotment of land in East Delhi. Officers of Delhi

Transco Limited, State Transmission Utility, along with

Officers of DDA and the concerned ADM of the area had

identified the land in their joint inspection held on 30th June,

2008. Copy of Khasra Nos. and their Report is enclosed as

Annexure-I. However, in the meantime DDA informed that

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the land in question is not acquired by DDA. It was further

informed that as per Master Plan, Agriculture/Green area

can be utilized for Utilities. Copy of the letter No.

F.6(4)2004/MP/D-127 dated 19.5.2008 is enclosed as

Annexure-II. Since the establishment of the Grid Station is

of paramount importance for strengthening the power supply

in East Delhi, DDA is requested to change the land use and

to inform GNCTD so that action be taken for acquisition of

the same under Section 17, i.e., for the public utility.

Earlier it was proposed to construct an outdoor 400/200 KV

Grid Station but keeping in view the paucity and availability

of land DTL has now proposed to establish a GIS indoor

type sub-station which could be accommodated in a space of

about 200 x 125 meters. It shall be appreciated if appropriate

directions are issued to the concerned officers for doing the

needful expeditiously."

(underlining is ours)

2.3 After about one month, Joint Secretary (Power) sent communication

dated 9.9.2008 to the Principal Secretary, Land and Building Department with

the request that action may be initiated for the acquisition of the identified piece

of land by invoking Section 17 of the Act. The relevant portions of that letter

are extracted below:

"Hon'ble Prime Minister of India has laid the foundation

for 1500 KV gas based power plant at Bawana on

24.03.2008 being constructed by Pragati Power

Corporation Limited, a company owned by Govt, of NCT

of Delhi in order to evacuate and utilize the generation

from this plant for the benefit of Delhi, a study was

conducted by Central Electricity Authority which has

recommended the establishment of a 220 KV substation

in East Delhi for evacuation of power.

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Officers of Delhi Transco Limited along with officers of

DDA and concerned ADM have identified the land

measuring 200 M x 150 M in East Delhi for the proposed

grid. Copy of Khasra Nos. and their report is enclosed at

Annexure-1. Sketch showing broad location of the plot

proposed to be acquired with Khasra Nos. of the

proposed location is at Annexure-II. DDA has informed

that the land in question is not acquired by DDA.

However, as per Master Plan 2021, public utilities are

permitted in all use zones. In this regard, a copy of

Director (Planning) DDA letter dated 19.05.2008 is

enclosed as Annexure-III. The proposed site has already

been taken up with VC, DDA for change of land use

(Annexure-IV).

The commissioning of 155 MW power plant at Bawana

is scheduled before the Commonwealth Games in

October-2010. Therefore, keeping in view the urgency

involved, kindly initiate the process for acquisition of

identified peace of land in East Delhi in favour of

Department of Power, GNCTD as provided under section

17 of the Land Acquisition Act at the very earliest."

(underlining is ours)

Soon thereafter, the Land and Building Department sent letter dated 30.9.2008

to Additional District Magistrate-cum-Land Acquisition Collector (North-East)

to send the following information/documents:

"1. Draft notification u/s 4, 6 and 17 along with the copy of Aks Sizra,

field book etc.

2. Report after conducting Joint Survey.

3. 80% estimated compensation amount with Calculation Sheet."

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2.4 After about six months, Deputy General Manager (Planning-I), DTL sent

letter dated 6.3.2009 to Deputy Secretary (Land Acquisition) and informed him

that land measuring 250 x 200 sq. mts. with approach road will be required to

accommodate the proposed three voltage level equipment as against the

requirement of 200 x 125 sq. mts. indicated in the earlier communications. The

concerned officer also requested that the acquisition of 80 bighas 15 biswas

land may be finalized as per the joint site inspection carried out on 12.01.2009.

2.5 On its part, the DDA sent letter dated 8.5.2009 to the Deputy Secretary

(Land Acquisition) that a joint site inspection be carried out for finalization of

the site. However, the latter sent communication dated 16.6.2009 to the DDA

to issue NOC required for initiation of the acquisition proceedings.

2.6 In September, 2009, the Land and Building Department of the

Government of NCT of Delhi prepared proposal for the acquisition of land

measuring 200 x 125 sq. mts. by invoking Sections 4 and 6 read with Section

17(1) and (4) of the Act. This is evident from the notings recorded in

paragraphs 56 to 61 and 63 to 65 of file bearing No. F.S(11)/08/L&B/LA,

which are extracted below:

"56. A requisition was received from Joint Secretary (Power)

Department of Power for acquisition of land measuring 200 x

125 Sq. m. identified in East Delhi for construction of 400 x

200 KV grid station (Village Mandoli) vide their letter No.

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F.11(88)/2008/Power/2186 dated 09.09.2009 (P-6/C).

Accordingly, the ADM/LAC (NE) was requested for draft

notifications and other revenue records vide letter dated

30.09.2008 (P-7/C).

57. The ADM/LC (NE) vide his letter dated 31.01.2009 (P-

28/C) forwarded draft notification u/s 4 & 6 (P-26 & 27/C) for

acquisition of land measuring 80 Bigha 15 Biswa. Copy of Joint

Survey Report (P-23/C), copy of Field Book (P-20/C), copy of

Asks Sizra (P-19/C) and Calculation Sheet for estimated

compensation amount (P-25/C).

58. The revenue staff scrutinized the draft notification and

some discrepancies have been found. The report of revenue

branch may be seen at page (P-5 & 6/N).

59. Accordingly, LAC (NE) was requested for clarification

vide letter dated 2/3/09 (page-29/C). A clarification was given

by LAC (NE) in aforesaid context and may be seen at P-32 to

39/C. Report of revenue branch may be seen at page 11 &

12/N. Letter dated 30/7/08 and 6/3/09 received from Delhi

Transco Ltd. regarding change of proposal may be seen at P.30

and 31/C. Delhi Transco Ltd. has given the justification for the

change of proposal regarding requirement of land, i.e., 80

Bigha 15 Biswa instead of 200 x 125 Sq.m.

60. Vide letter No.F.6(4)2004-MP/265 dated 7/9/09 Jt.

Director (MP) DD has informed that DDA has no objection

with respect to proposed location of land for establishing

400/200 KV ESS subject to compliance of the following

conditions:-

a. Submission of a layout plan/location plan with

description of the land under reference be submitted to

ascertain the boundaries of the site.

b. Justification for an area of 6.8 hact. against 2.96 hact.

required for establishment of 200/400 KV ESS as per

MPD-2021 norms.

c. This is a Master Plan level utility for which change of

land use will be processed after land is acquired.

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d. Submission of transmission route alignment plan as the

surrounding area is thickly populated.

e. The site shall not be used for any other purpose other

than ESS.

61. As the matter is urgent and related to Commonwealth

Games, if approved Hon'ble L.G. may be requested to kindly

approve acquisition of land measuring 80 Bigha 15 Biswa as

per the draft notifications placed opposite for acquisition of

land for establishment of 400 x 200 KV sub-station in village-

Mandoli and issuance of notification u/s 4 read with 17(4) and

section 6 along with 17(1) of Land Acquisition Act, 1894.

63. May kindly see the proposal at page 21/N regarding

acquisition of land measuring 80 Bigha 15 Biswa for

construction of 400 x 200 KV grid station in village Mandoli.

The proposal has been received from Power Department, Govt.,

of NCT of Delhi, which is available at page 6/C. It has been

mentioned in the proposal that Hon'ble Prime Minister of India

has laid the foundation stone for 155 MW gas based power

plant at Bawana on 24-3-2008 which is being constructed by

Pragati Power Corporation Limited, a company owned by

Govt., of NCT of Delhi. It has been also mentioned in the

proposal that to evacuate and utilize the generation from this

plant for the benefit of Delhi, a study was conducted by Central

Electricity Authority which has recommended the

establishment of a 220 KV sub-station in East Delhi for

evacuation of power. The Power Department has requested that

the acquisition of the above said land may be proceeded with

under the emergency provisions of the Land Acquisition Act

because 1500 MW power at Bawana is scheduled to be

commissioned before the Commonwealth Games, 2010.

64. The Land Acquisition Collector (N/E) has prepared a

draft notification under section 4 & 6 (page 26 & 27/C) after

conduction the Joint survey report along with concerned

department and copy of the same is available at page 23/C

along with relevant records. As per the joint survey available at

page 22/C and 23/C it appears that entire land is laying vacant

except to Bhattas (Brick Kiln) and boundary walls in 3 Khasras.

9

The DDA has also provided no objection for acquisition subject

to certain conditions as mentioned in letter dated 07-09-09,

which is available at page 64/C.

65. From the proposal of the Power Department it is clear

that land is required for valid public purpose and urgent need

for acquisition of the land has also been justified by the Power

Department. Therefore, if approved, Hon'ble Lt. Governor may

kindly be requested to approve acquisition of land measuring 80

Bigha 15 Biswa as per the draft notification placed opposite for

the public purpose namely for establishing 400 x 200 KV grid

sub-station for Power Department in Village-Mandoli and

issuance of notification u/s 4 read with 17(4) and section 6

along with 17(1) of Land Acquisition Act, 1894."

2.7 The Lieutenant Governor of Delhi accorded his approval on 26.9.2009 in

the following terms:

"I have gone through the records and requirement of Delhi

Transco Ltd. for acquisition of land for Establishment of

400x200 kv station at village Mandoli and the draft

notifications prepared by LAC (North-East).

I am fully satisfied that the land measuring 80 Bigha 15 Biswa

is urgently required for above purpose. In view of the urgency

of the scheme, I order that the provisions of section 5A shall not

apply and notifications under section 4 read with 17(4), 6 &

17(1) of the Land Acquisition Act, 1894 be issued immediately.

Sd/-

Tejendra Khanna

Lt. Governor Delhi

26.09.2009."

3. In compliance of the direction given by the Lieutenant Governor, the

Government of N.C.T. of Delhi issued notification dated 13.10.2009

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under Section 4(1) read with Section 17(1) and (4) for the acquisition of

80 bighas 15 biswas land. The declaration issued under Section 6(1) was

published vide notification dated 9.11.2009. By another notification of

the same date, Land Acquisition Collector (North-East), Delhi was

authorised to take possession of the land on the expiry of 15 days.

4. When the appellants learnt about the proposed acquisition of their land,

they made a representation to the Member of the Legislative Assembly

that as per Master Plan of Delhi-2021 only 29.6 bigha land was required

for the sub-station and that barren land available in the area could be

utilized for that purpose leaving out their land. The concerned Member of

the Legislative Assembly forwarded the representation to the

Government of NCT of Delhi on 28.4.2009 but the same did not yield the

desired result and the notifications were issued under Section 4(1) read

with Section 17(1) and (4) and Section 6(1) of the Act. Thereupon, the

appellants filed Writ Petition No. 13376 of 2009 for quashing of

notifications dated 13.10.2009 and 9.11.2009. The main plank of their

challenge was that there was no urgency for the acquisition of land which

could justify invoking of Section 17(1) and (4) of the Act. They pleaded

that more than 4 years time spent in the correspondence exchanged

between the DTL, the State Government and the DDA clearly shows that

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there was no urgency in the establishment of the sub-station and the

cause put forward by the DTL in 2008-2009, namely, the requirement of

power for Commonwealth Games did not warrant invoking of Section

17(1) and (4) which resulted in depriving them of their property without

being heard. The appellants further pleaded that the Lieutenant Governor

had not applied mind on the issue of urgency and approved the proposal

prepared by the Land and Building Department, Government of NCT of

Delhi without satisfying himself that there was emergent need for the

acquisition of land for the purpose for which the proposal had been

initiated prior to August, 2004. The appellants also claimed that other

parcels of land including waste land belonging to the public authorities

and the Gaon Sabha were available, which could be utilized for

establishing the sub-station but, without examining the feasibility of

acquiring an alternative piece of land, the respondents arbitrarily

deprived them of their property.

5. In the counter affidavit filed on behalf of the Government of NCT of

Delhi and the Lieutenant Governor of Delhi it was averred that with a

view to provide power to the city of Delhi, 1500 MW gas based power

plant was being constructed at Bawana by a Government owned

company, viz., Pragati Power Corporation Limited; that the plant is

12

scheduled to be commissioned in a time-bound manner in October, 2010

before the commencement of the Commonwealth Games; that in order to

evacuate and utilize the power generated from the new plant for the

benefit of Delhi, the Central Electricity Authority recommended

establishment of 220 KV sub-station in East Delhi; that after identifying

the land in question the Power Department of Government of NCT of

Delhi made a request for initiation of the acquisition proceedings on

urgent basis; that on receipt of letter dated 9.9.2008, instructions were

issued to the Land Acquisition Collector to conduct a joint survey,

prepare a draft notification and also make calculation of 80 per cent of

the estimated compensation and that after taking all the necessary steps, a

note was put up before the Lieutenant Governor, who approved the

proposal for the acquisition of land under Section 4 read with Section

17(1) and (4) and also to dispense with the inquiry envisaged under

Section 5A of the Act. It was also pleaded that the beneficiary of the

acquisition deposited a sum of Rs.9,27,11,840/- towards 80 per cent of

the estimated compensation as required by Section 17(3A) of the Act,

which was remitted to the Land Acquisition Collector for payment. In

Para 11 of the counter affidavit it was averred that there is an urgent need

13

of the land for the purpose of construction of sub-station by the DTL in

the larger public interest.

6. In a separate written statement filed on behalf of the DTL it was pleaded

that decision was taken by the Government to establish 400 / 220 KV

grid sub-station to meet the growing demand of power in Delhi and the

establishment of the sub-station was approved by Delhi Electricity

Regulatory Commission vide order dated 16.6.2009. In paragraphs 5 to 7

of the counter affidavit of the DTL reference was made to the decision

taken by the Government to construct 1500 MW Pragati III Power Plant

at Bawana IPGCL; 2 x 490 MW Thermal Power Stations at Dadri and

1500 MW Thermal Station at Jhajjar and also to establish grid sub-

stations for evacuation of power from different plants. According to the

DTL, as per the Master Plan of Delhi-2021, the minimum land required

for establishment of a conventional outdoor 400/220/66 KV sub-station is

60 acres but because of scarcity of land, it was decided to establish an

indoor GIS sub-station and for that purpose 80 bighas land was required.

It was also the pleaded case of the DTL that the appellants' land was

identified after inspections carried out by the officers of the DDA, Land

and Building Department, Land Acquisition Collector, Government of

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NCT of Delhi and its own officers. In paragraphs 13, 14 and 15 of the

counter affidavit of the DTL, the following averments were made:

"13. That proposed 400KV sub-station cannot be

established in the 30 bighas of Gram Sabha land. The

said Gram Sabha land does not fulfill the complete

purpose of the answering respondent because 80 bighas

are required for the establishment of the proposed sub-

station. Further, the said Gram Sabha's land does not

give any entrance / exit point towards State Highway.

Therefore, the acquisition of the said Gram Sabha's land

does not serve any purpose.

14. That Delhi Electricity Regulatory Commission,

which is a statutory body of Govt. of NCT of Delhi vide

its letter No. F.17(51)/Engg./DERC/2009-10/1074 dated

16.6.2009 granted investment approval of scheme for

supply testing and commissioning of 400/220/66KV GIS

sub-station at East of Loni Road to the tune of Rs. 250.24

crores. The true copy of the letter dated 16.6.2009 is

marked and annexed as Annexure - E.

15. Further the Power Grid Corporation of India Ltd. vide

its letter dated 28.8.2009 addressed to the answering

respondent emphasized on the urgency regarding the

setting up and commission of the 400 KV sub-station

East of Loni Road since the transmission line is being

constructed for catering the additional load of

Commonwealth Games, 2010 from 2 x 490 MW, NTPC

Dadri Power Plant (under construction) and set the

timeline of completion by June, 2010. It was further

pointed out that location of Lone Road sub-station and

coordinates of 400 KV switch yard gantry were urgently

required for the completion of the survey work. the true

copy of the letter dated 28.8.2009 is marked and annexed

as Annexure - F. Therefore, it was a comprehensive

scheme consisting of establishment of 400/220KV grid

sub-station by the answering respondent whereas in feed

i.e. 400 KV transmission line from Dadri Generating

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Station upto the proposed grid sub-station at East of Loni

Road."

7. The Division Bench of the High Court noticed the correspondence

exchanged between the DTL, the DDA and the Government of NCT of

Delhi and proceeded to observe:

"The only argument made was that urgency was because of

ensuing Common Wealth Games and since those have already

concluded, the urgency as seized to exist. This is a myopic

view of the requirement for such a project. No doubt,

endeavour was to establish the sub-station before the

Commonwealth Games, 2010 but that was not the only reason

for urgency. The primary reason for urgency was, and

continuous to be, that the substation in East Delhi is needed to

evacuate and utilize the power generated from 1500 MW Gas

based Plant at Bawana which is being constructed. The

urgency was, and continuous to exist, i.e. the need for adequate

power supply to the residents of this city. This is an urgent

need keeping in view the wide gap between the demand and

supply. No doubt, the plans were to commission it before

Common Wealth Games. That has not happened also because

of the reason that stay was granted in these proceedings. Be as

it may, it cannot be argued that merely because Common

Wealth Games are over, the respondent authorities can now set

up the sub-station leisurely. These are the aspects which are to

be gone into by the Competent Authority while exercising

powers under Section 17 (4) of the Act. Once it is seen that all

relevant factors were taken into consideration and the

Competent Authority was not influenced by any irrelevant

consideration or the power exercised was not the result of

malafide, the subjective satisfaction of the Competent

Authority, based on those objective considerations namely the

purpose of invocation of urgency clause to acquire continued to

exist the Court would be loathe to interfere with such

discretion exercised by the Competent Authority dispensing

16

with the enquiry under Section 5A of the Act."

8. The Division Bench of the High Court then referred to the judgments of

this Court in First Land Acquisition Collector and Others v. Nirodhi

Prakash Ganguli and Another, (2002) 4 SCC 160; Union of India &

Others v. Praveen Gupta and Others (1997) 9 SCC 78; Nand Kishore

Gupta and Others v. State of U.P. and Others (2010) 10 SCC 282 and of

the High Court in Bijwasan Gram Vikas Samiti v. Lt. Governor and

Others - WP(C) No. 1307/2010, decided on 5.10.2010 and negatived the

appellants' challenge to the invoking of Section 17 of the Act. The

Division Bench distinguished the judgments relied upon by the

appellants' counsel by observing that those cases did not involve

challenge to the acquisition of land for infrastructure projects meant for

larger public interest. At the same time, the Division Bench referred to

the judgments in Rajiv Joshi v. Union of India 2009 (159) DLT 214,

Rajinder Kishan Gupta and another v. Lt. Governor, Government of

NCT of Delhi 2010 (114) DLT 708, Sumit Import Services Ltd. and

another v. Delhi Metro Rail Corporation and others 2008 (103) DRJ 263,

M/s. A.B.Tools Ltd. and another v. Union of India WP (C)

No.4611/1996, decided on 3.2.2010, Deepak Resorts v. Union of India

2008 (149) DLT 582, Ajay Kumar Sanghi v. Delhi Police 2009 (163)

17

DLT 74, Union of India and others v. Pramod Gupta (1997) 9 SCC 78,

Sheikhar Hotels Gulmohar Enclave v. State of U.P. (2008) 14 SCC 716

and Jai Narain v. Union of India (1999) 1 SCC 9 in which the acquisition

of land for Airport, construction of metro station/metro line, installation

of LPG Bottling Plant, construction of sewage treatment plant,

construction of police station, relocation of timber merchants outside the

walled city and widening of National Highway by invoking the urgency

provisions contained in Section 17 of the Act was upheld by the High

Court and this Court.

9. Learned counsel for the parties reiterated the arguments made before the

High Court. While Shri Dhruv Mehta relied upon the judgments of this

Court in Anand Singh v. State of U.P. (2010) 11 SCC 242 and Radhy

Shyam v. State of U.P. (2011) 5 SCC 553 to emphasize that the

acquisition of land for establishment of 400/220 KV sub-station did not

warrant invoking of the urgency provisions contained in the Act because

the proposal for establishment of the sub-station was initiated more than

five yeas prior to the issue of notification under Section 4(1) read with

Section 17(1) and (4) of the Act and there was no justification to deprive

the appellants of the right to be heard before being deprived of their

property, Shri P.P. Malhotra, learned Additional Solicitor General argued

18

that the time consumed in the exchange of correspondence between the

functionaries of the Government, the DTL and the DDA cannot be made

a ground for nullifying the exercise of the State's power of eminent

domain. In support of his argument, Shri Malhotra relied upon the

judgments of Deepak Pahwa v. Lt. Governor of Delhi (1984) 4 SCC 308

and Chameli Singh v. State of U.P. (1996) 2 SCC 549. Shri Waziri,

learned counsel for the DTL, supplemented the argument of learned

Additional Solicitor General and submitted that the Court may not quash

the acquisition of the appellants' land because the work for establishing

the sub-station has been completed to a large extent. Learned counsel

submitted that the appellants' land cannot be left out because the same is

needed for construction of project road. Shri Waziri also submitted that

the sub-station is required for evacuation of power which will be made

available from the Dadri Power Plant and no other suitable land was

available for the sub-station.

10. We have considered the respective arguments/submissions and carefully

scrutinized the record including the documents made available during the

course of hearing. The compulsory acquisition of land has generated

enormous litigation in the country in last more than five decades and this

19

Court has been repeatedly called upon to adjudicate upon the legality of

the notifications issued under the Act.

11. In State of U.P. v. Pista Devi (1986) 4 SCC 251, Rajasthan Housing

Board v. Shri Kishan (1993) 2 SCC 84, Jai Narain v. Union of India

(supra), Union of India v. Praveen Gupta (supra), Land Acquisition

Collector v. Nirodhi Prakash Ganguli (supra), Anand Buttons Ltd. v.

State of Haryana (2005) 9 SCC 164, Tika Ram v. State of U.P. (2009) 10

SCC 689, Nand Kishore Gupta v. State of U.P. (2010) 10 SCC 282 and

some other judgments, the acquisition of land under Section 4(1) read

with Section 17(1) and 17(4) and some of the State amendments for

different public purposes, i.e., for construction of houses for poor and the

members of reserved categories, establishment of medical college,

construction of sewage treatment plant under the Court's order and for

construction of Express Way has been approved. As against this, the

acquisition of land by invoking the urgency provisions for the public

purposes, like, planned residential, commercial, industrial or institutional

development has been disapproved in Narayan Govind Gavate v. State of

Maharashtra (1977) 1 SCC 133, State of Punjab v. Gurdial Singh (1980)

2 SCC 471, Om Prakash v. State of U.P. (1998) 6 SCC 1, Union of India

v. Mukesh Hans (2004) 8 SCC 14, Union of India v. Krishan Lal Arneja 20

(2004) 8 SCC 453, Hindustan Petroleum Corpn. Ltd. v. Darius Shapur

Chenai (2005) 7 SCC 627, Essco Fabs (P) Ltd. v. State of Haryana

(2009) 2 SCC 377, Babu Ram v. State of Haryana (2009) 10 SCC 115,

Anand Singh v. State of U.P. (supra), Dev Sharan v. State of U.P. (2011)

4 SCC 769, State of West Bengal v. Prafulla Churan Law (2011) 4 SCC

537 , Radhy Shyam v. State of U.P. (supra) and Devender Kumar Tyagi

v. State of U.P. (2011) 9 SCC 164 because the explanation given by the

acquiring authority for invoking Section 17(1) and/or 17(4) was found to

be wholly unsatisfactory or it was found that there was total non-

application of mind by the competent authority on the question of

necessity and desirability of invoking the urgency provisions.

12. Although, it is neither possible nor desirable to lay down any straight

jacket formula which can be applied to each and every case involving

challenge to the acquisition of land by invoking the urgency provision, it

will be profitable to notice two recent judgments in which several judicial

precedents including some of the judgments referred to in the impugned

order have been considered and some concrete propositions have been

laid down which could supply guidance for deciding such matters. In

Anand Singh v. State of U.P. (supra), this Court considered the question

whether the State Government could invoke Section 17(4) for the

21

acquisition of land for a residential colony to be constructed by

Gorakhpur Development Authority, Gorakhpur. After noticing factual

matrix of the case and about 16 judgments, the Court held:

"43. 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.

44. 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.

45. 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,

22

the judicial review of such administrative decision may become

necessary.

46. 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.

47. 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.

48. 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

23

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."

13. In Radhy Shyam v. State of U.P. (supra), this Court considered challenge

to the acquisition of land under Section 4(1) read with Section 17(1) and

(4) for planned industrial development of District Gautam Budh Nagar by

Greater Noida Industrial Development Authority and extensively referred

to the judgment in Narayan Govind Gavate v. State of Maharashtra

(1977) 1 SCC 133 and also adverted to other judgments, in which the

importance of the rules of natural justice has been highlighted, and culled

out the following principles:

"(i) Eminent domain is a right inherent in every sovereign to

take and appropriate property belonging to citizens for public

use. To put it differently, the sovereign is entitled to reassert its

dominion over any portion of the soil of the State including

private property without its owner's consent provided that such

assertion is on account of public exigency and for public good -

Dwarkadas Shrinivas v. Sholapur Spg. and Wvg. Co. Ltd.,

Charanjit Lal Chowdhury v. Union of India and Jilubhai

Nanbhai Khachar v. State of Gujarat.

(ii) The legislations which provide for compulsory acquisition

of private property by the State fall in the category of

expropriatory legislation and such legislation must be construed

strictly - DLF Qutab Enclave Complex Educational Charitable

Trust v. State of Haryana; State of Maharashtra v. B.E.

Billimoria and Dev Sharan v. State of U.P.

24

(iii) Though, in exercise of the power of eminent domain, the

Government can acquire the private property for public

purpose, it must be remembered that compulsory taking of one's

property is a serious matter. If the property belongs to

economically disadvantaged segment of the society or people

suffering from other handicaps, then the court is not only

entitled but is duty-bound to scrutinise the action/decision of

the State with greater vigilance, care and circumspection

keeping in view the fact that the landowner is likely to become

landless and deprived of the only source of his livelihood

and/or shelter.

(iv) The property of a citizen cannot be acquired by the State

and/or its agencies/instrumentalities without complying with

the mandate of Sections 4, 5-A and 6 of the Act. A public

purpose, however laudable it may be does not entitle the State

to invoke the urgency provisions because the same have the

effect of depriving the owner of his right to property without

being heard. Only in a case of real urgency, can the State

invoke the urgency provisions and dispense with the

requirement of hearing the landowner or other interested

persons.

(v) Section 17(1) read with Section 17(4) confers extraordinary

power upon the State to acquire private property without

complying with the mandate of Section 5-A. These provisions

can be invoked only when the purpose of acquisition cannot

brook the delay of even a few weeks or months. Therefore,

before excluding the application of Section 5-A, the authority

concerned must be fully satisfied that time of few weeks or

months likely to be taken in conducting inquiry under Section

5-A will, in all probability, frustrate the public purpose for

which land is proposed to be acquired.

(vi) The satisfaction of the Government on the issue of urgency

is subjective but is a condition precedent to the exercise of

power under Section 17(1) and the same can be challenged on

the ground that the purpose for which the private property is

sought to be acquired is not a public purpose at all or that the

25

exercise of power is vitiated due to mala fides or that the

authorities concerned did not apply their mind to the relevant

factors and the records.

(vii) The exercise of power by the Government under Section

17(1) does not necessarily result in exclusion of Section 5-A of

the Act in terms of which any person interested in land can file

objection and is entitled to be heard in support of his objection.

The use of word "may" in sub-section (4) of Section 17 makes

it clear that it merely enables the Government to direct that the

provisions of Section 5-A would not apply to the cases covered

under sub-section (1) or (2) of Section 17. In other words,

invoking of Section 17(4) is not a necessary concomitant of the

exercise of power under Section 17(1).

(viii) The acquisition of land for residential, commercial,

industrial or institutional purposes can be treated as an

acquisition for public purposes within the meaning of Section 4

but that, by itself, does not justify the exercise of power by the

Government under Sections 17(1) and/or 17(4). The court can

take judicial notice of the fact that planning, execution and

implementation of the schemes relating to development of

residential, commercial, industrial or institutional areas usually

take few years. Therefore, the private property cannot be

acquired for such purpose by invoking the urgency provision

contained in Section 17(1). In any case, exclusion of the rule of

audi alteram partem embodied in Sections 5-A(1) and (2) is not

at all warranted in such matters.

(ix) If land is acquired for the benefit of private persons, the

court should view the invoking of Sections 17(1) and/or 17(4)

with suspicion and carefully scrutinise the relevant record

before adjudicating upon the legality of such acquisition."

14. What needs to be emphasized is that although in exercise of the power of

eminent domain, the State can acquire the private property for public

26

purpose, it must be remembered that compulsory acquisition of the

property belonging to a private individual is a serious matter and has

grave repercussions on his Constitutional right of not being deprived of

his property without the sanction of law - Article 300A and the legal

rights. Therefore, the State must exercise this power with great care and

circumspection. At times, compulsory acquisition of land is likely to

make the owner landless. The degree of care required to be taken by the

State is greater when the power of compulsory acquisition of private land

is exercised by invoking the provisions like the one contained in Section

17 of the Act because that results in depriving the owner of his property

without being afforded an opportunity of hearing.

15. In the light of the above, it is to be seen whether there was any

justification for invoking the urgency provisions contained in Section 17

(1) and (4) of the Act for the acquisition of the appellants' land. The

Division Bench of the High Court accepted the explanation given by the

respondents by observing that sub-station in East Delhi is needed to

evacuate and utilize the power generated from 1500 MW gas based plant

at Bawana. While doing so the Bench completely overlooked that there

was long time gap of more than five years between initiation of the

proposal for establishment of the sub-station and the issue of notification

27

under Section 4 (1) read with Section 17 (1) and (4) of the Act. The High

Court also failed to notice that the Government of NCT of Delhi had not

produced any material to justify its decision to dispense with the

application of Section 5A of the Act. The documents produced by the

parties including the notings recorded in file bearing No.

F.S(11)/08/L&B/LA and the approval accorded by the Lieutenant

Governor do not contain anything from which it can be inferred that a

conscious decision was taken to dispense with the application of Section

5A which represents two facets of the rule of hearing that is the right of

the land owner to file objection against the proposed acquisition of land

and of being heard in the inquiry required to be conducted by the

Collector.

16. The scope of the rule of hearing, i.e., audi alteram partem was

highlighted by the three-Judge Bench in Sayeedur Rehman v. State of

Bihar (1973) 3 SCC 333 in the following words:

"11. ... This unwritten right of hearing is fundamental to a just

decision by any authority which decides a controversial issue

affecting the rights of the rival contestants. This right has its

roots in the notion of fair procedure. It draws the attention of

the party concerned to the imperative necessity of not

overlooking the other side of the case before coming to its

decision, for nothing is more likely to conduce to just and right

28

decision than the practice of giving hearing to the affected

parties.

17. In Maneka Gandhi v. Union of India (1978) 1 SCC 248 Bhagwati, J.

speaking for himself and Untwalia and Fazal Ali, JJ. observed:

"14. ... The audi alteram partem rule is intended to inject

justice into the law and it cannot be applied to defeat the ends

of justice, or to make the law `lifeless, absurd, stultifying, self-

defeating or plainly contrary to the common sense of the

situation'. Since the life of the law is not logic but experience

and every legal proposition must, in the ultimate analysis, be

tested on the touchstone of pragmatic realism, the audi alteram

partem rule would, by the experiential test, be excluded, if

importing the right to be heard has the effect of paralysing the

administrative process or the need for promptitude or the

urgency of the situation so demands. But at the same time it

must be remembered that this is a rule of vital importance in

the field of administrative law and it must not be jettisoned save

in very exceptional circumstances where compulsive necessity

so demands. It is a wholesome rule designed to secure the rule

of law and the court should not be too ready to eschew it in its

application to a given case. True it is that in questions of this

kind a fanatical or doctrinaire approach should be avoided, but

that does not mean that merely because the traditional

methodology of a formalised hearing may have the effect of

stultifying the exercise of the statutory power, the audi alteram

partem should be wholly excluded. The Court must make every

effort to salvage this cardinal rule to the maximum extent

permissible in a given case. It must not be forgotten that

`natural justice is pragmatically flexible and is amenable to

capsulation under the compulsive pressure of circumstances'.

The audi alteram partem rule is not cast in a rigid mould and

judicial decisions establish that it may suffer situational

modifications. The core of it must, however, remain, namely,

that the person affected must have a reasonable opportunity of

being heard and the hearing must be a genuine hearing and not

an empty public relations exercise."

29

(emphasis supplied)

18. In Mohinder Singh Gill v. Chief Election Commr.(1978) 1 SCC 405,

Krishna Iyer, J. speaking for himself, Beg, C.J. and Bhagwati, J.

observed as under:

"43. Indeed, natural justice is a pervasive facet of secular law

where a spiritual touch enlivens legislation, administration and

adjudication, to make fairness a creed of life. It has many

colours and shades, many forms and shapes and, save where

valid law excludes it, applies when people are affected by acts

of authority. It is the hone of healthy Government, recognised

from earliest times and not a mystic testament of Judge-made

law. Indeed, from the legendary days of Adam--and of

Kautilya's Arthashastra--the rule of law has had this stamp of

natural justice which makes it social justice. We need not go

into these deeps for the present except to indicate that the roots

of natural justice and its foliage are noble and not new-fangled.

Today its application must be sustained by current legislation,

case law or other extant principle, not the hoary chords of

legend and history. Our jurisprudence has sanctioned its

prevalence even like the Anglo-American system."

"48. Once we understand the soul of the rule as fair play in

action--and it is so--we must hold that it extends to both the

fields. After all, administrative power in a democratic set-up is

not allergic to fairness in action and discretionary executive

justice cannot degenerate into unilateral injustice. Nor is there

ground to be frightened of delay, inconvenience and expense, if

natural justice gains access. For fairness itself is a flexible,

pragmatic and relative concept, not a rigid, ritualistic or

sophisticated abstraction. It is not a bull in a china shop, nor a

bee in one's bonnet. Its essence is good conscience in a given

situation: nothing more--but nothing less. The `exceptions' to

the rules of natural justice are a misnomer or rather are but a

shorthand form of expressing the idea that in those exclusionary

cases nothing unfair can be inferred by not affording an

30

opportunity to present or meet a case. Textbook excerpts and

ratios from rulings can be heaped, but they all converge to the

same point that audi alteram partem is the justice of the law,

without, of course, making law lifeless, absurd, stultifying, self-

defeating or plainly contrary to the common sense of the

situation."

19. In Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664 the

majority of the three-Judge Bench held that the rule of audi alteram

partem must be complied with even when the Government exercises

power under Section 18-AA of the Industries (Development and

Regulation) Act, 1951 which empowers the Central Government to

authorise taking over of the management of industrial undertaking. Sarkaria, J. speaking for himself and Desai, J. referred to the

development of law relating to applicability of the rule of audi alteram

partem to administrative actions, noticed the judgments in Ridge v.

Baldwin (1964) AC 40, A.K. Kraipak v. Union of India (1969) 2 SCC

262, Mohinder Singh Gill v. Chief Election Commr. (supra), Maneka

Gandhi v. Union of India (supra) and State of Orissa v. Dr. Binapani Dei

(1967) 2 SCR 625 and quashed the order passed by the Central

Government for taking over the management of the industrial

undertaking of the appellant on the ground that opportunity of hearing

has not been given to the owner of the undertaking and remanded the

31

matter for fresh consideration and compliance with the rule of audi

alteram partem.

20. In Munshi Singh v. Union of India (1973) 2 SCC 337, the three-Judge

Bench of this Court emphasised the importance of Section 5-A in the

following words:

"7. ... Sub-section (2) of Section 5-A makes it obligatory on the

Collector to give an objector an opportunity of being heard.

After hearing all objections and making further inquiry he is to

make a report to the appropriate Government containing his

recommendation on the objections. The decision of the

appropriate Government on the objections is then final. The

declaration under Section 6 has to be made after the appropriate

Government is satisfied, on a consideration of the report, if any,

made by the Collector under Section 5-A(2). The legislature

has, therefore, made complete provisions for the persons

interested to file objections against the proposed acquisition and

for the disposal of their objections. It is only in cases of urgency

that special powers have been conferred on the appropriate

Government to dispense with the provisions of Section 5-A."

21. It is also apposite to mention that no tangible evidence was produced by

the respondents before the Court to show that the task of establishing the

sub-station at Mandoli was required to be accomplished within a fixed

schedule and the urgency was such that even few months time, which

may have been consumed in the filing of objections by the land owners

and other interested persons under Section 5A(1) and holding of inquiry

by the Collector under Section 5A(2), would have frustrated the project.

32

It seems that the Bench of the High Court was unduly influenced by the

fact that consumption of power in Delhi was increasing everyday and the

DTL was making an effort to ensure supply of power to different areas

and for that purpose establishment of sub-station at village Mandoli was

absolutely imperative. In our view, the High Court was not justified in

rejecting the appellants' challenge to the invoking of urgency provisions

on the premise that the land was required for implementation of a project

which would benefit large section of the society. It needs no emphasis

that majority of the projects undertaken by the State and its agencies /

instrumentalities, the implementation of which requires public money,

are meant to benefit the people at large or substantially large segment of

the society. If what the High Court has observed is treated as a correct

statement of law, then in all such cases the acquiring authority will be

justified in invoking Section 17 of the Act and dispense with the inquiry

contemplated under Section 5A, which would necessarily result in

depriving the owner of his property without any opportunity to raise

legitimate objection. However, as has been repeatedly held by this Court,

the invoking of the urgency provisions can be justified only if there exists

real emergency which cannot brook delay of even few weeks or months.

In other words, the urgency provisions can be invoked only if even small

33

delay of few weeks or months may frustrate the public purpose for which

the land is sought to be acquired. Nobody can contest that the purpose

for which the appellants' land and land belonging to others was sought to

be acquired was a public purpose but it is one thing to say that the State

and its instrumentality wants to execute a project of public importance

without loss of time and it is an altogether different thing to say that for

execution of such project, private individuals should be deprived of their

property without even being heard. It appears that attention of the High

Court was not drawn to the following observations made in State of

Punjab v. Gurdial Singh (supra):

"it is fundamental that compulsory taking of a man's

property is a serious matter and the smaller the man the

more serious the matter. Hearing him before depriving

him is both reasonable and pre-emptive of arbitrariness,

and denial of this administrative fairness is constitutional

anathema except for good reasons. Save in real urgency

where public interest does not brook even the minimum

time needed to give a hearing land acquisition authorities

should not, having regard to Articles 14 (and 19), burke

an enquiry under Section 17 of the Act. Here a

slumbering process, pending for years and suddenly

exciting itself into immediate forcible taking, makes a

travesty of emergency power."

22. A recapitulation of the facts would show that the idea of establishing

400/220 KV sub-station was mooted prior to August, 2004. For next

almost three years, the officers of the DTL and the DDA exchanged

34

letters on the issue of allotment of land. On 28.7.2008 Secretary (Power),

Government of NCT of Delhi-cum-CMD, DTL made a suggestion for the

acquisition of land by invoking Section 17 of the Act. This became a tool

in the hands of the concerned authorities and the Lieutenant Governor

mechanically approved the proposal contained in the file without trying

to find out as to why the urgency provisions were being invoked after a

time gap of five years. If the sub-station was to be established on

emergency basis, the authorities of the DTL would not have waited for

five years for the invoking of urgency provisions enshrined in the Act.

They would have immediately approached the Government of NCT of

Delhi and made a request that land be acquired by invoking Section 17 of

the Act. However, the fact of the matter is that the concerned officers /

functionaries of the DTL, the DDA and the Government of NCT of Delhi

leisurely dealt with the matter for over five years. Even after some sign of

emergency was indicated in letter dated 9.9.2008 of the Joint Secretary

(Power), who made a mention of the Commonwealth Games scheduled

to be organised in October, 2010, it took more than one year and two

months to the competent authority to issue the preliminary notification.

Therefore, we are unable to approve the view taken by the High Court on

35

the sustainability of the appellants' challenge to the acquisition of their

land.

23. Before concluding we deem it appropriate to notice the judgments relied

upon by the learned Additional Solicitor General. A cursory reading of

the judgment in Deepak Pahwa v. Lt. Governor of Delhi (supra) (3-Judge

Bench) gives an impression that the proposition contained therein

supports the argument of Shri Malhotra, that pre-notification delay is not

relevant for deciding legality of the exercise of the State's power of

eminent domain and invoking of the urgency provisions contained in the

Act but careful reading of the judgment along with the precedents

referred to in paragraph 8 makes it clear that nothing contained therein

can be relied upon for overlooking the time gap of five years between the

initiation of proposal for establishment of the sub-station and the issue of

notification under Section 4(1) read with Section 17 (1) and (4) of the

Act. That case involved challenge to the acquisition of land for

construction of `New Transmitting Station for the Delhi Airport'. The

High Court dismissed the writ petition in limine. The special leave

petition was also dismissed at the threshold. While dealing with the

argument that there was no justification to invoke Section 17(4) of the

Act and to dispense with the inquiry under Section 5A because eight

36

years time was spent in inter-departmental discussions, this court

observed:

"The other ground of attack is that if regard is had to the

considerable length of time spent on inter-departmental

discussion before the notification under Section 4(1) was

published, it would be apparent that there was no

justification for invoking the urgency clause under

Section 17(4) and dispensing with the enquiry under

Section 5-A. We are afraid, we cannot agree with this

contention. Very often persons interested in the land

proposed to be acquired make various representations to

the concerned authorities against the proposed

acquisition. This is bound to result in a multiplicity of

enquiries, communications and discussions leading

invariably to delay in the execution of even urgent

projects. Very often the delay makes the problem more

and more acute and increases the urgency of the necessity

for acquisition. It is, therefore, not possible to agree with

the submission that mere pre-notification delay would

render the invocation of the urgency provisions void. We

however wish to say nothing about post-notification

delay. In Jage Ram v. State of Haryana (1971) 1 SCC

671 this Court pointed out the fact that the State

Government or the party concerned was lethargic at an

earlier stage is not very relevant for deciding the question

whether on the date on which the notification was issued,

there was urgency or not. In Kasireddy Papaiah v.

Government of Andhra Pradesh, AIR 1975 AP 269 it was

held, "... delay on the part of tardy officials to take the

further action in the matter of acquisition is not sufficient

to nullify the urgency which existed at the time of the

issue of the notification and to hold that there was never

any urgency". In the result both the submissions of the

learned counsel for the petitioners are rejected and the

special leave petitions are dismissed."

(underlining is ours)

37

In making the aforesaid observation, the Court appears to have been unduly

influenced by what was perceived at the relevant time as pulling of strings in

the power corridors by the interested persons which resulted in frustration of the

public oriented projects. The general observations made in Deepak Pahwa's

case cannot supply basis for approving the impugned order and the notifications

challenged by the appellants because it is neither the pleaded case of the

respondents nor it has been suggested that the delay was caused due to the

representation made by the appellants or that they brought extraneous pressure

to prevent the acquisition of their land.

24. We may now notice the two decisions referred to in paragraph 8 of the

judgment in Deepak Pahwa's case. In Jage Ram v. State of Haryana

(1971) 1 SCC 671 the acquisition of land for setting up a factory for the

manufacture of China-ware, Porcelain-ware including wall glazed tiles,

etc., at the instance of a private industrialist by invoking Section 17(2)(c)

of the Act (as amended by Haryana Legislature) was challenged. The

State Government had issued notification dated 14/17.03.1969 under

Section 4 of the Act. Simultaneously, a direction was given for taking

action under Section 17(2)(c) and it was declared that the provisions of

Section 5A shall not apply. On 8.4.1969 the appellants filed writ petition,

which was dismissed by the High Court. This Court negatived the

38

challenge to the invoking of the urgency provisions by making the

following observations:

"The allegations in the writ petition include the assertion

that there was no urgency in the matter of acquiring the

land in question and therefore there was no justification

for having recourse to Section 17 and thus deprive the

appellants of the benefit of Section 5-A of the Act. It was

further alleged therein that the acquisition in question

was made for the benefit of a company and hence

proceedings should have been taken under Sections 38 to

44(B) of the Act and that there was no public purpose

involved in the case. It was further pleaded that the land

acquired was not waste and arable land and that Section

2(c) of the Act did not confer power on the Government

to dispense with the proceedings under Section 5-A. In

the counter-affidavit filed by the Deputy Director of

Industries (Administration), Government of Haryana on

behalf of the State of Haryana, the above allegations

were all denied. Therein it is stated that at the instance of

the State of Haryana, Government of India had issued a

letter of intent to a company for setting up a factory for

the manufacture of Glazed Tiles etc. in village Kasser.

That project was to be started with the collaboration of a

foreign company known as Pilkington Tiles Ltd. The

scheme for setting up the project had been finalised and

approved by the concerned authorities. On November 26,

1968, the Government wrote to one of the promoters of

the project, Shri H.L. Somany asking him to complete the

"arrangements for the import of capital equipment and

acquisition of land in Haryana State for setting up of the

proposed factory". It was further stated in that

communication that the Government was pleased to

extend the time for completing the project up to April 30,

1969. Under those circumstances it had become

necessary for the State of Haryana to take immediate

steps to acquire the required land. It was under those

circumstances the Government was constrained to have

recourse to Section 17 of the Act. The Government

39

denied the allegation that the facts of this case did not

come within the scope of Section 17(2)(c). It was also

denied that the acquisition in question was not made for a

public purpose.

There is no denying the fact that starting of a new

industry is in public interest. It is stated in the affidavit

filed on behalf of the State Government that the new

State of Haryana was lacking in industries and

consequently it had become difficult to tackle the

problem of unemployment. There is also no denying the

fact that the industrialisation of an area is in public

interest. That apart, the question whether the starting of

an industry is in public interest or not is essentially a

question that has to be decided by the Government. That

is a socio-economic question. This Court is not in a

position to go into that question. So long as it is not

established that the acquisition is sought to be made for

some collateral purpose, the declaration of the

Government that it is made for a public purpose is not

open to challenge. Section 6(3) says that the declaration

of the Government that the acquisition made is for public

purpose shall be conclusive evidence that the land is

needed for a public purpose. Unless it is shown that there

was a colourable exercise of power, it is not open to this

Court to go behind that declaration and find out whether

in a particular case the purpose for which the land was

needed was a public purpose or not: see Smt Somavanti

v. State of Punjab and Raja Anand Brahma Shah v. State

of U.P. On the facts of this case there can be hardly any

doubt that the purpose for which the land was acquired is

a public purpose.

Now coming to the question of urgency, it is clear from

the facts set out earlier that there was urgency. The

Government of India was pleased to extend time for the

completion of the project up to April 30, 1969. Therefore

urgent steps had to be taken for pushing through the

project. The fact that the State Government or the party

40

concerned was lethargic at an earlier stage is not very

relevant for deciding the question whether on the date on

which the notification was issued, there was urgency or

not. The conclusion of the Government in a given case

that there was urgency is entitled to weight, if not

conclusive."

There is nothing in the aforesaid judgment which can possibly support the cause

of the respondents. The scheme for setting up an industry by a company known

as Pilkington Tiles Ltd. of which one H.S. Somany was a promoter was

finalized on 26.11.1968 and the notification was issued on 14/17.3.1969. This

shows that the time gap between finalization of the scheme and the issue of

preliminary notification was less than four months. Therefore, the judgment in

Jage Ram's case could not have been relied upon for taking the view that pre-

notification delay cannot be considered while deciding legality of the State's

action to invoke the urgency provisions. That apart, we have serious reservation

whether the Court could have approved the invoking of urgency provisions for

the acquisition of land on behalf of a private company ignoring that there is a

separate Chapter for such acquisition.

25. In Kasireddy Papaiah v. Government of A.P. AIR 1975 AP 269 to which

reference has been made in the judgment of Deepak Pahwa's case, the

learned Single Judge (Chinnappa Reddy, J., as he then was) rejected the

challenge to the acquisition of land under Section 4(1) read with Section

41 17(4). The facts of that case show that notification under Section 4(1)

read with Section 17(4) was issued on 19.5.1970 and was published in

the official gazette dated 24.9.1970. The declaration under Section 6 was

published in official gazette dated 25.2.1971. The writ petition was filed

on 16.9.1971. The High Court held that the time gap of six months was

not fatal to the invoking of the urgency provisions because the land was

acquired for providing house sites to the Harijans. There is nothing in

that judgment which merits serious consideration by this Court.

26. In Chameli Singh v. State of U.P. (supra) this Court simply followed the

observations made by the learned Single Judge of the Andhra Pradesh

High Court in Kasireddy Papaiah's case and held that the acquisition of

land for providing housing accommodation for Harijans did warrant

invoking of the urgency provisions and delay by the officials cannot be

made a ground to nullify the acquisition. There is no particular discussion

in the judgment about the time lag between the proposal for the

acquisition of land and the issue of notification under Section 4(1) read

with Section 17(1) and (4). Therefore, that judgment is also of no

assistance to the respondents.

42

27. It is also appropriate to mention that in paragraph 48 of the judgment in

Anand Singh v. State of UP (supra) this Court did take cognizance of the

conflicting views expressed on the effect of pre-notification and post-

notification delay on the invoking of urgency provisions and observed

that such delay will have material bearing on the question of invocation

of urgency power, particularly, when no material is produced by the

appropriate Government to justify elimination of the inquiry envisaged

under Section 5A.

28. In the result, the appeal is allowed and the impugned order is set aside.

As a corollary, the writ petition filed by the appellants is allowed and the

acquisition of their land is quashed. However, it is made clear that this

judgment shall not preclude the competent authority from issuing fresh

notification under Section 4(1) and taking other steps necessary for the

acquisition of the appellant's land. If the respondents initiate fresh

proceedings for the acquisition of the appellants' land then they shall be

free to file objections under Section 5A(1) and they shall also be entitled

to be heard in the inquiry to be conducted by the Collector in terms of

Section 5A(2) of the Act. The parties are left to bear their own costs.

..........................................J.

[G.S. Singhvi]

43

..........................................J.

[Sudhansu Jyoti Mukhopadhaya]

New Delhi

January 3, 2012.