Radhy Shyam(D)Thr. Lrs & Ors vs State Of U.P.& Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3261

OF 2011

(Arising out of Special Leave Petition (C) No.601 of 2009)

Sri Radhy Shyam (Dead) Through L.Rs. and others ......Appellants

Versus

State of U.P. and others ......Respondents

J U D G M E N T

G.S. Singhvi, J.

1. Leave granted.

2. This appeal is directed against order dated 15.12.2008 passed by the

Division Bench of the Allahabad High Court whereby the writ petition filed

by the appellants questioning the acquisition of their land for planned

industrial development of District Gautam Budh Nagar through Greater

NOIDA Industrial Development Authority (hereinafter referred to as the,

"Development Authority") by invoking Section 17(1) and 17(4) of the Land

Acquisition Act, 1894 (for short, "the Act"), as amended by Uttar Pradesh

Act No.8 of 1974, was dismissed.

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3. Upon receipt of proposal from the Development Authority for

acquisition of 205.0288 hectares land of village Makora, Pargana Dankaur,

Tehsil and District Gautam Budh Nagar, which was approved by the State

Government, notification dated 12.3.2008 was issued under Section 4(1)

read with Section 17(1) and 17(4) of the Act. The relevant portions of the

notification are extracted below:

"Under Sub-Section (1) of Section 4 of the Land

Acquisition Act 1894 (Act no.1 of 1894), the Governor is

pleased to notify for general information that the land

mentioned in the scheduled below, is needed for public

purpose, namely planned industrial development in

District Gautam Budh Nagar through Greater Noida

Industrial Development Authority.

2. The Governor being of the opinion that the

provisions of sub-section 1 of Section 17 of the said Act,

are applicable to said land inasmuch as the said land is

urgently required, for the planned industrial development

in District Gautam Budh Nagar through Greater Noida

Industrial Development Authority and it is as well

necessary to eliminate the delay likely to be caused by an

enquiry under Section 5A of the said Act, the Governor

is further pleased to direct under sub-section 4 of Section

17 of the said Act that the provisions of Section 5A of the

said Act, shall not apply."

4. Since the appellants' land was also included in the notification, they

made a representation to the Chairman-cum-Chief Executive Officer of the

Development Authority (Respondent No.4) with copies to the Chief

Minister, Principal Secretary, Housing and Urban Development, U.P., the

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District Magistrate and the Special Officer, Land Acquisition, Gautam

Buddh Nagar with the request that their land comprised in Khasra No.394

may not be acquired because they had raised construction 30-35 years ago

and were using the property for abadi/habitation. The concerned

functionaries/authorities did not pay heed to the request of the appellants and

the State Government issued notification dated 19.11.2008 under Section 6

read with Section 9 of the Act.

5. The appellants challenged the acquisition of their land on several

grounds including the following:

(i) That the land cannot be used for industrial purposes because in

the draft Master Plan of Greater NOIDA (2021), the same is shown as

part of residential zone.

(ii) That they had already constructed dwelling houses and as per

the policy of the State Government, the residential structures are

exempted from acquisition.

(iii) That the State Government arbitrarily invoked Section 17(1)

read with Section 17(4) of the Act and deprived them of their valuable

right to raise objections under Section 5-A.

(iv) The acquisition of land is vitiated by arbitrariness, mala fides and

violation of Article 14 of the Constitution inasmuch as lands of the

Member of Legislative Assembly and other influential persons were

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left out from acquisition despite the fact that they were not in abadi,

but they were not given similar treatment despite the fact that their

land was part of abadi and they had constructed dwelling units.

6. In support of their challenge to the invoking of Section 17(1) and (4),

the appellants made detailed averments in paragraphs 11 and 16 and raised

specific grounds A and F, which are extracted below:

"11. That as per the scheme of the said Act, each and

every section from sections 4 to 17 has an independent

role to play though there is an element of interaction

between them. Section 5-A, has a very important role to

play in the acquisition proceedings and it is mandatory of

the part of the government to give hearing to the person

interested in the land whose land is sought to be

acquired. It is relevant to point out that the acquisition

proceedings under the Act, are based on the principal of

eminent domain and the only protection given to the

person whose land is sought to be acquired is an

opportunity under Section 5-A of the Act to convince the

enquiring authority that the purpose for which the land is

sought to be acquired is in fact is not a public purpose

and is only purported to be one in the guise of a public

purpose.

It is relevant to mention here that excluding the

enquiry under Section 5-A can only be an exception

where the urgency cannot brook any delay. The enquiry

provides an opportunity to the owner of land to convince

the authorities concerned that the land in question is not

suitable for purpose for which it is sought to be acquired

or the same sought to be acquired for the collateral

purposes. It is pertinent to mention here that the

respondents No. 1 & 2 without the application of mind

dispensed with the enquiry on the ground of urgency

invoking the power conferred by Section 17 (1) or (2) of

the Act. Further, the respondent No. 1 & 2 without

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application of mind did not considered the survey report

of the abadi of the village Makaura where the entire land

is being used for the purpose of residence and grazing of

cattle's in Khasra No. 394. Further, the petitioners were

surprised to find that their land have not been included in

the Abadi irrespective the same is in use for habitable

and keeping the cattle and other uses. The petitioners

have constructed their houses and using the same for

their residence and keep their cattle's and agricultural

produce. The survey report clearly shows that the

impugned Khasra No. 394 is in use for residence. The

report in respect of the land in question falling in Khasra

No. 394 given by the respondent No. 4 vide

communication dated 26th March, 2007 is annexed as

Annexure 6.

16. That the said notification under Section 4 of the

Act issued by the respondent No. 1 and 2 is without

application of mind and there was no urgency in the

acquisition of land, for the planned industrial

development, as the land, as per the master plan - 2021

the land of the village Makaura is reserved for

"residential" of which the respondent No. 2 invoked

Section 17 (1) and subsection 4 of the Act by dispensing

with an enquiry under Section 5A of the Act. The said

action on the part of the respondents are un-warranted

and is in gross violation of Article 14,19, 21 and 300A of

the constitution. The such illegal act on the part of the

respondents show mala fide and their oblique motive to

deprive the owners from their houses in order to fulfill

their political obligations/promise to the private builders

by taking the shelter of section 17 of the Act by

dispensing with the enquiry under Section 5-A of the Act

as well as overlooked purpose as stipulated in the Master

Plan 2021 which is any way do not require any urgent

attention.

A. That the whole acquisition proceedings are void,

unconstitutional, tainted with mala fide, abuse of

authority and power, non-application of mind, and as

such, liable to be quashed as violative of Articles 14,19

and 300-A of the Constitution of India.

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F. That the purpose stated in the notification under

Section 4 and declaration under section 6 by invoking

section 17 is presently non-existent and thus the

notification is bad in law. There is no urgency for the

invocation when the land is to be acquired for planned

development for the purpose of setting residential colony.

The impugned notification is without any authority

of law and volatile of Article 300-A of the Constitution

of India, which limits the power to acquire land to the

authority under the Land Acquisition Act. Therefore, the

notification in question is bad in law."

(emphasis supplied)

7. The High Court negatived the appellants' challenge at the threshold

mainly on the ground that the averments contained in the petition were not

supported by a proper affidavit. This is evident from the following portions

of the impugned order:

"Here the petitioners neither have pleaded that there exist

no material before the State Government to come to the

conclusion that the enquiry under Section 5-A should be

dispensed with by invoking Section 17(4) of the Act nor

the learned counsel for the petitioners could place before

us any such averment in the writ petition. Though, in

para-11 of the writ petition, an averment has been made

that the respondents no. 1 and 2 without the application

of mind dispensed with the enquiry on the ground of

urgency invoking the power conferred by Section 17(1)

or (2) of the Act, but in the affidavit, the said paragraph

has been sworn on the basis of perusal of record.

Similarly in para 16 of the writ petition, the only

averment contained therein is as under:

"16. That the said notification under Section 4 of the

Act issued by the respondent No.1 and 2 is without

application of mind and there was no urgency in the

acquisition of land, for the planned industrial

development, as the land, as per the master plan-2021

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the land of the village Makaura is reserved for

"residential" of which the respondent No.2 invoked

Section 17(1) and sub-section 4 of the Act by

dispensing with an enquiry under Section 5-A of the

Act. The said action on the part of the respondents are

un-warranted and is in gross violation of Article

14,19,21 and 300A of the Constitution. The such

illegal act on the part of the respondents show mala

fide and their oblique motive to deprive the owners

from their houses in order to fulfill their political

obligations/ promise to the private builders by taking

the shelter of Section 17 of the Act by dispensing with

the enquiry under Section 5-A of the Act as well as

overlooked purpose as stipulated in the Master Plan

2021 which is any way do not require any urgent

attention."

However, in the affidavit, this para has not been sworn at

all and in any case with respect to dispensation of

enquiry under Section 5-A by invoking Section 17(4) of

the Act nothing has been said except that the exercise of

power is violative of Articles 14,19, 21 and 300-A of the

Constitution.

We, therefore, do not find any occasion even to call upon

the respondents to file a counter affidavit placing on

record, the material if any for exercising power under

Section 17(1) and (4) of the Act in the absence of any

relevant pleading or material and the question of

requiring the respondents to produce the original record

in this regard also does not arise."

8. The High Court distinguished the judgment of this Court in Om

Prakash v. State of U.P. (1998) 6 SCC 1, albeit without assigning any

cogent reason, relied upon the judgments of the Division Benches in

Kshama Sahkari Avas Samiti Ltd. v. State of U.P. 2007 (1) AWC 327,

Jasraj Singh v. State of U.P. 2008 (8) ADJ 329 and Jagriti Sahkari Avas

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Samiti Ltd. Ghaziabad v. State of U.P. 2008 (9) ADJ 43 and held that the

decision of the Government to invoke Section 17(1) cannot be subjected to

judicial review. The High Court also rejected the appellants' plea that in

terms of the policy framed by the State Government, the land covered by

abadi cannot be acquired by observing that no material has been placed on

record to show that the policy framed in 1991 was still continuing. To

buttress this conclusion, the High Court relied upon the judgment of this

Court in Anand Buttons Limited v. State of Haryana (2005) 9 SCC 164.

9. By an order dated 29.10.2010, this Court, after taking cognizance of

the fact that the respondents did not get opportunity to file reply to the writ

petition, directed them to do so. Thereupon, Shri Harnam Singh, Additional

District Magistrate (Land Acquisition)/Officer on Special Duty (Land

Acquisition) NOIDA, District Gautam Budh Nagar filed counter affidavit on

behalf of respondent Nos.1 to 3. In paragraph 10 of his affidavit, Shri

Harnam Singh has attempted to justify invoking of the urgency clause by

making the following assertions:

"That in invoking the urgency clause the State

Government has taken into consideration the following

factors:-

i) Greater Noida Industrial Development Authority

was constituted under the U.P. Industrial Area

Development Act, 1976 to promote Industrial and Urban

Development in the Area. The acquired land was

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urgently required by the Development Authority for

planned Industrial Development of the area.

ii) That the land in the adjoining villages were already

acquired by the Greater Noida Industrial Development

Authority. Thus, the acquired land was urgently required

for continuity of infrastructure services and planned

Industrial Development of the Area. If, the proposed

land was not acquired immediately and delay in this

regard would lead to encroachments and would adversely

affect the Planned Industrial Development of the Area.

iii) That the acquired land was required for overall

development i.e. construction of roads, laying of

sewerages, providing electricity etc. in the area and the

said scheme has been duly approved by the state

government.

iv) That the acquired land consists of 246 plots

numbers with 392 recorded tenure holders. If objections

are to be invited and hearing be given to such large

number of tenure holders, it would take long time to

dispose of the objections thereof and would hamper the

planned development of the area.

v) That reputed industrial houses who are interested

in investing in the State and in case the land is not

readily available, they might move to other states

and such a move would adversely affect the

employment opportunities in the State."

Shri Harnam Singh also controverted the appellants' plea for

exemption by stating that the constructions made by them on land of Khasra

Nos.101 and 399 were insignificant and the construction raised on Khasra

No.394 is not part of village Abadi.

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10. Shri Manoj Kumar Singh, Tehsildar filed a separate affidavit on

behalf of Respondent No.4 and justified the invoking of urgency clause by

asserting that large tracts of land were acquired for industrial development

of the district. According to him, as per the policy of industrial development

of the State Government, the land is required to be allotted to industrial

houses.

11. On 8.11.2010, Shri Dinesh Dwivedi learned senior counsel for the

State made a request for permission to file additional affidavit with some

documents. His request was accepted. Thereafter, the respondents filed an

affidavit of Shri Sushil Kumar Chaubey, Tehsildar, Land Acquisition,

Gautam Budh Nagar along with eight documents of which seven have been

collectively marked as Annexure A-1. The first of the documents marked

Annexure A-1 is copy of letter dated 25.2.2008 sent by the Commissioner

and Director, Directorate of Land Acquisition, Revenue Board, U.P. to the

Special Secretary, Industrial Development on the subject of issuance of

notification under Sections 4 and 17 of the Act for acquisition of lands

measuring 205.0288 hectares of village Makora. The second document is an

undated letter signed by Deputy Chief Executive Officer, Greater Noida,

Collector, Gautam Budh Nagar and four other officers/officials. The next

document has been described as comments/certificate on the issues raised in

Government Order No.5261/77-4-06-251N/06 dated 21.12.2006 with regard

to proposal for acquisition of 205.0288 hectares lands in village Makora.

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This document is accompanied by seven forms containing various

particulars. The third document is communication dated 29.10.2007 sent by

the Commissioner, Meerut Division, Meerut to the District Magistrate,

Gautam Budh Nagar conveying the consent of the Divisional Land Utility

Committee for the acquisition of lands of five villages including Makora.

This letter is accompanied by minutes of the meeting of the Divisional Land

Utility Committee held on 29.10.2007. The fifth document is form No.43A-

1. The sixth document is communication dated 22.2.2008 sent by Collector,

Land Acquisition/Special Land Acquisition Officer, Greater Noida. The last

document which forms part of Annexure A-1 is form No.16 showing the list

of properties having constructions etc. Annexure A-2 is copy of letter dated

31.10.2008 sent by the Director, Directorate of Land Acquisition to the

Special Secretary, Industrial Development.

12. Shri N.P.Singh, learned counsel for the appellants argued that the

impugned order is liable to be set aside because the High Court failed to

consider the issues raised in the writ petition in a correct perspective.

Learned counsel submitted that the appellants had specifically pleaded that

there was no valid ground to invoke the urgency clause contained in Section

17(1) and to dispense with the application of Section 5-A but the High Court

did not even call upon the respondents to file counter affidavit and brushed

aside the challenge to the acquisition proceeding on a wholly untenable

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premise that the affidavit filed in support of the writ petition was laconic.

Learned counsel further argued that the purpose for which land was acquired

i.e. planned industrial development of the district did not justify invoking of

the urgency provisions and denial of opportunity to the appellants and other

land owners to file objections under Section 5-A (1) and to be heard by the

Collector in terms of the mandate of Section 5-A (2). In support of his

argument, learned counsel relied upon the judgments in Narayan Govind

Gavate v. State of Maharashtra (1977) 1 SCC 133 and Esso Fabs Private

Limited v. State of Haryana (2009) 2 SCC 377. Another argument of the

learned counsel is that the High Court misdirected itself in summarily

dismissing the writ petition ignoring the substantive plea of discrimination

raised by the appellants.

13. Shri Dinesh Dwivedi, learned senior counsel appearing for the

respondents urged that this Court should not nullify the acquisition at the

instance of the appellants because the pleadings filed before the High Court

were not supported by proper affidavit. Shri Dwivedi argued that the High

Court was justified in non-suiting the appellants because they did not

produce any evidence to effectively challenge the invoking of urgency

provision contained in Section 17(1). Learned senior counsel emphasized

that the satisfaction envisaged in Section 17(1) is purely subjective and the

Court cannot review the decision taken by the State Government to invoke

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the urgency clause. He submitted that planned industrial development of

District Gautam Budh Nagar is being undertaken in consonance with the

policy decision taken by the State Government and the appellants cannot be

heard to make a grievance against the acquisition of their land because they

will be duly compensated. In support of his argument, Shri Dwivedi relied

upon the judgment of this Court in State of U.P. v. Pista Devi (1986) 4 SCC

251 and Chameli Singh v. State of U.P. (1996) 2 SCC 549. Learned senior

counsel further submitted that the appellants' land cannot be released from

acquisition because that will result in frustrating the objective of planned

industrial development of the district. On the issue of discrimination, Shri

Dwivedi argued that even if the land belonging to some persons has been

illegally left out from acquisition, the appellants are not entitled to a

direction that their land should also be released.

14. The first issue which needs to be addressed is whether the High Court

was justified in non-suiting the appellants on the ground that they had not

raised a specific plea supported by a proper affidavit to question the decision

taken by the State Government to invoke Section 17(1) and 17(4) of the Act.

We shall also consider an ancillary issue as to whether the appellants had

succeeded in prima facie proving that there was no justification to invoke

the urgency clause and to dispense with the inquiry envisaged under Section

5-A.

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15. At the outset, we record our disapproval of the casual manner in

which the High Court disposed of the writ petition without even calling upon

the respondents to file counter affidavit and produce the relevant records. A

reading of the averments contained in paragraphs 11 and 16 and grounds A

and F of the writ petition, which have been extracted hereinabove coupled

with the appellants' assertion that the acquisition of their land was vitiated

due to discrimination inasmuch as land belonging to influential persons had

been left out from acquisition, but their land was acquired in total disregard

of the policy of the State Government to leave out land on which dwelling

units had already been constructed, show that they had succeeded in making

out a strong case for deeper examination of the issues raised in the writ

petition and the High Court committed serious error by summarily non-

suiting them.

16. The history of land acquisition legislations shows that in Eighteenth

Century, Bengal Regulation I of 1824, Act I of 1850, Act VI of 1857, Act

XXII of 1863, Act X of 1870, Bombay Act No. XXVIII of 1839, Bombay

Act No. XVII of 1850, Madras Act No. XX of 1852 and Madras Act No.1 of

1854 were enacted to facilitate the acquisition of land and other immovable

properties for roads, canals, and other public purposes by paying the amount

to be determined by the arbitrators. In 1870, the Land Acquisition Act was

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enacted to provide for proper valuation of the acquired land. That Act

envisaged that if the person having interest in land is not agreeable to part

with possession by accepting the amount offered to him, then the Collector

may make a reference to the Civil Court. The 1870 Act also envisaged

appointment of assessors to assist the Civil Court. If the Court and the

assessor did not agree on the amount then an appeal could be filed in the

High Court. This mechanism proved ineffective because lot of time was

consumed in litigation. With a view to overcome this problem, the

legislature enacted the Act on the line of the English Lands Clauses

Consolidation Act, 1845. However, the land owners or persons having

interest in land did not have any say in the acquisition process either under

pre-1984 legislations or the 1984 Act (un-amended). They could raise

objection only qua the amount of compensation and matters connected

therewith. The absence of opportunity to raise objection against the

acquisition of land was resented by those who were deprived of their land.

To redress this grievance, Section 5A was inserted in the Act by amending

Act No.38 of 1923. The statement of Objects and Reasons contained in Bill

No.29 of 1923, which led to enactment of the amending Act read as under:

"The Land Acquisition Act I of 1894 does not provide

that persons having an interest in land which it is

proposed to acquire, shall have the right of objecting to

such acquisition; nor is Government bound to enquire

into and consider any objections that may reach them.

The object of this Bill is to provide that a Local

Government shall not declare, under Section 6 of the Act,

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that any land is needed for a public purpose unless time

has been allowed after the notification under Section 4

for persons interested in the land to put in objections and

for such objections to be considered by the Local

Government."

17. The Act, which was enacted more than 116 years ago for

facilitating the acquisition of land and other immovable properties for

construction of roads, canals, railways etc., has been frequently used in

the post independence era for different public purposes like laying of

roads, construction of bridges, dams and buildings of various public

establishments/institutions, planned development of urban areas,

providing of houses to different sections of the society and for

developing residential colonies/sectors. However, in the recent years, the

country has witnessed a new phenomena. Large tracts of land have been

acquired in rural parts of the country in the name of development and

transferred to private entrepreneurs, who have utilized the same for

construction of multi-storied complexes, commercial centers and for

setting up industrial units. Similarly, large scale acquisitions have been

made on behalf of the companies by invoking the provisions contained in

Part VII of the Act.

18. The resultant effect of these acquisitions is that the land owners,

who were doing agricultural operations and other ancillary activities in

rural areas, have been deprived of the only source of their livelihood.

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Majority of them do not have any idea about their constitutional and legal

rights, which can be enforced by availing the constitutional remedies

under Articles 32 and 226 of the Constitution. They reconcile with

deprivation of land by accepting the amount of compensation offered by

the Government and by thinking that it is their fate and destiny

determined by God. Even those who get semblance of education are

neither conversant with the functioning of the State apparatus nor they

can access the records prepared by the concerned authorities as a prelude

to the acquisition of land by invoking Section 4 with or without the aid

of Section 17(1) and/or 17(4). Therefore, while examining the land

owner's challenge to the acquisition of land in a petition filed under

Article 226 of the Constitution, the High Court should not adopt a

pedantic approach, as has been done in the present case, and decide the

matter keeping in view the constitutional goals of social and economic

justice and the fact that even though the right to property is no longer a

fundamental right, the same continues to be an important constitutional

right and in terms of Article 300-A, no person can be deprived of his

property except by authority of law. In cases where the acquisition is

made by invoking Section 4 read with Section 17(1) and/or 17(4), the

High Court should insist upon filing of reply affidavit by the respondents

and production of the relevant records and carefully scrutinize the same

before pronouncing upon legality of the impugned notification/action

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because a negative result without examining the relevant records to find

out whether the competent authority had formed a bona fide opinion on

the issue of invoking the urgency provision and excluding the application

of Section 5-A is likely to make the land owner a landless poor and force

him to migrate to the nearby city only to live in a slum. A departure from

this rule should be made only when land is required to meet really

emergent situations like those enumerated in Section 17(2). If the

acquisition is intended to benefit private person(s) and the provisions

contained in Section 17(1) and/or 17(4) are invoked, then scrutiny of the

justification put forward by the State should be more rigorous in cases

involving the challenge to the acquisition of land, the pleadings should be

liberally construed and relief should not be denied to the petitioner by

applying the technical rules of procedure embodied in the Code of Civil

Procedure and other procedural laws. In this context it will be profitable

to notice the observations made by this Court in Authorised Officer,

Thanjavur v. S Naganatha Ayyar (1979) 3 SCC 466, which are as

under:

"......It is true that Judges are constitutional invigilators

and statutory interpreters; but they are also responsive

and responsible to Part IV of the Constitution being one

of the trinity of the nation's appointed instrumentalities

in the transformation of the socio-economic order. The

judiciary, in its sphere, shares the revolutionary purpose

of the constitutional order, and when called upon to

decode social legislation must be animated by a goal-

oriented approach. This is part of the dynamics of

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statutory interpretation in the developing countries so

that courts are not converted into rescue shelters for those

who seek to defeat agrarian justice by cute transactions

of many manifestations now so familiar in the country

and illustrated by the several cases under appeal. This

caveat has become necessary because the judiciary is not

a mere umpire, as some assume, but an activist catalyst in

the constitutional scheme."

19. We may now advert to the ancillary question whether the High Court

was justified in non suiting the appellants on the ground that they failed to

discharge the primary burden of proving that the State Government had

invoked Section 17(1) and 17(4) without application of mind to the relevant

considerations. In this context, it is apposite to observe that while dealing

with challenge to the acquisition of land belonging to those who suffer from

handicaps of poverty, illiteracy and ignorance and do not have the resources

to access the material relied upon by the functionaries of the State and its

agencies for forming an opinion or recording a satisfaction that the urgency

provisions contained in Section 17(1) should be resorted to and/or the

enquiry envisaged under Section 5A should be dispensed with, the High

Court should not literally apply the abstract rules of burden of proof

enshrined in the Evidence Act. It is too much to expect from the rustic

villagers, who are not conversant with the intricacies of law and functioning

of the judicial system in our country to first obtain relevant information and

records from the concerned State authorities and then present skillfully

drafted petition for enforcement of his legal and/or constitutional rights. The

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Court should also bear in mind that the relevant records are always in the

exclusive possession/domain of the authorities of the State and/or its

agencies. Therefore, an assertion by the appellants that there was no

urgency in the acquisition of land; that the concerned authorities did not

apply mind to the relevant factors and records and arbitrarily invoked the

urgency provisions and thereby denied him the minimum opportunity of

hearing in terms of Section 5-A(1) and (2), should be treated as sufficient

for calling upon the respondents to file their response and produce the

relevant records to justify the invoking of urgency provisions.

20. In Narayan Govind Gavate v. State of Maharashtra (supra), the

three-Judge Bench of this Court examined the correctness of the judgment

of the Bombay High Court whereby the acquisition of land by the State

Government by issuing notification under Section 4 read with Section 17(1)

and 17(4) for development and utilisation as residential and industrial area

was quashed. The High Court held that the purpose of acquisition was a

genuine public purpose but quashed the notifications by observing that the

burden of proving the existence of circumstances which could justify

invoking of urgency clause was on the State, which it had failed to

discharge. Some of the observations made by the High Court, which have

been extracted in paragraphs 11 and 12 of the judgment of this Court, are

reproduced below.

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"When the formation of an opinion or the satisfaction of

an authority is subjective but is a condition precedent to

the exercise of a power, the challenge to the formation of

such opinion or to such satisfaction is limited, in law, to

three points only. It can be challenged, firstly, on the

ground of mala fides; secondly, on the ground that the

authority which formed that opinion or which arrived at

such satisfaction did not apply its mind to the material on

which it formed the opinion or arrived at the satisfaction,

and, thirdly, that the material on which it formed its

opinion or reached the satisfaction was so insufficient

that no man could reasonably reach that conclusion. So

far as the third point is concerned, no court of law can, as

in an appeal, consider that, on the material placed before

the authority, the authority was justified in reaching its

conclusion. The court can interfere only in such cases

where there was no material at all or the material was so

insufficient that no man could have reasonably reached

that conclusion.

In the case before us the petitioner has stated in the

petition more than once that the urgency clause had been

applied without any valid reason. The urgency clause in

respect of each of the said two notifications concerning

the lands in Groups 1 and 2 is contained in the relative

Section 4 notification itself. The public purpose stated in

the notification is `for development and utilization of the

said lands as an industrial and residential area'. To start

with, this statement itself is vague, in the sense that it is

not clear whether the development and utilization of the

lands referred to in that statement was confined to the

lands mentioned in the schedule to the notification or it

applied to a wider area of which such lands formed only

a part. So far as the affidavit in reply is concerned, no

facts whatever are stated. The affidavit only states that

the authority i.e. the Commissioner of the Bombay

Division was satisfied that the possession of the said

lands was urgently required for the purpose of carrying

out the said development. Even Mr Setalvad conceded

that the affidavit does not contain a statement of facts on

which the authority was satisfied or on which it formed

its opinion. It is, therefore, quite clear that the

respondents have failed to bring on record any material

22

whatever on which the respondents formed the opinion

mentioned in the two notifications. The notifications

themselves show that they concern many lands other than

those falling in the said first and third groups. It is not

possible to know what was the development for which

the lands were being acquired, much less is it possible to

know what were the circumstances which caused

urgency in the taking of possession of such lands. We

have held that the burden of proving such circumstances,

at least prima facie is on the respondents. As the

respondents have brought no relevant material on the

record, the respondents have failed to discharge that

burden. We must, in conclusion, hold that the urgency

provision under Section 17(4) was not validly resorted

to."

(emphasis supplied)

While dealing with the argument of the State that it was for the

petitioner to prove that there was no material to justify invoking of the

urgency clause, this Court observed:

"We do not think that a question relating to burden of proof is

always free from difficulty or is quite so simple as it is sought

to be made out here. Indeed, the apparent simplicity of a

question relating to presumptions and burdens of proof, which

have to be always viewed together is often deceptive. Over

simplification of such questions leads to erroneous statements

and misapplications of the law."

The Court then referred to the judgment in Woolmington v. Director

Public Prosecutions, 1935 AC 462, extensively quoted from Phipson on

Evidence (11th Edn), noticed Sections 101 to 106 of the Evidence Act and

observed:

23

"Coming back to the cases before us, we find that the

High Court had correctly stated the grounds on which

even a subjective opinion as to the existence of the need

to take action under Section 17(4) of the Act can be

challenged on certain limited grounds. But, as soon as we

speak of a challenge we have to bear in mind the general

burdens laid down by Sections 101 and 102 of the

Evidence Act. It is for the petitioner to substantiate the

grounds of his challenge. This means that the petitioner

has to either lead evidence or show that some evidence

has come from the side of the respondents to indicate that

his challenge to a notification or order is made good. If

he does not succeed in discharging that duty his petition

will fail. But, is that the position in the cases before us?

We find that, although the High Court had stated the

question before it to be one which "narrows down to the

point as to the burden of proof" yet, it had analysed the

evidence sufficiently before it to reach the conclusion

that the urgency provision under Section 17(4) had not

been validly resorted to.

... ... ...

... We think that the original or stable onus laid down by

Section 101 and Section 102 of the Evidence Act cannot

be shifted by the use of Section 106 of the Evidence Act,

although the particular onus of providing facts and

circumstances lying especially within the knowledge of

the official who formed the opinion which resulted in the

notification under Section 17 (4) of the Act rests upon

that official. The recital, if it is not defective, may

obviate the need to look further. But, there may be

circumstances in the case which impel the court to look

beyond it. And, at that stage, Section 106 Evidence Act

can be invoked by the party assailing an order or

notification. It is most unsafe in such cases for the

official or authority concerned to rest content which non-

disclosure of facts especially within his or its knowledge

by relying on the sufficiency of a recital. Such an attitude

may itself justify further judicial scrutiny.

... ... ...

In the cases before us, if the total evidence from

whichever side any of it may have come, was insufficient

24

to enable the petitioners to discharge their general or

stable onus, their petitions could not succeed. On the

other hand, if, in addition to the bare assertions made by

the petitioners, that the urgency contemplated by Section

17(4) did not exist, there were other facts and

circumstances, including the failure of the State to

indicate facts and circumstances which it could have

easily disclosed if they existed, the petitioners could be

held to have discharged their general onus.

... ... ...

It is also clear that, even a technically correct recital in an

order or notification stating that the conditions precedent

to the exercise of a power have been fulfilled may not

debar the court in a given case from considering the

question whether, in fact, those conditions have been

fulfilled. And, a fortiori, the court may consider and

decide whether the authority concerned has applied its

mind to really relevant facts of a case with a view to

determining that a condition precedent to the exercise of

a power has been fulfilled. If it appears, upon an

examination of the totality of facts in the case, that the

power conferred has been exercised for an extraneous or

irrelevant purpose or that the mind has not been applied

at all to the real object or purpose of a power, so that the

result is that the exercise of power could only serve some

other or collateral object, the court will interfere."

The Court finally held as under:

"..................There is no indication whatsoever in the

affidavit filed on behalf of the State the mind of the

Commissioner was applied at all to the question whether

it was a case necessitating the elimination of the enquiry

under Section5A of the Act. The recitals in the

notifications, on the other hand, indicate that elimination

of the enquiry under Section 5A of the Act was treated as

an automatic consequence of the opinion formed on other

matters. The recital does not say at all that any opinion

was formed on the need to dispense with the enquiry

under Section 5A of the Act. It is certainly a case in

25

which the recital was at least defective. The burden,

therefore, rested upon the State to remove the defect, if

possible, by evidence to show that some exceptional

circumstances which necessitated the elimination of an

enquiry under Section 5A of the Act and that the mind of

the Commissioner was applied to this essential question.

It seems to us that the High Court correctly applied the

provisions of Section 106 of the Evidence Act to place

the burden upon the State to prove those special

circumstances, although it also appears to us that the

High Court was quite correct in stating its view in such a

manner as to make it appear that some part of the initial

burden of the petitioners under Sections 101 and 102 of

the Evidence Act had been displaced by the failure of the

State to discharge its duty under Section 106 of the Act.

The correct way of putting it would have been to say that

the failure of the State to produce the evidence of facts

especially within the knowledge of its officials, which

rested upon it under Section 106 of the Evidence Act,

taken together with the attendant facts and circumstances

including the contents of recitals, had enabled the

petitioners to discharge their burden under Sections 101

and 102 of the Evidence Act."

(emphasis supplied)

21. The ratio of the aforesaid judgment was recently followed by the two-

Judge Bench in Anand Singh v. State of Uttar Pradesh (2010) 11 SCC

242.

22. We shall now consider whether there was any valid ground or

justification for invoking the urgency provision contained in Section 17(1)

and to exclude the application of Section 5A for the acquisition of land for

26

planned industrial development of the district. Sections 4, 5-A (as

amended), 6 and 17 of the Act which have bearing on this question read as

under:

"4. Publication of preliminary notification and power

of officers thereupon.- (1) Whenever it appears to the

appropriate Government that land in any locality is

needed or is likely to be needed for any public purpose or

for a company, a notification to that effect shall be

published in the Official Gazette and in two daily

newspapers circulating in that locality of which at least

one shall be in the regional language, and the Collector

shall cause public notice of the substance of such

notification to be given at convenient places in the said

locality (the last of the dates of such publication and the

giving of such public notice, being hereinafter referred to

as the date of the publication of the notification).

(2) Thereupon it shall be lawful for any officer, either

generally or specially authorized by such Government in

this behalf, and for his servants and workmen, -

to enter upon and survey and take levels of any land in

such locality; to dig or bore into the sub-soil;

to do all other acts necessary to ascertain whether the

land is adapted for such purpose;

to set out the boundaries of the land proposed to be taken

and the intended line of the work (if any) proposed to be

made thereon;

to mark such levels, boundaries and line by placing

marks and cutting trenches; and,

where otherwise the survey cannot be completed and the

levels taken and the boundaries and line marked, to cut

down and clear away any part of any standing crop, fence

or jungle;

27

Provided that no person shall enter into any

building or upon any enclosed court or garden attached to

a dwelling house (unless with the consent of the occupier

thereof) without previously giving such occupier at least

seven days' notice in writing of his intention to do so.

5A. Hearing of objections. - (1) Any person interested

in any land which has been notified under section 4, sub-

section (1), as being needed or likely to be needed for a

public purpose or for a company may, within thirty days

from the date of the publication of the notification, object

to the acquisition of the land or of any land in the

locality, as the case may be.

(2) Every objection under sub-section (1) shall be made

to the Collector in writing, and the Collector shall give

the objector an opportunity of being heard in person or

by any person authorized by him in this behalf or by

pleader and shall, after hearing all such objections and

after making such further inquiry, if any, as he thinks

necessary, either make a report in respect of the land

which has been notified under section 4, sub-section (1),

or make different reports in respect of different parcels of

such land, to the appropriate Government, containing his

recommendations on the objections, together with the

record of the proceedings held by him, for the decision of

that Government. The decision of the appropriate

Government on the objections shall be final.

(3) For the purpose of this section, a person shall be

deemed to be interested in land who would be entitled to

claim an interest in compensation if the land were

acquired under this Act.

6. Declaration that land is required for a public

purpose. - (1) Subject to the provisions of Part VII of

this Act, when the appropriate Government is satisfied,

after considering the report, if any, made under section

5A, sub-section (2), that any particular land is needed for

a public purpose, or for a Company, a declaration shall

be made to that effect under the signature of a Secretary

to such Government or of some officer duly authorized to

28

certify its orders, and different declarations may be made

from time to time in respect of different parcels of any

land covered by the same notification under section 4,

sub-section (1) irrespective of whether one report or

different reports has or have been made (wherever

required) under section 5A, sub-section (2):

Provided that no declaration in respect of any particular

land covered by a notification under section 4, sub-

section (1), -

(i) xx xx xx xx

(ii) published after the commencement of the Land

Acquisition (Amendment) Act, 1984, shall be made after

the expiry of one year from the date of the publication of

the notification:

Provided further that no such declaration shall be made

unless the compensation to be awarded for such property

is to be paid by a Company, or wholly or partly out of

public revenues or some fund controlled or managed by a

local authority.

Explanation 1. - In computing any of the periods referred

to in the first proviso, the period during which any action

or proceeding to be taken in pursuance of the notification

issued under section 4, sub-section (1), is stayed by an

order of a Court shall be excluded.

Explanation 2. - Where the compensation to be awarded

for such property is to be paid out of the funds of a

corporation owned or controlled by the State, such

compensation shall be deemed to be compensation paid

out of public revenues.

(2) Every declaration shall be published in the Official

Gazette, and in two daily newspapers circulating in the

locality in which the land is situate of which at least one

shall be in the regional language, and the Collector shall

cause public notice of the substance of such declaration

to be given at convenient places in the said locality (the

last of the date of such publication and the giving of such

public notice, being hereinafter referred to as the date of

the publication of the declaration), and such declaration

29

shall state the district or other territorial division in which

the land is situate, the purpose for which it is needed, its

approximate area, and, where a plan shall have been

made of the land, the place where such plan may be

inspected.

(3) The said declaration shall be conclusive evidence that

the land is needed for a public purpose or for a Company,

as the case may be; and, after making such declaration,

the appropriate Government may acquire the land in

manner hereinafter appearing.

17. Special powers in case of urgency. - (1) In cases of

urgency whenever the appropriate Government, so

directs, the Collector, though no such award has been

made, may, on the expiration of fifteen days from the

publication of the notice mentioned in section 9, sub-

section (1) take possession of any land needed for a

public purpose. Such land shall thereupon vest absolutely

in the Government, free from all encumbrances.

(2) Whenever, owing to any sudden change in the

channel of any navigable river or other unforeseen

emergency, it becomes necessary for any Railway

Administration to acquire the immediate possession of

any land for the maintenance of their traffic or for the

purpose of making thereon a river-side or ghat station, or

of providing convenient connection with or access to any

such station, or the appropriate Government considers it

necessary to acquire the immediate possession of any

land for the purpose of maintaining any structure or

system pertaining to irrigation, water supply, drainage,

road communication or electricity, the Collector may,

immediately after the publication of the notice mentioned

in sub-section (1) and with the previous sanction of the

appropriate Government, enter upon and take possession

of such land, which shall thereupon vest absolutely in the

Government free from all encumbrances:

Provided that the Collector shall not take possession of

any building or part of a building under this sub-section

without giving to the occupier thereof at least forty-eight

30

hours' notice of his intention so to do, or such longer

notice as may be reasonably sufficient to enable such

occupier to remove his movable property from such

building without unnecessary inconvenience.

(3) In every case under either of the preceding sub-

sections the Collector shall at that time of taking

possession offer to the persons interested compensation

for the standing crops and trees (if any) on such land and

from any other damage sustained by them caused by such

sudden dispossession and not excepted in section 24;

and, in case such offer is not accepted, the value of such

crops and trees and the amount of such other damage

shall be allowed for in awarding compensation for the

land under the provisions herein contained.

(3A) Before taking possession of any land under sub-

section (1) or sub-section (2), the Collector shall, without

prejudice to the provisions of sub-section (3)-

(a) tender payment of eighty per centum of the

compensation for such land as estimated by him to the

persons interested entitled thereto, and

(b) pay it to them, unless prevented by some one or

more of the contingencies mentioned in section 31, sub-

section (2),

and where the Collector is so prevented, the provisions of

section 31, sub-section (2), (except the second proviso

thereto), shall apply as they apply to the payment of

compensation under that section.

(3B) The amount paid or deposited under sub-section

(3A), shall be taken into account for determining the

amount of compensation required to be tendered under

section 31, and where the amount so paid or deposited

exceeds the compensation awarded by the Collector

under section 11, the excess may, unless refunded within

three months from the date of Collector's award, be

recovered as an arrear of land revenue.

(4) In the case of any land to which, in the opinion of the

31

appropriate Government, the provisions of sub-section

(1) or sub-section (2) are applicable, the appropriate

Government may direct that the provisions of section 5A

shall not apply, and, if it does so direct, a declaration may

be made under section 6 in respect of the land at any time

after the date of the publication of the notification under

section 4, sub-section (1).

Section 17 has been amended five times by the Uttar Pradesh

legislature. However, the only amendment which is relevant for deciding

this case is the insertion of proviso to Section 17(4) vide Uttar Pradesh Act

No.8 of 1974. That proviso reads as under:

"Provided that where in the case of any land, notification

under section 4, sub-section (1) has been published in the

Official Gazette on or after September 24, 1984 but

before January 11, 1989, and the appropriate

Government has under this sub-section directed that the

provisions of section 5A shall not apply, a declaration

under section 6 in respect of the land may be made either

simultaneously with, or at any time after, the publication

in the Official Gazette of the notification under section 4,

sub-section (1)."

23. ANALYSIS OF THE PROVISIONS:

Section 4(1) lays down that whenever it appears to the appropriate

Government that land in any locality is needed or is likely to be needed for

any public purpose or for a company, then a notification to that effect is

required to be published in the Official Gazette and two daily newspapers

having circulation in the locality. Of these, one paper has to be in the

regional language. A duty is also cast on the Collector, as defined in Section

32 3(c), to cause public notice of the substance of such notification to be given

at convenient places in the locality. The last date of publication and giving

of public notice is treated as the date of publication of the notification.

Section 4(2) lays down that after publication of the notification under

Section 4(1), any officer authorised by the Government in this behalf, his

servants or workmen can enter upon and survey and take levels of any land

in the locality or to dig or bore into the sub-soil and to do all other acts

necessary for ascertaining that land is suitable for the purpose of acquisition.

The concerned officer, his servants or workmen can fix the boundaries of

land proposed to be acquired and the intended line of the work, if any,

proposed to be made on it. They can also mark such levels and boundaries

by marks and cutting trenches and cut down and clear any part of any

standing crops, fence or jungle for the purpose of completing the survey and

taking level, marking of boundaries and line. However, neither the officer

nor his servants or workmen can, without the consent of the occupier, enter

into any building or upon any enclosed court or garden attached to a

dwelling house without giving seven days' notice to the occupier. Section

5A, which embodies the most important dimension of the rules of natural

justice, lays down that any person interested in any land notified under

Section 4(1) may, within 30 days of publication of the notification, submit

objection in writing against the proposed acquisition of land or of any land

in the locality to the Collector. The Collector is required to give the objector

33

an opportunity of being heard either in person or by any person authorized

by him or by pleader. After hearing the objector (s) and making such further

inquiry, as he may think necessary, the Collector has to make a report in

respect of land notified under Section 4(1) with his recommendations on the

objections and forward the same to the Government along with the record of

the proceedings held by him. The Collector can make different reports in

respect of different parcels of land proposed to be acquired. Upon receipt of

the Collector's report, the appropriate Government is required to take action

under Section 6(1) which lays down that after considering the report, if any,

made under Section 5-A (2), the appropriate Government is satisfied that

any particular land is needed for a public purpose, then a declaration to that

effect is required to be made under the signatures of a Secretary to the

Government or of some officer duly authorised to certify its orders. This

section also envisages making of different declarations from time to time in

respect of different parcels of land covered by the same notification issued

under Section 5(1). In terms of clause (ii) of proviso to Section 6(1), no

declaration in respect of any particular land covered by a notification issued

under Section 4(1), which is published after 24.9.1989 can be made after

expiry of one year from the date of publication of the notification. To put it

differently, a declaration is required to be made under Section 6(1) within

one year from the date of publication of the notification under Section 4(1).

In terms of Section 6(2), every declaration made under Section 6(1) is

34

required to be published in the official gazette and in two daily newspapers

having circulation in the locality in which land proposed to be acquired is

situated. Of these, at least one must be in the regional language. The

Collector is also required to cause public notice of the substance of such

declaration to be given at convenient places in the locality. The declaration

to be published under Section 6(2) must contain the district or other

territorial division in which land is situate, the purpose for which it is

needed, its approximate area or a plan is made in respect of land and the

place where such plan can be inspected. Section 6 (3) lays down that the

declaration made under Section 6(1) shall be conclusive evidence of the fact

that land is needed for a public purpose. After publication of the declaration

under Section 6, the Collector is required to take order from the State

Government for the acquisition of land to be carved out and measured and

planned (Sections 7 and 8). The next stage as envisaged is issue of public

notice and individual notice to the persons interested in land to file their

claim for compensation. Section 11 envisages holding of an enquiry into the

claim and passing of an award by the Collector who is required to take into

consideration the provisions contained in Section 23. Section 16 lays down

that after making an award the Collector can take possession of land which

shall thereafter vest in the Government. Section 17(1) postulates taking of

possession of land without making an award. If the appropriate Government

decides that land proposed to be acquired is urgently needed for a public

35

purpose then it can authorise the competent authority to take possession.

Section 17(2) contemplates a different type of urgency in which, the State

Government can authorise taking of possession even before expiry of 15

days period specified in Section 9 (1). Section 17(4) lays down that in cases

where appropriate Government comes to the conclusion that there is

existence of an urgency or unforeseen emergency, it can direct that

provisions of Section 5-A shall not apply.

24. Before adverting to the precedents in which Section 5A has been

interpreted by this Court, it will be useful to notice development of the law

relating to the rule of hearing. In the celebrated case of Cooper v.

Wandsworth Board of Works (1863) 143 ER 414, the principle was stated

thus:

"Even God did not pass a sentence upon Adam, before he was

called upon to make his defence. "Adam" says God, "where art

thou? hast thou not eaten of the tree whereof I commanded

thee that thou shouldest not eat".

Therein the District Board had brought down the house of the plaintiff's

(Cooper), because he had failed to comply with The Metropolis Local

Management Act. The Act required the plaintiff to notify the board seven

days before starting to build the house. Cooper argued that even though the

board had the legal authority to tear his house down, no person should be

deprived of their property without notice. In spite of no express words in the

36

statute the court recognized the right of hearing before the plaintiff's house

built without permission was demolished in the exercise of statutory powers.

Byles J stated:

`Although there are not positive words in a statute

requiring that the party shall be heard, yet the

justice of the common law shall supply the

omission of the legislature'.

25. Perhaps the best known statement on the right to be heard has come

from Lord Loreburn, L.C. in Board of Education v. Rice (1911 AC 179 at

182), where he observed:

"Comparatively recent statutes have extended, if they have

originated, the practice of imposing upon departments or offices

of State the duty of deciding or determining questions of

various kinds...In such cases... they must act in good faith and

fairly listen to both sides, for that is a duty lying upon everyone

who decides anything. But I do not think they are bound to

treat such questions as though it were a trial ...they can obtain

information in any way they think best, always giving a fair

opportunity to those who are parties in the controversy for

correcting or contradicting any relevant statement prejudicial in

their view."

26. In Ridge v. Baldwin 1964 AC 40 Lord Reid emphasized on the

universality of the right to a fair hearing whether it concerns the property or

tenure of an office or membership of an institution. In O'Reilly v.

Mackman 1983 2 AC 237, Lord Diplock said that the right of a man to be

given a fair opportunity of hearing, what is alleged against him and of

37

presenting his own case is so fundamental to any civilized legal system that

it is to be presumed that Parliament intended that failure to observe the same

should render null and void any decision reached in breach of this

requirement. In Lloyd v. Mcmahon 1987 AC 625 Lord Bridge said:

"My Lords, the so-called rules of natural justice are not

engraved on tablets of stone. To use the phrase which better

expresses the underlying concept, what the requirements of

fairness demand when any body, domestic, administrative or

judicial, has to make a decision which will affect the rights of

individuals depends on the character of the decision-making

body, the kind of decision it has to make and the statutory or

other framework in which it operates. In particular, it is well-

established that when a statute has conferred on any body the

power to make decisions affecting individuals, the courts will

not only require the procedure prescribed by the statute to be

followed, but will readily imply so much and no more to be

introduced by way of additional procedural safeguards as will

ensure the attainment of fairness."

27. In the United States, principles of natural justice usually find support

from the Due Process clause of the Constitution. The extent of due process

protection required is determined by a number of factors; first the private

interest that will be affected by the official action; second, the risk of an

erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural requirement

would entail.

38

28. The amplitude, ambit and width of the rule of audi alteram partem

was lucidly stated 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

decision than the practice of giving hearing to the

affected parties."

29. In Mohinder Singh Gill v. Chief Election Commissioner (1978) 1

SCC 405, Krishna Iyer J. speaking for himself, Beg CJ and Bhagwati J.

highlighted the importance of rule of hearing in the following words:

"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 Arthasastra -- 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

39

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

opportunity to present or meet a case. Text-book 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."

30. 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

40

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 r ule 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."

(emphasis supplied)

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

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

must be complied with even when the Government exercises power under

Section 18AA of the Industries (Development & 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 (supra), A.K. Kraipak vs. Union of India (1969) 2

41

SCC 262, Mohinder Singh Gill v. Union of India (supra), Maneka

Gandhi v. Union of India (supra) and State of Orissa v Dr. Bina Pani 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 matter for fresh consideration

and compliance of the rule of audi alteram partem.

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

Judge Bench of this Court emphasised the importance of Section 5A 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:

[See Section 17(4) of the Acquisition Act.]"

42

33. In State of Punjab v. Gurdial Singh (1980) 2 SCC 471, Krishna Iyer

J. emphasized the necessity of reasonableness and fairness in the State action

of invoking the urgency provision in the following words:

"16..........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."

34. In Shyam Nandan Prasad v. State of Bihar (1993) 4 SCC 255, this

Court reiterated that the compliance of Section 5A is mandatory and

observed as under:

"10............The decision of the Collector is supposedly final

unless the appropriate Government chooses to interfere therein

and cause affectation, suo motu or on the application of any

person interested in the land. These requirements obviously

lead to the positive conclusion that the proceeding before the

Collector is a blend of public and individual enquiry. The

person interested, or known to be interested, in the land is to be

served personally of the notification, giving him the opportunity

of objecting to the acquisition and awakening him to such right.

That the objection is to be in writing, is indicative of the fact

that the enquiry into the objection is to focus his individual

cause as well as public cause. That at the time of the enquiry,

for which prior notice shall be essential, the objector has the

right to appear in person or through pleader and substantiate his

objection by evidence and argument."

43

35. The ratio of Munshi Singh v. Union of India (supra) has

been reiterated and followed in Union of India v. Mukesh Hans (2004)

8 SCC 14, Hindustan Petroleum Corporation Limited v. Darius

Shapur Chenai (2005) 7 SCC 627 and Anand Singh v. State of Uttar

Pradesh (supra).

36. The acquisition of land under Section 4 read with Section

17(1) and/or 17(4) has generated substantial litigation in last 50 years.

One of the earliest judgments on the subject is Nandeshwar Prasad v.

The State of Uttar Pradesh (1964) 3 SCR 425. In that case, the

acquisition of land for construction of tenements for the 4th phase of

subsidized industrial housing scheme sponsored by the State

Government, as also for general improvement and street Scheme No.XX

of Kanpur Development Board by issuing notification under Section 4

read with Section 17(1), (1-A) and 17(4) was challenged. The learned

Single Judge and the Division Bench of the Allahabad High Court

negatived the appellants' challenge by observing that once Section 17 is

invoked, there was no necessity to hold enquiry under Section 5A. This

Court set aside the order of the Division Bench of the High Court and

held:

"It will be seen that Section 17(1) gives power to the

Government to direct the Collector, though no award has been

44

made under Section11, to take possession of any waste or

arable land needed for public purpose and such land thereupon

vests absolutely in the Government free from all encumbrances.

If action is taken under Section 17(1), taking possession and

vesting which are provided in Section 16 after the award under

Section 11 are accelerated and can take place fifteen days after

the publication of the notice under Section 9. Then comes

Section 17(4) which provides that in case of any land to which

the provisions of sub-section (1) are applicable, the

Government may direct that the provisions of Section 5-A shall

not apply and if it does so direct, a declaration may be made

under Section 6 in respect of the land at any time after the

publication of the notification under Section 4(1). It will be

seen that it is not necessary even where the Government makes

a direction under Section 17(1) that it should also make a

direction under Section 17(4). If the Government makes a

direction only under Section 17(1) the procedure under Section

5-A would still have to be followed before a notification under

Section 6 is issued, though after that procedure has been

followed and a notification under Section 6 is issued the

Collector gets the power to take possession of the land after the

notice under Section 9 without waiting for the award and on

such taking possession the land shall vest absolutely in

Government free from all encumbrances. It is only when the

Government also makes a declaration under Section 17 (4) that

it becomes unnecessary to take action under Section 5-A and

make a report thereunder. It may be that generally where an

order is made under Section 17(1), an order under Section 17(4)

is also passed; but in law it is not necessary that this should be

so. It will also be seen that under the Land Acquisition Act an

order under Section 17(1) or Section 17(4) can only be passed

with respect to waste or arable land and it cannot be passed

with respect to land which is not waste or arable and on which

buildings stand."

(emphasis supplied)

37. In Raja Anand Brahma Shah v. State of Uttar Pradesh (1967) 1

SCR 373, the Constitution Bench considered the legality of the acquisition

45

of 409.6 acres of land in village Markundi Ghurma, Pargana Agori for a

public purpose i.e. for limestone quarry. The State Government invoked

Section 17(1) and 17(4), dispensed with requirement of hearing envisaged

under Section 5-A and directed the Collector and District Magistrate,

Mirzapur to take the possession of land. The Allahabad High Court

dismissed the writ petition filed by the appellant by observing that the Court

cannot interfere with the subjective satisfaction reached by the State

Government on the issue of urgency. This Court agreed with the High Court

that the acquisition was for a public purpose but held that the expression of

opinion by the State Government on the issue of invoking urgency provision

can be challenged on the ground of non application of mind or mala fides. The Court relied upon the judgments in King Emperor v. Shibnath

Banerjee, Criminal Appeal No.110 of 1966 decided on July 27, 1966;

Jaichand Lal Sethia v. State of West Bengal (1958) 1 WLR 546; Estate

and Trust Agencies Ltd. v. Singapore Improvement Trust (1914) 1 Ch

438; Ross Clunis v. Papadopoullos 44 1A 117 and R. v. Australian

Stevedoring Industry Board 39 1A 133 and observed:

"It is true that the opinion of the State Government which is a

condition for the exercise of the power under Section 17 (4) of

the Act, is subjective and a court cannot normally enquire

whether there were sufficient grounds or justification of the

opinion formed by the State Government under Section 17(4).

The legal position has been explained by the Judicial

Committee in King Emperor v. Shibnath Banerjee and by this

Court in a recent case - Jaichand Lal Sethia v. State of West

Bengal. But even though the power of the State Government

46

has been formulated under Section 17(4) of the Act in

subjective terms the expression of opinion of the State

Government can be challenged as ultra vires in a court of law if

it could be shown that the State Government never applied it

mind to the matter or that the action of the State Government is

mala fide. If therefore in a case the land under acquisition is

not actually waste or arable land but the State Government has

formed the opinion that the provisions of sub-section (1) of

Section 17 are applicable, the court may legitimately draw an

inference that the State Government did not honestly form that

opinion or that in forming that opinion the State Government

did not apply its mind to the relevant facts bearing on the

question at issue. It follows therefore that the notification of the

State Government under Section 17 (4) of the Act directing that

the provisions of Section 5-A shall not apply to the land is ultra

vires."

(emphasis supplied)

38. In Narayan Govind Gavate v. State of Maharashtra (supra), this

Court while approving the judgment of the Bombay High Court, which

quashed the acquisition made under Section 4 read with Section 17(1) and

17(4) held as under:

"38. Now, the purpose of Section 17(4) of the Act is, obviously,

not merely to confine action under it to waste and arable land

but also to situations in which an inquiry under Section 5-A will

serve no useful purpose, or, for some overriding reason, it

should be dispensed with. The mind of the officer or authority

concerned has to be applied to the question whether there is an

urgency of such a nature that even the summary proceedings

under Section 5-A of the Act should be eliminated. It is not just

the existence of an urgency but the need to dispense with an

inquiry under Section 5-A which has to be considered.

40. In the case before us, the public purpose indicated is the

development of an area for industrial and residential purposes.

This, in itself, on the face of it, does not call for any such

47

action, barring exceptional circumstances, as to make

immediate possession, without holding even a summary

enquiry under Section 5-A of the Act, imperative. On the other

hand, such schemes generally take sufficient period of time to

enable at least summary inquiries under Section 5-A 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 5-A of

the Act.

42. 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 5-A of the

Act......................."

(emphasis supplied)

39. The next judgment which deserves to be mentioned is Om Prakash v

State of U.P. (supra). In 1976, NOIDA acquired large tracts of land in

different villages of Ghaziabad District including village Chhalera Banger

for planned industrial development of Ghaziabad. On being approached by

NOIDA, the State Government invoked Section 17 (1) and 17(4) on the

ground that the land was urgently required. In 1987, more lands were

acquired from the same village by issuing notification under Section 4. This

time the land owners were given opportunity to file their objections and after

considering the same, the State Government issued notification under

Section 6 for the acquisition of 353 acres land. In 1988, NOIDA submitted

48

fresh proposal for the acquisition of land belonging to the appellants and

others (total land measuring 294.26 acres). The State Government issued

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

clearly indicating therein that Section 5-A was not applicable. The writ

petitions filed by the land owners were dismissed by the High Court. After

noticing the arguments of the learned counsel for the parties, this Court

framed the following questions.

"1. Whether the State authorities were justified in

invoking Section 17(4) of the Act for dispensing with

inquiry under Section 5-A of the Act.

2. In any case, whether the appellants' lands have to

be treated as immune from acquisition proceedings on

the ground that they were having abadi thereon and were,

therefore, governed by the policy decision of the State of

U.P. not to acquire such lands.

3. Whether this Court should refuse to exercise its

discretionary jurisdiction under Article 136 of the

Constitution of India in the facts and circumstances of

the case.

4. What final orders."

While dealing with question No.1, the Court noticed the scheme of

Section 17, referred to the pleadings of the parties, and the judgments in

State of U.P. v. Pista Devi (supra), Narayan Govind Gavate v. State of

Maharashtra (supra), Rajasthan Housing Board v. Shri Kishan (1993) 2

SCC 84, State of Punjab v. Gurdial Singh (supra), Nandeshwar Prasad

v. U.P. Govt. (supra), A.P. Sareen v. State of U.P. (1997) 9 SCC 359,

Ghaziabad Development Authority v. Jan Kalyan Samiti (1996) 2 SCC

49

365, Jai Narain v. Union of India (1996) 1 SCC 9 and held that the

decision to dispense with the inquiry envisaged under Section 5-A was not

based on any real and genuine subjective satisfaction. In the process, the

Court noted that in 1989 the State Government had not resorted to Section

17 and the acquisition proceedings were finalized after holding inquiry

under Section 5-A and observed:

"We were informed by Senior Counsel Shri Mohta for NOIDA

that even though in the earlier acquisition of 1987 pursuant to

Section 4 notification, inquiry under Section 5-A was not

dispensed with, by the time Section 6 notification came to be

issued, Section 17(1) was resorted to as urgency had developed

at least by the end of December 1989. If that be so, it was

expected that pursuant to the requisition of 14-12-1989 by

NOIDA invoking urgency powers of the State Government,

consequential notification under Section 4(1) would have seen

the light of day at the earliest in connection with acquisition of

the proposed 494.26 acres of land for the development of

Sector 43 and other sectors. But curiously enough, nothing

happened urgently and Section 4 notification which is

impugned in the present case was issued on 5-1-1991. Thus

despite the invocation of urgency by NOIDA by its letter dated

14-12-1989, it appears that the State did not think the said

proposal to be so urgent as to immediately respond and to issue

notification under Section 4 read with Section 17 sub-section

(4) till 5-1-1991. More than one year elapsed in the meantime.

Why this delay took place and why the State did not think it fit

to urgently respond to the proposal of NOIDA, has remained a

question mark for which there is no answer furnished by the

respondent-authorities in the present cases and nothing is

brought on the record by them to explain the delay. It has,

therefore, necessarily to be presumed that despite the

emergency powers of the State Government being invoked by

NOIDA, the State authorities in their wisdom did not think the

matter to be so urgent as to immediately respond and promptly

issue Section 4 notification read with Section 17(4).

... .... ...

50

Even that apart, despite proposal to acquire this land was

moved by NOIDA as early as on 14-6-1988, and even thereafter

when the request was sent in this communication on 14-12-

1989, the State authorities did not think the situation to be so

urgent as to respond quickly and could wait for more than one

year. When the appellants in the writ petitions before the High

Court raised their grievances regarding dispensing with inquiry

under Section 5-A being not backed up by relevant evidence

and the subjective satisfaction of the State in this connection

was brought in challenge, all that was stated by NOIDA in its

counter in para 26 was to the effect that the contents of paras 25

and 26 of the writ petition were denied and that the petitioners

were not able to point out any lacunae in the proceedings under

the Land Acquisition Act. The position was no better so far as

the counter of the State authorities was concerned. In para 24 of

the counter before the High Court, all that was stated was that

paras 25 and 26 of the writ petition were denied. When we turn

to paras 25 and 26 of the writ petition, we find averments to the

effect that the urgency of the acquisition was only for the

purpose of depriving the petitioners of their rights to file

objections under Section 5-A and their right to hold the

possession till they got compensation for which the respondents

had issued notification under Section 17(1) as well as

notification Section 17(4) of the Act. But so far as the process

of the acquisition was concerned, the respondents were taking

their own time, which would be evident from the fact that the

notification under Section 4 read with Section 17(4) was issued

on 5-1-1991 but was published in the newspaper on 30-3-

1991, whereas the declaration under Section 6 of the Act was

made on 7-1-1992 and that on the one hand, the respondents

had deprived the petitioners of filing their objections under

Section 5-A of the Act on the ground of urgency of acquisition,

but on the other hand, they themselves had taken more than

nine months in issuing the declaration under Section 6 of the

said Act. This conduct of the respondents falsified their claim

of urgency of acquisition.

... ... ...

The additional material which was produced before the High

Court was by way of Annexures CA-3, CA-4 and CA-5. When

we turn to these annexures, we find that AnnexureCA-3 is a

letter dated 21-4-1990 written by the District Magistrate,

Ghaziabad, to the Joint Secretary, Industries, Government of

51

Uttar Pradesh. It recites that on examination, it was found that

the land was immediately required in public interest so that the

development work in the said land could be carried out

smoothly. What was the nature of urgency is not mentioned in

the said letter. Therefore, the position remains as vague as it

was earlier. When we turn to Annexure CA-4 which is dated

12-6-1990, we find that the District Magistrate, Ghaziabad

wrote to the Joint Secretary, Industries, State of U.P., that as to

how many farmers were going to be affected by the proposed

acquisition. It does not even whisper about the urgency of the

situation which requires dispensing with Section 5-A inquiry.

The last, Annexure CA-5 is the letter dated 14-12-1989 written

by NOIDA to the Land Acquisition Officer proposing urgent

acquisition of the lands in question. We have already made a

reference to the said letter. It recites that if immediate action for

acquisition of the aforesaid lands adjacent to Sector 43 for

development of which the acquisition was to be resorted to was

not taken, then there was possibility of encroachment over the

area cannot by any stretch of imagination be considered to be a

germane ground for invoking urgency powers for dispensing

with Section 5-A inquiry. Even if acquisition takes place

urgently by dispensing with inquiry under Section 5-A and the

possession is taken urgently after Section 6 notification within

15 days of issuance of notice under Section 9 sub-section (1),

even then there is no guarantee that the acquired land would not

be encroached upon by unruly persons. It is a law and order

problem which has nothing to do with the acquisition and

urgency for taking possession. Even that apart, it is easy to

visualize that if objectors are heard in connection with Section

5-A inquiry they would be the best person to protect their

properties against encroachers. Consequently, the ground put

forward by NOIDA in its written request dated 14-12-1989 for

invoking urgency powers must be held to be totally

irrelevant."

(emphasis supplied)

40. We may now notice some recent decisions. In Union of India vs.

Mukesh Hans (supra), this Court interpreted Sections 5-A and 17 and

observed:

52

"32. A careful perusal of this provision which is an exception to

the normal mode of acquisition contemplated under the Act

shows that mere existence of urgency or unforeseen emergency

though is a condition precedent for invoking Section 17(4), that

by itself is not sufficient to direct the dispensation of the

Section 5-A inquiry. It requires an opinion to be formed by the

Government concerned that along with the existence of such

urgency or unforeseen emergency there is also a need for

dispensing with Section 5-A inquiry which indicates that the

legislature intended the appropriate Government to apply its

mind before dispensing with Section 5-A inquiry. It also

indicates that mere existence of an urgency under Section 17(1)

or unforeseen emergency under Section 17(2) would not by

itself be sufficient for dispensing with Section 5-A inquiry. If

that was not the intention of the legislature then the latter part

of sub-section (4) of Section 17 would not have been necessary

and the legislature in Sections 17(1) and (2) itself could have

incorporated that in such situation of existence of urgency or

unforeseen emergency automatically Section 5-A inquiry will

be dispensed with. But then that is not the language of the

section which in our opinion requires the appropriate

Government to further consider the need for dispensing with

Section 5-A inquiry in spite of the existence of unforeseen

emergency.

33. An argument was sought to be advanced on behalf of the

appellants that once the appropriate Government comes to the

conclusion that there is an urgency or unforeseen emergency

under Sections 17(1) and (2), the dispensation with inquiry

under Section 5-A becomes automatic and the same can be

done by a composite order meaning thereby that there is no

need for the appropriate Government to separately apply its

mind for any further emergency for dispensation with an

inquiry under Section 5-A. We are unable to agree with the

above argument because sub-section (4) of Section 17 itself

indicates that the "Government may direct that the p rovisions of

Section 5-A shall not apply" (emphasis supplied) which makes

it clear that not in every case where the appropriate

Government has come to the conclusion that there is urgency

and under sub-section (1) or unforeseen emergency under sub-

section (2) of Section 17, the Government will ipso facto have

to direct the dispensation of the inquiry."

(emphasis supplied)

53

41. In Union of India v. Krishan Lal Arneja (2004) 8 SCC

453, this Court approved quashing of the acquisition proceedings by the

High Court and observed:

"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 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

54

or support for the laxity, lethargy or lack of care on the part of

the State administration."

(emphasis supplied)

42. In Esso Fabs Private Limited vs. State of Haryana (supra), the

Court again dealt with the question whether the State was justified in

invoking Section 17(1) and 17(4) and dispensing with the inquiry under

Section 5-A and held:

"53. Section 17, no doubt, deals with special situations and

exceptional circumstances covering cases of "urgency" and

"unforeseen emergency". In case of "urgency" falling under

sub-section (1) of Section 17 or of "unforeseen emergency"

covered by sub-section (2) of Section 17, special powers may

be exercised by appropriate Government but as held by a three-

Judge Bench decision before more than four decades in

Nandeshwar Prasad and reiterated by a three-Judge Bench

decision in Mukesh Hans, even in such cases, inquiry and

hearing of objections under Section 5-A cannot ipso facto be

dispensed with unless a notification under sub-section (4) of

Section 17 of the Act is issued. The legislative scheme is amply

clear which merely enables the appropriate Government to

issue such notification under sub-section (4) of Section 17 of

the Act dispensing with inquiry under Section 5-A if the

Government intends to exercise the said power. The use of the

expression "may" in sub-section (4) of Section 17 leaves no

room of doubt that it is a discretionary power of the government

to direct that the provisions of Section 5-A would not apply to

such cases covered by sub-section (1) or (2) of Section 17 of

the Act.

54. In our opinion, therefore, the contention of learned

counsel for the respondent authorities is not well founded and

cannot be upheld that once a case is covered by sub-section (1)

or (2) of Section 17 of the Act, sub-section (4) of Section 17

would necessarily apply and there is no question of holding

inquiry or hearing objections under Section 5-A of the Act.

Acceptance of such contention or upholding of this argument

55

will make sub-section (4) of Section 17 totally otiose,

redundant and nugatory."

(emphasis supplied)

43. In Babu Ram v. State of Haryana (2009) 10 SCC 115, this Court

reversed the judgment of the High Court and quashed the notification issued

by the State Government under Section 4 read with Section 17(1) and 17(4)

for the acquisition of land for construction of sewage treatment plant. After

noticing the judgments in State of Punjab v. Gurdial Singh (supra), Om

Prakash v. State of U.P. (supra) and Union of India v. Krishan Lal Arneja

(supra), the Court observed:

"As indicated hereinabove in the various cases cited by

Mr.Pradip Ghosh and, in particular, the decision in Krishan Lal

Arneja case, in which reference has been made to the

observations made by this Court in Om Prakash case, 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 observations had

been made in reference to an observation made in the earlier

decision in Gurdial Singh case 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 LA Act."

44. In Anand Singh v. State of U.P. (supra), the two-Judge Bench

considered the question whether the State Government was justified in

invoking Section 17(4) for the acquisition of land for residential colony to

56

be constructed by Gorakhpur Development Authority, Gorakhpur. The Court

noted that notifications under Section 4(1) read with Section 17(1) and 17(4)

were issued on November 23, 2003 and February 20, 2004 and declaration

under Section 6 was issued on December 24, 2004, referred to 16 judicial

precedents including those noticed hereinabove and held:

"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.

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.

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,

57

the judicial review of such administrative decision may become

necessary.

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 realizing 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.

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 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.

As regards the issue whether pre-notification and post-

notification delay would render the invocation of urgency

power void, again the case law is not consistent. The view of

this Court has differed on this aspect due to different fact

situation prevailing in those cases. In our opinion such delay

will have material bearing on the question of invocation of

urgency power, particularly in a situation where no material has

been placed by the appropriate Government before the Court

justifying that urgency was of such nature that necessitated

elimination of enquiry under Section 5-A."

(emphasis supplied)

58

45. In Civil Appeal No.2334 of 2011, Dev Sharan v. State of U.P.,

decided on March 7, 2011, the acquisition of land for construction of district

jails was quashed on the ground that there was no valid ground or

justification to exclude the application of Section 5-A of the Act and it was

observed:

"...Admittedly, the Land Acquisition Act, a pre-Constitutional

legislation of colonial vintage is a drastic law, being

expropriatory in nature as it confers on the State a power which

affects person's property right. Even though right to property is

no longer fundamental and was never a natural right, and is

acquired on a concession by the State, it has to be accepted that

without right to some property, other rights become illusory.

This Court is considering these questions, especially, in the

context of some recent trends in land acquisition. This Court is

of the opinion that the concept of public purpose in land

acquisition has to be viewed from an angle which is consistent

with the concept of a welfare State.

The concept of public purpose cannot remain static for all time

to come. The concept, even though sought to be defined under

Section 3(f) of the Act, is not capable of any precise definition.

The said definition, having suffered several amendments, has

assumed the character of an inclusive one. It must be accepted

that in construing public purpose, a broad and overall view has

to be taken and the focus must be on ensuring maximum benefit

to the largest number of people. Any attempt by the State to

acquire land by promoting a pubic purpose to benefit a

particular group of people or to serve any particular interest at

the cost of the interest of a large section of people especially of

the common people defeats the very concept of public purpose.

Even though the concept of public purpose was introduced by

pre-Constitutional legislation, its application must be consistent

with the constitutional ethos and especially the chapter under

Fundamental Rights and also the Directive Principles.

In construing the concept of public purpose, the mandate of

Article 13 of the Constitution that any pre-constitutional law

59

cannot in any way take away or abridge rights conferred under

Part-III must be kept in mind. By judicial interpretation the

contents of these Part III rights are constantly expanded. The

meaning of public purpose in acquisition of land must be

judged on the touchstone of this expanded view of Part-III

rights. The open-ended nature of our Constitution needs a

harmonious reconciliation between various competing

principles and the overhanging shadows of socio-economic

reality in this country.

Therefore, the concept of public purpose on this broad horizon

must also be read into the provisions of emergency power under

Section 17 with the consequential dispensation of right of

hearing under Section 5A of the said Act. The Courts must

examine these questions very carefully when little Indians lose

their small property in the name of mindless acquisition at the

instance of the State. If public purpose can be satisfied by not

rendering common man homeless and by exploring other

avenues of acquisition, the Courts, before sanctioning an

acquisition, must in exercise of its power of judicial review,

focus its attention on the concept of social and economic

justice. While examining these questions of public importance,

the Courts especially the Higher Courts, cannot afford to act as

mere umpires. "

46. To be fair to the respondents, we may also notice the judgments in

which the decision of the State to invoke Section 17(1) and/or 17(4) has

been upheld. In State of U.P. v. Pista Devi (supra), this Court examined the

justification of invoking Section 17(1) and 17(4) of the Act for the

acquisition of over 662 Bighas land situated in village Mukarrabpur, District

Meerut for providing housing accommodation. The two-Judge Bench

distinguished the three-Judge Bench judgment in Narayan Govind Gavate

v. State of Maharashtra (supra), by observing that after that decision,

population of India had gone up by hundreds of millions and it was no

60

longer possible for the Court to take the view that the schemes of

development of residential areas do not appear to demand such emergent

action as to eliminate summary inquiries under Section 5-A of the Act.

47. In Rajasthan Housing Board v. Shri Kishan (supra), this Court set

aside the judgment of the majority of Full Bench of the High Court, which

had quashed the acquisition of 2570 bighas land by the State Government by

invoking Sections 17(1) and 17(4) of the Act for the benefit of appellant

Rajasthan Housing Board and observed:

"The material placed before the Court disclosed that the

Government found, on due verification, that there was an acute

scarcity of land and there was heavy pressure for construction of

houses for weaker sections and middle income group people; that

the Housing Board had obtained a loan of Rs 16 crores under a

time-bound programme to construct and utilise the said amount

by March 31, 1983; that in the circumstances the Government

was satisfied that unless possession was taken immediately, and

the Housing Board permitted to proceed with the construction,

the Board will not be able to adhere to the time-bound

programme. In addition to the said fact, the Division Bench

referred to certain other material also upon which the

Government had formed the said satisfaction viz., that in view of

the time-bound programme stipulated by the lender, HUDCO, the

Board had already appointed a large number of engineers and

other subordinate staff for carrying out the said work and that

holding an inquiry under Section 5-A would have resulted in

uncalled for delay endangering the entire scheme and time-

schedule of the Housing Board. If must be remembered that the

satisfaction under Section 17(4) is a subjective one and that so

long as there is material upon which the Government could have

formed the said satisfaction fairly, the Court would not interfere

nor would it examine the material as an appellate authority. This

is the principle affirmed by decisions of this Court not under

61 Section 17(4) but also generally with respect to subjective

satisfaction."

48. In Chameli Singh v. State of U.P. (supra), the three-Judge Bench

upheld the acquisition of land under Sections 17 (1A) and 17(4) by

observing that the problem of providing houses to the dalits, tribes and poor

needed emergency measures and so long as the problem is not solved and

the need of that segment of the society is not fulfilled, the urgency continues

to subsist.

49. In First Land Acquisition Collector v. Nirodhi Prakash Gangoli

(2002) 4 SCC 160, the Court upheld the acquisition of land for Calcutta

Medical College under Section 17(1) and 17(4) and observed:

"By no stretch of imagination, exercise of power for acquisition

can be held to be mala fide, so long as the purpose of

acquisition continues and as has already been stated, there

existed emergency to acquire the premises in question. The

premises which were under occupation of the students of

National Medical College, Calcutta, were obviously badly

needed for the College and the appropriate authority having

failed in their attempt earlier twice, the orders having been

quashed by the High Court, had taken the third attempt of

issuing notification under Sections 4(1) and 17(4) of the Act,

such acquisition cannot be held to be mala fide and, therefore,

the conclusion of the Division Bench in the impugned judgment

that the acquisition is mala fide, must be set aside and we

accordingly set aside the same."

62

50. In Tika Ram v. State of Uttar Pradesh (2009) 10 SCC 689, the two-

Judge Bench mainly considered the questions relating to constitutional

validity of the Uttar Pradesh Act nos. 8 of 1974 and 5 of 1991 by which

amendments were made in Section 17 of the Act. An ancillary question

considered by the Court was whether the State Government was justified in

invoking the urgency provision. The Bench referred to some of the

precedents on the subject and refused to quash the acquisition by observing

that the acquired land has already been utilized for construction of houses by

third parties.

51. In Nand Kishore Gupta v. State of Uttar Pradesh (2010) 10 SCC

282, the acquisition of land for construction of Yamuna Expressway was

upheld and challenge to the decision of the State Government to dispense

with the inquiry was negatived by making the following observations:

"We have deliberately quoted the above part of the High Court

judgment only to show the meticulous care taken by the High

Court in examining as to whether there was material before the

State Government to dispense with the enquiry under Section 5-

A of the Act. We are completely convinced that there was

necessity in this Project considering the various reasons like

enormousness of the Project, likelihood of the encroachments,

number of appellants who would have required to be heard and

the time taken for that purpose, and the fact that the Project had

lingered already from 2001 till 2008. We do not see any reason

why we should take a different view than what is taken by the

High Court."

63

52. What is important to be noted is that in none of the aforementioned

judgments, the Court was called upon to examine the legality and/or

justification of the exercise of power under Section 17(1) and/or 17(4) for

the acquisition of land for residential, commercial or industrial purpose. In

State of U.P. v. Pista Devi (supra), Rajasthan Housing Board v. Shri

Kishan (supra) and Chameli Singh v. State of U.P. (supra), the invoking of

urgency provision contained in Section 17(1) and exclusion of Section 5-A

was approved by the Court keeping in view the acute problem of housing,

which was perceived as a national problem and for the solution of which

national housing policy was framed and the imperative of providing cheaper

shelter to dalits, tribals and other disadvantaged sections of the society. In

First Land Acquisition Collector v. Nirodhi Prakash Gangoli (supra), the

exercise of power under Section 17 was found to be justified because the

land was already in the possession of the medical college and the earlier

exercise undertaken by the State for the acquisition of land got frustrated due

to intervention of the Court. The factor, which influenced this Court to

approve the judgment of the High Court in Tika Ram v. State of Uttar

Pradesh (supra) was that the acquired land had already been utilized for

construction of houses by third parties to whom the plots had been allotted

and they were not parties to the litigation. In Nand Kishore Gupta v. State

of U. P. (supra), the acquisition was upheld because the land was urgently

needed for construction of Yamuna Expressway and by the time the matter

64

was decided by this Court, huge amount had been spent on the project. As

against this, the exercise of power under Section 17(1) and/or 17(4) for the

acquisition of land for residential, industrial and commercial purposes,

construction of sewage treatment plant and district jails was held to be

legally impermissible in Raja Anand Brahma Shah v. State of Uttar

Pradesh (supra), Narayan Govind Gavate v. State of Maharashtra

(supra), Om Prakash v. State of U.P. (supra), Union of India v. Krishan

Lal Arneja (supra), Esso Fabs Private Limited v. State of Haryana

(supra), Babu Ram v. State of Haryana (supra) and Anand Singh v. State

of Uttar Pradesh (supra).

53. From the analysis of the relevant statutory provisions and

interpretation thereof by this Court in different cases, the following

principles can be culled out:

(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

Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal

65

Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai

Khachar v. State of Gujarat (1995) Supp. (1) SCC 596.

(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

(2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (2003) 7

SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No.2334 of

2011 decided on 7.3.2011.

(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 scrutinize the action/decision of the

State with greater vigilance, care and circumspection keeping in view the

fact that the land owner is likely to become landless and deprived of the

only source of his livelihood and/or shelter.

66

(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, the State

can invoke the urgency provisions and dispense with the requirement of

hearing the land owner 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 few weeks or

months. Therefore, before excluding the application of Section 5-A, the

concerned authority 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

67

purpose for which the private property is sought to be acquired is not a

public purpose at all or that the exercise of power is vitiated due to mala

fides or that the concerned authorities did not apply 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 Section 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.

68

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 Section 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 Section 17(1) and/or 17(4) with suspicion

and carefully scrutinize the relevant record before adjudicating upon the

legality of such acquisition.

54. The stage is now set for consideration of the issue whether the State

Government was justified in invoking the urgency provision contained in

Section 17(1) and excluding the application of Section 5-A for the

acquisition of land for planned industrial development of District Gautam

Budh Nagar. A recapitulation of the facts shows that upon receipt of

proposal from the Development Authority, the State Government issued

directions to the concerned authorities to take action for the acquisition of

land in different villages including village Makora. The

comments/certificate signed by three officers, which was submitted in the

context of Government Order dated 21.12.2006 was accompanied by several

documents including proposal for the acquisition of land, preliminary

inquiry report submitted by the Amin, Land Acquisition, copies of khasra

69

khatauni and lay out plan, 10 per cent of the estimated compensation and a

host of other documents. In the note dated nil jointly signed by Deputy

Chief Executive Officer, Greater Noida, Collector, Gautam Budh Nagar and

four other officers/officials, the following factors were cited in justification

of invoking the urgency provisions:

(a) The area was notified under Uttar Pradesh Industrial Areas

Development Act, 1976 for planned industrial development.

(b) If there is any delay in the acquisition of land then the same

is likely to be encroached and that will adversely affect the

concept of planned industrial development of the district.

(c) Large tracts of land of the nearby villages have already been

acquired and in respect of some villages, the acquisition

proceedings are under progress.

(d) The Development Authority urgently requires land for

overall development, i.e. construction of roads, laying of

sewerages, providing electricity, etc. in the area.

(e) The development scheme has been duly approved by the

State Government but the work has been stalled due to non-

acquisition of land of village Makora.

(f) Numerous reputed and leading industrial units of the country

want to invest in the State of Uttar Pradesh and, therefore, it is

70

extremely urgent and necessary that land is acquired

immediately.

(g) If land is not made available to the incoming leading and

reputed industrial concerns of the country, then they will

definitely establish their units in other States and if this

happens, then it will adversely affect employment opportunities

in the State and will also go against the investment policy of the

Government.

(h) If written/oral objections are invited from the farmers and

are scrutinized, then it will take unprecedented long time and

disposal thereof will hamper planned development of the area.

(i) As per the provisions of the Act, there shall be at least one

year's time gap between publication of the notifications under

Sections 4 and 17 and Section 6.

55. In our view, the above noted factors do not furnish legally acceptable

justification for the exercise of power by the State Government under

Section 17(1) because the acquisition is primarily meant to cater private

interest in the name of industrial development of the district. It is neither the

pleaded case of the respondents nor any evidence has been produced before

the Court to show that the State Government and/or

agencies/instrumentalities of the State are intending to establish industrial

71

units on the acquired land either by itself or through its

agencies/instrumentalities. The respondents have justified the invoking of

urgency provisions by making assertions, which are usually made in such

cases by the executive authorities i.e. the inflow of funds in the State in the

form of investment by private entrepreneurs and availability of larger

employment opportunities to the people of the area. However, we do not

find any plausible reason to accept this tailor-made justification for

approving the impugned action which has resulted in depriving the

appellants' of their constitutional right to property. Even if planned

industrial development of the district is treated as public purpose within the

meaning of Section 4, there was no urgency which could justify the exercise

of power by the State Government under Section 17(1) and 17(4). The

objective of industrial development of an area cannot be achieved by

pressing some buttons on computer screen. It needs lot of deliberations and

planning keeping in view various scientific and technical parameters and

environmental concerns. The private entrepreneurs, who are desirous of

making investment in the State, take their own time in setting up the

industrial units. Usually, the State Government and its

agencies/instrumentalities would give them two to three years' to put up

their factories, establishments etc. Therefore, time required for ensuring

compliance of the provisions contained in Section 5-A cannot, by any stretch

of imagination, be portrayed as delay which will frustrate the purpose of

72

acquisition. In this context, it is apposite to note that the time limit for filing

objection under Section 5-A (1) is only 30 days from the date of publication

of the notification under Section 4(1). Of course, in terms of sub-section (2),

the Collector is required to give opportunity of hearing to the objector and

submit report to the Government after making such further inquiry, as he

thinks necessary. This procedure is likely to consume some time, but as has

been well said, "Principles of natural justice are to some minds burdensome

but this price-a small price indeed-has to be paid if we desire a society

governed by the rule of law."

56. In this case, the Development Authority sent proposal some time in

2006. The authorities up to the level of the Commissioner completed the

exercise of survey and preparation of documents by the end of December,

2006 but it took one year and almost three months to the State Government

to issue notification under Section 4 read with Section 17(1) and 17(4). If

this much time was consumed between the receipt of proposal for the

acquisition of land and issue of notification, it is not possible to accept the

argument that four to five weeks within which the objections could be filed

under sub-section (1) of Section 5-A and the time spent by the Collector in

making inquiry under sub-section (2) of Section 5-A would have defeated

the object of acquisition.

73

57. The apprehension of the respondents that delay in the acquisition of

land will lead to enormous encroachment is totally unfounded. It is beyond

the comprehension of any person of ordinary prudence to think that the land

owners would encroach their own land with a view to frustrate the concept

of planned industrial development of the district.

58 The perception of the respondents that there should be atleast one

year's time gap between the issue of notifications under Sections 4 and 6 is

clearly misconceived. The time limit of one year specified in clause (ii)) of

the proviso to Section 6(1) is the outer limit for issue of declaration. This

necessarily means that the State Government can complete the exercise

under Sections 5-A and 6 in a shorter period.

59. The only possible conclusion which can be drawn from the above

discussion is that there was no real and substantive urgency which could

justify invoking of the urgency provision under Section 17(1) and in any

case, there was no warrant to exclude the application of Section 5-A which,

as mentioned above, represent the statutory embodiment of the rule of audi

alteram partem.

60. We also find merit in the appellants' plea that the acquisition of their

land is vitiated due to violation of the doctrine of equality enshrined in

74 Article 14 of the Constitution. A reading of the survey report shows that the

committee constituted by the State Government had recommended release of

land measuring 18.9725 hectares. Many parcels of land were released from

acquisition because the land owners had already raised constructions and

were using the same as dwelling units. A large chunk of land measuring

4.3840 hectares was not acquired apparently because the same belong to an

ex-member of the legislative assembly. The appellants had also raised

constructions on their land and were using the same for residential and

agricultural purposes. Why their land was not left out from acquisition has

not been explained in the counter affidavit filed by the respondents. The

High Court should have treated this as sufficient for recording a finding that

the respondents had adopted the policy of pick and choose in acquiring some

parcels of land and this amounted to violation of Article 14 of the

Constitution. Indeed it has not been pleaded by the respondents that the

appellants cannot invoke the doctrine of equality because the other parcels

of land were illegally left out from acquisition.

61. The argument of the learned senior counsel for the respondents that

the Court may not annul the impugned acquisition because land of other

villages had already been acquired and other land owners of village Makora

have not come forward to challenge the acquisition of their land cannot be

entertained and the Court cannot refuse to protect the legal and constitutional

75

rights of the appellants' merely because the others have not come forward to

challenge the illegitimate exercise of power by the State Government. It is

quite possible that others may have, due to sheer poverty, ignorance and

similar handicaps not been able to avail legal remedies for protection of their

rights, but that cannot be made basis to deny what is due to the appellants.

62. In the result, the appeal is allowed. The impugned order is set aside

and the writ petition filed by the appellants is allowed. Respondent No.1 is

directed to pay cost of Rs. 5,00,000/- to the appellants for forcing

unwarranted litigation on them. It is, however, made clear that the

respondents shall be free to proceed from the stage of Section 4 notification

and take appropriate action after complying with Section 5-A(1) and (2) of

the Act. It is needless to say if the appellants' feel aggrieved by the fresh

exercise undertaken by the State Government then they shall be free to avail

appropriate legal remedy.

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

[G.S. Singhvi]

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

[Asok Kumar Ganguly]

New Delhi;

April 15, 2011.

76