CIVIL

Darshan Lal Nagpal versus Government of NCT of Delhi and others

03-01-2012

Supreme Court-min
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11169 OF 2011
Darshan Lal Nagpal (dead) by L.Rs. … Appellants
versus
Government of NCT of Delhi and others … Respondents
J U D G M E N T
G. S. Singhvi, J.
1. The questions which arise for consideration in this appeal are whether the
Government of NCT of Delhi could have invoked Section 17(1) and (4)
of the Land Acquisition Act, 1894 (for short, ‘the Act’) and dispensed
with the rule of hearing embodied in Section 5A(2) thereof for the
purpose of acquiring land measuring 80 bighas 15 biswas including 21
bighas 3 biswas belonging to the appellants for a public purpose, namely,
establishment of electric sub-station by Delhi Transco Limited (for short,
‘DTL’) at village Mandoli and whether the Division Bench of the Delhi
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High Court had rightly negatived the appellants’ challenge to the
acquisition of their land.
2. For deciding the aforesaid questions, it will be useful to notice the events
which led to the issue of notification dated 13.10.2009 under Section 4(1)
read with Section 17(1) and (4) of the Act and declaration dated
9.11.2009 under Section 6(1) of the Act.
2.1 It is not clear from the pleadings of the parties and the record produced
before the High Court and this Court as to when the decision was taken to
establish 400/220 KV sub-station at East of Loni Road but this much is evident
that by a communication sent in August, 2004, the DTL requested the Delhi
Development Authority (for short, ‘the DDA’) for allotment of land. For the
next about 10 months nothing appears to have happened. Between June and
October, 2005 different functionaries of DTL made some correspondence interse
in the matter of establishment of the sub-station. On 5/6.12.2005, Manager
(400/220 KV SS&L) sent a communication to the Commissioner (Planning),
DDA wherein he emphasized that establishment of the sub-station was
necessary to meet the power demand of East Delhi and particularly the
upcoming Commonwealth Games. In his reply dated 8.2.2006, Joint Director
(MP), DDA informed the DTL that allotment of sites suggested by it is not
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feasible because site ‘A’ was developed as a park and site ‘B’ was earmarked as
a community centre.
2.2 Between January, 2006 and July, 2008, the officers of the DTL, the DDA
and the Government of N.C.T. of Delhi exchanged letters on the issue of
allotment of land for the sub-station. While the officers of DTL stressed the
need for early allotment of land, the officers of the DDA repeatedly expressed
their inability to allot the particular site by pointing out that the same was
reserved for other purpose. On 28.07.2008, Secretary (Power), Government of
NCT of Delhi-cum-CMD, DTL requested the DDA to change the land use of
the particular site and inform the Government of N.C.T. of Delhi so that action
could be taken for the acquisition of land under Section 17 of the Act. In that
letter, it was also mentioned that due to paucity of land, the DTL has proposed
to establish a GIS indoor type sub-station which could be accommodated in a
space of about 200 x 125 meters as against the original requirement of 700 x
500 meters. The relevant portions of that letter are extracted below:
“In pursuance of above, a meeting was held with ViceChairman,
DDA on 06.05.2008 wherein a request was made
for the allotment of land in East Delhi. Officers of Delhi
Transco Limited, State Transmission Utility, along with
Officers of DDA and the concerned ADM of the area had
identified the land in their joint inspection held on 30th June,
2008. Copy of Khasra Nos. and their Report is enclosed as
Annexure-I. However, in the meantime DDA informed that
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the land in question is not acquired by DDA. It was further
informed that as per Master Plan, Agriculture/Green area
can be utilized for Utilities. Copy of the letter No.
F.6(4)2004/MP/D-127 dated 19.5.2008 is enclosed as
Annexure-II. Since the establishment of the Grid Station is
of paramount importance for strengthening the power supply
in East Delhi, DDA is requested to change the land use and
to inform GNCTD so that action be taken for acquisition of
the same under Section 17, i.e., for the public utility.
Earlier it was proposed to construct an outdoor 400/200 KV
Grid Station but keeping in view the paucity and availability
of land DTL has now proposed to establish a GIS indoor
type sub-station which could be accommodated in a space of
about 200 x 125 meters. It shall be appreciated if appropriate
directions are issued to the concerned officers for doing the
needful expeditiously.”
(underlining is ours)
2.3 After about one month, Joint Secretary (Power) sent communication
dated 9.9.2008 to the Principal Secretary, Land and Building Department with
the request that action may be initiated for the acquisition of the identified piece
of land by invoking Section 17 of the Act. The relevant portions of that letter
are extracted below:
“Hon’ble Prime Minister of India has laid the foundation
for 1500 KV gas based power plant at Bawana on
24.03.2008 being constructed by Pragati Power
Corporation Limited, a company owned by Govt, of NCT
of Delhi in order to evacuate and utilize the generation
from this plant for the benefit of Delhi, a study was
conducted by Central Electricity Authority which has
recommended the establishment of a 220 KV substation
in East Delhi for evacuation of power.
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Officers of Delhi Transco Limited along with officers of
DDA and concerned ADM have identified the land
measuring 200 M x 150 M in East Delhi for the proposed
grid. Copy of Khasra Nos. and their report is enclosed at
Annexure-1. Sketch showing broad location of the plot
proposed to be acquired with Khasra Nos. of the
proposed location is at Annexure-II. DDA has informed
that the land in question is not acquired by DDA.
However, as per Master Plan 2021, public utilities are
permitted in all use zones. In this regard, a copy of
Director (Planning) DDA letter dated 19.05.2008 is
enclosed as Annexure-III. The proposed site has already
been taken up with VC, DDA for change of land use
(Annexure-IV).
The commissioning of 155 MW power plant at Bawana
is scheduled before the Commonwealth Games in
October-2010. Therefore, keeping in view the urgency
involved, kindly initiate the process for acquisition of
identified peace of land in East Delhi in favour of
Department of Power, GNCTD as provided under section
17 of the Land Acquisition Act at the very earliest.”
(underlining is ours)
Soon thereafter, the Land and Building Department sent letter dated 30.9.2008
to Additional District Magistrate-cum-Land Acquisition Collector (North-East)
to send the following information/documents:
“1. Draft notification u/s 4, 6 and 17 along with the copy of Aks Sizra,
field book etc.
2. Report after conducting Joint Survey.
3. 80% estimated compensation amount with Calculation Sheet.”

2.4 After about six months, Deputy General Manager (Planning-I), DTL sent
letter dated 6.3.2009 to Deputy Secretary (Land Acquisition) and informed him
that land measuring 250 x 200 sq. mts. with approach road will be required to
accommodate the proposed three voltage level equipment as against the
requirement of 200 x 125 sq. mts. indicated in the earlier communications. The
concerned officer also requested that the acquisition of 80 bighas 15 biswas
land may be finalized as per the joint site inspection carried out on 12.01.2009.
2.5 On its part, the DDA sent letter dated 8.5.2009 to the Deputy Secretary
(Land Acquisition) that a joint site inspection be carried out for finalization of
the site. However, the latter sent communication dated 16.6.2009 to the DDA
to issue NOC required for initiation of the acquisition proceedings.
2.6 In September, 2009, the Land and Building Department of the
Government of NCT of Delhi prepared proposal for the acquisition of land
measuring 200 x 125 sq. mts. by invoking Sections 4 and 6 read with Section
17(1) and (4) of the Act. This is evident from the notings recorded in
paragraphs 56 to 61 and 63 to 65 of file bearing No. F.S(11)/08/L&B/LA,
which are extracted below:
“56. A requisition was received from Joint Secretary (Power)
Department of Power for acquisition of land measuring 200 x
125 Sq. m. identified in East Delhi for construction of 400 x
200 KV grid station (Village Mandoli) vide their letter No.
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F.11(88)/2008/Power/2186 dated 09.09.2009 (P-6/C).
Accordingly, the ADM/LAC (NE) was requested for draft
notifications and other revenue records vide letter dated
30.09.2008 (P-7/C).
57. The ADM/LC (NE) vide his letter dated 31.01.2009 (P-
28/C) forwarded draft notification u/s 4 & 6 (P-26 & 27/C) for
acquisition of land measuring 80 Bigha 15 Biswa. Copy of Joint
Survey Report (P-23/C), copy of Field Book (P-20/C), copy of
Asks Sizra (P-19/C) and Calculation Sheet for estimated
compensation amount (P-25/C).
58. The revenue staff scrutinized the draft notification and
some discrepancies have been found. The report of revenue
branch may be seen at page (P-5 & 6/N).
59. Accordingly, LAC (NE) was requested for clarification
vide letter dated 2/3/09 (page-29/C). A clarification was given
by LAC (NE) in aforesaid context and may be seen at P-32 to
39/C. Report of revenue branch may be seen at page 11 &
12/N. Letter dated 30/7/08 and 6/3/09 received from Delhi
Transco Ltd. regarding change of proposal may be seen at P.30
and 31/C. Delhi Transco Ltd. has given the justification for the
change of proposal regarding requirement of land, i.e., 80
Bigha 15 Biswa instead of 200 x 125 Sq.m.
60. Vide letter No.F.6(4)2004-MP/265 dated 7/9/09 Jt.
Director (MP) DD has informed that DDA has no objection
with respect to proposed location of land for establishing
400/200 KV ESS subject to compliance of the following
conditions:-
a. Submission of a layout plan/location plan with
description of the land under reference be submitted to
ascertain the boundaries of the site.
b. Justification for an area of 6.8 hact. against 2.96 hact.
required for establishment of 200/400 KV ESS as per
MPD-2021 norms.
c. This is a Master Plan level utility for which change of
land use will be processed after land is acquired.
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d. Submission of transmission route alignment plan as the
surrounding area is thickly populated.
e. The site shall not be used for any other purpose other
than ESS.
61. As the matter is urgent and related to Commonwealth
Games, if approved Hon’ble L.G. may be requested to kindly
approve acquisition of land measuring 80 Bigha 15 Biswa as
per the draft notifications placed opposite for acquisition of
land for establishment of 400 x 200 KV sub-station in villageMandoli
and issuance of notification u/s 4 read with 17(4) and
section 6 along with 17(1) of Land Acquisition Act, 1894.
63. May kindly see the proposal at page 21/N regarding
acquisition of land measuring 80 Bigha 15 Biswa for
construction of 400 x 200 KV grid station in village Mandoli.
The proposal has been received from Power Department, Govt.,
of NCT of Delhi, which is available at page 6/C. It has been
mentioned in the proposal that Hon’ble Prime Minister of India
has laid the foundation stone for 155 MW gas based power
plant at Bawana on 24-3-2008 which is being constructed by
Pragati Power Corporation Limited, a company owned by
Govt., of NCT of Delhi. It has been also mentioned in the
proposal that to evacuate and utilize the generation from this
plant for the benefit of Delhi, a study was conducted by Central
Electricity Authority which has recommended the
establishment of a 220 KV sub-station in East Delhi for
evacuation of power. The Power Department has requested that
the acquisition of the above said land may be proceeded with
under the emergency provisions of the Land Acquisition Act
because 1500 MW power at Bawana is scheduled to be
commissioned before the Commonwealth Games, 2010.
64. The Land Acquisition Collector (N/E) has prepared a
draft notification under section 4 & 6 (page 26 & 27/C) after
conduction the Joint survey report along with concerned
department and copy of the same is available at page 23/C
along with relevant records. As per the joint survey available at
page 22/C and 23/C it appears that entire land is laying vacant
except to Bhattas (Brick Kiln) and boundary walls in 3 Khasras.
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The DDA has also provided no objection for acquisition subject
to certain conditions as mentioned in letter dated 07-09-09,
which is available at page 64/C.
65. From the proposal of the Power Department it is clear
that land is required for valid public purpose and urgent need
for acquisition of the land has also been justified by the Power
Department. Therefore, if approved, Hon’ble Lt. Governor may
kindly be requested to approve acquisition of land measuring 80
Bigha 15 Biswa as per the draft notification placed opposite for
the public purpose namely for establishing 400 x 200 KV grid
sub-station for Power Department in Village-Mandoli and
issuance of notification u/s 4 read with 17(4) and section 6
along with 17(1) of Land Acquisition Act, 1894.”
2.7 The Lieutenant Governor of Delhi accorded his approval on 26.9.2009 in
the following terms:
“I have gone through the records and requirement of Delhi
Transco Ltd. for acquisition of land for Establishment of
400×200 kv station at village Mandoli and the draft
notifications prepared by LAC (North-East).
I am fully satisfied that the land measuring 80 Bigha 15 Biswa
is urgently required for above purpose. In view of the urgency
of the scheme, I order that the provisions of section 5A shall not
apply and notifications under section 4 read with 17(4), 6 &
17(1) of the Land Acquisition Act, 1894 be issued immediately.
Sd/-
Tejendra Khanna
Lt. Governor Delhi
26.09.2009.”
3. In compliance of the direction given by the Lieutenant Governor, the
Government of N.C.T. of Delhi issued notification dated 13.10.2009
9
under Section 4(1) read with Section 17(1) and (4) for the acquisition of
80 bighas 15 biswas land. The declaration issued under Section 6(1) was
published vide notification dated 9.11.2009. By another notification of
the same date, Land Acquisition Collector (North-East), Delhi was
authorised to take possession of the land on the expiry of 15 days.
4. When the appellants learnt about the proposed acquisition of their land,
they made a representation to the Member of the Legislative Assembly
that as per Master Plan of Delhi-2021 only 29.6 bigha land was required
for the sub-station and that barren land available in the area could be
utilized for that purpose leaving out their land. The concerned Member of
the Legislative Assembly forwarded the representation to the
Government of NCT of Delhi on 28.4.2009 but the same did not yield the
desired result and the notifications were issued under Section 4(1) read
with Section 17(1) and (4) and Section 6(1) of the Act. Thereupon, the
appellants filed Writ Petition No. 13376 of 2009 for quashing of
notifications dated 13.10.2009 and 9.11.2009. The main plank of their
challenge was that there was no urgency for the acquisition of land which
could justify invoking of Section 17(1) and (4) of the Act. They pleaded
that more than 4 years time spent in the correspondence exchanged
between the DTL, the State Government and the DDA clearly shows that
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there was no urgency in the establishment of the sub-station and the
cause put forward by the DTL in 2008-2009, namely, the requirement of
power for Commonwealth Games did not warrant invoking of Section
17(1) and (4) which resulted in depriving them of their property without
being heard. The appellants further pleaded that the Lieutenant Governor
had not applied mind on the issue of urgency and approved the proposal
prepared by the Land and Building Department, Government of NCT of
Delhi without satisfying himself that there was emergent need for the
acquisition of land for the purpose for which the proposal had been
initiated prior to August, 2004. The appellants also claimed that other
parcels of land including waste land belonging to the public authorities
and the Gaon Sabha were available, which could be utilized for
establishing the sub-station but, without examining the feasibility of
acquiring an alternative piece of land, the respondents arbitrarily
deprived them of their property.
5. In the counter affidavit filed on behalf of the Government of NCT of
Delhi and the Lieutenant Governor of Delhi it was averred that with a
view to provide power to the city of Delhi, 1500 MW gas based power
plant was being constructed at Bawana by a Government owned
company, viz., Pragati Power Corporation Limited; that the plant is
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scheduled to be commissioned in a time-bound manner in October, 2010
before the commencement of the Commonwealth Games; that in order to
evacuate and utilize the power generated from the new plant for the
benefit of Delhi, the Central Electricity Authority recommended
establishment of 220 KV sub-station in East Delhi; that after identifying
the land in question the Power Department of Government of NCT of
Delhi made a request for initiation of the acquisition proceedings on
urgent basis; that on receipt of letter dated 9.9.2008, instructions were
issued to the Land Acquisition Collector to conduct a joint survey,
prepare a draft notification and also make calculation of 80 per cent of
the estimated compensation and that after taking all the necessary steps, a
note was put up before the Lieutenant Governor, who approved the
proposal for the acquisition of land under Section 4 read with Section
17(1) and (4) and also to dispense with the inquiry envisaged under
Section 5A of the Act. It was also pleaded that the beneficiary of the
acquisition deposited a sum of Rs.9,27,11,840/- towards 80 per cent of
the estimated compensation as required by Section 17(3A) of the Act,
which was remitted to the Land Acquisition Collector for payment. In
Para 11 of the counter affidavit it was averred that there is an urgent need
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of the land for the purpose of construction of sub-station by the DTL in
the larger public interest.
6. In a separate written statement filed on behalf of the DTL it was pleaded
that decision was taken by the Government to establish 400 / 220 KV
grid sub-station to meet the growing demand of power in Delhi and the
establishment of the sub-station was approved by Delhi Electricity
Regulatory Commission vide order dated 16.6.2009. In paragraphs 5 to 7
of the counter affidavit of the DTL reference was made to the decision
taken by the Government to construct 1500 MW Pragati III Power Plant
at Bawana IPGCL; 2 x 490 MW Thermal Power Stations at Dadri and
1500 MW Thermal Station at Jhajjar and also to establish grid substations
for evacuation of power from different plants. According to the
DTL, as per the Master Plan of Delhi-2021, the minimum land required
for establishment of a conventional outdoor 400/220/66 KV sub-station is
60 acres but because of scarcity of land, it was decided to establish an
indoor GIS sub-station and for that purpose 80 bighas land was required.
It was also the pleaded case of the DTL that the appellants’ land was
identified after inspections carried out by the officers of the DDA, Land
and Building Department, Land Acquisition Collector, Government of
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NCT of Delhi and its own officers. In paragraphs 13, 14 and 15 of the
counter affidavit of the DTL, the following averments were made:
“13. That proposed 400KV sub-station cannot be
established in the 30 bighas of Gram Sabha land. The
said Gram Sabha land does not fulfill the complete
purpose of the answering respondent because 80 bighas
are required for the establishment of the proposed substation.
Further, the said Gram Sabha’s land does not
give any entrance / exit point towards State Highway.
Therefore, the acquisition of the said Gram Sabha’s land
does not serve any purpose.
14. That Delhi Electricity Regulatory Commission,
which is a statutory body of Govt. of NCT of Delhi vide
its letter No. F.17(51)/Engg./DERC/2009-10/1074 dated
16.6.2009 granted investment approval of scheme for
supply testing and commissioning of 400/220/66KV GIS
sub-station at East of Loni Road to the tune of Rs. 250.24
crores. The true copy of the letter dated 16.6.2009 is
marked and annexed as Annexure – E.
15. Further the Power Grid Corporation of India Ltd. vide
its letter dated 28.8.2009 addressed to the answering
respondent emphasized on the urgency regarding the
setting up and commission of the 400 KV sub-station
East of Loni Road since the transmission line is being
constructed for catering the additional load of
Commonwealth Games, 2010 from 2 x 490 MW, NTPC
Dadri Power Plant (under construction) and set the
timeline of completion by June, 2010. It was further
pointed out that location of Lone Road sub-station and
coordinates of 400 KV switch yard gantry were urgently
required for the completion of the survey work. the true
copy of the letter dated 28.8.2009 is marked and annexed
as Annexure – F. Therefore, it was a comprehensive
scheme consisting of establishment of 400/220KV grid
sub-station by the answering respondent whereas in feed
i.e. 400 KV transmission line from Dadri Generating
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Station upto the proposed grid sub-station at East of Loni
Road.”
7. The Division Bench of the High Court noticed the correspondence
exchanged between the DTL, the DDA and the Government of NCT of
Delhi and proceeded to observe:
“The only argument made was that urgency was because of
ensuing Common Wealth Games and since those have already
concluded, the urgency as seized to exist. This is a myopic
view of the requirement for such a project. No doubt,
endeavour was to establish the sub-station before the
Commonwealth Games, 2010 but that was not the only reason
for urgency. The primary reason for urgency was, and
continuous to be, that the substation in East Delhi is needed to
evacuate and utilize the power generated from 1500 MW Gas
based Plant at Bawana which is being constructed. The
urgency was, and continuous to exist, i.e. the need for adequate
power supply to the residents of this city. This is an urgent
need keeping in view the wide gap between the demand and
supply. No doubt, the plans were to commission it before
Common Wealth Games. That has not happened also because
of the reason that stay was granted in these proceedings. Be as
it may, it cannot be argued that merely because Common
Wealth Games are over, the respondent authorities can now set
up the sub-station leisurely. These are the aspects which are to
be gone into by the Competent Authority while exercising
powers under Section 17 (4) of the Act. Once it is seen that all
relevant factors were taken into consideration and the
Competent Authority was not influenced by any irrelevant
consideration or the power exercised was not the result of
malafide, the subjective satisfaction of the Competent
Authority, based on those objective considerations namely the
purpose of invocation of urgency clause to acquire continued to
exist the Court would be loathe to interfere with such
discretion exercised by the Competent Authority dispensing
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with the enquiry under Section 5A of the Act.”
8. The Division Bench of the High Court then referred to the judgments of
this Court in First Land Acquisition Collector and Others v. Nirodhi
Prakash Ganguli and Another, (2002) 4 SCC 160; Union of India &
Others v. Praveen Gupta and Others (1997) 9 SCC 78; Nand Kishore
Gupta and Others v. State of U.P. and Others (2010) 10 SCC 282 and of
the High Court in Bijwasan Gram Vikas Samiti v. Lt. Governor and
Others – WP(C) No. 1307/2010, decided on 5.10.2010 and negatived the
appellants’ challenge to the invoking of Section 17 of the Act. The
Division Bench distinguished the judgments relied upon by the
appellants’ counsel by observing that those cases did not involve
challenge to the acquisition of land for infrastructure projects meant for
larger public interest. At the same time, the Division Bench referred to
the judgments in Rajiv Joshi v. Union of India 2009 (159) DLT 214,
Rajinder Kishan Gupta and another v. Lt. Governor, Government of
NCT of Delhi 2010 (114) DLT 708, Sumit Import Services Ltd. and
another v. Delhi Metro Rail Corporation and others 2008 (103) DRJ 263,
M/s. A.B.Tools Ltd. and another v. Union of India WP (C)
No.4611/1996, decided on 3.2.2010, Deepak Resorts v. Union of India
2008 (149) DLT 582, Ajay Kumar Sanghi v. Delhi Police 2009 (163)
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DLT 74, Union of India and others v. Pramod Gupta (1997) 9 SCC 78,
Sheikhar Hotels Gulmohar Enclave v. State of U.P. (2008) 14 SCC 716
and Jai Narain v. Union of India (1999) 1 SCC 9 in which the acquisition
of land for Airport, construction of metro station/metro line, installation
of LPG Bottling Plant, construction of sewage treatment plant,
construction of police station, relocation of timber merchants outside the
walled city and widening of National Highway by invoking the urgency
provisions contained in Section 17 of the Act was upheld by the High
Court and this Court.
9. Learned counsel for the parties reiterated the arguments made before the
High Court. While Shri Dhruv Mehta relied upon the judgments of this
Court in Anand Singh v. State of U.P. (2010) 11 SCC 242 and Radhy
Shyam v. State of U.P. (2011) 5 SCC 553 to emphasize that the
acquisition of land for establishment of 400/220 KV sub-station did not
warrant invoking of the urgency provisions contained in the Act because
the proposal for establishment of the sub-station was initiated more than
five yeas prior to the issue of notification under Section 4(1) read with
Section 17(1) and (4) of the Act and there was no justification to deprive
the appellants of the right to be heard before being deprived of their
property, Shri P.P. Malhotra, learned Additional Solicitor General argued
17
that the time consumed in the exchange of correspondence between the
functionaries of the Government, the DTL and the DDA cannot be made
a ground for nullifying the exercise of the State’s power of eminent
domain. In support of his argument, Shri Malhotra relied upon the
judgments of Deepak Pahwa v. Lt. Governor of Delhi (1984) 4 SCC 308
and Chameli Singh v. State of U.P. (1996) 2 SCC 549. Shri Waziri,
learned counsel for the DTL, supplemented the argument of learned
Additional Solicitor General and submitted that the Court may not quash
the acquisition of the appellants’ land because the work for establishing
the sub-station has been completed to a large extent. Learned counsel
submitted that the appellants’ land cannot be left out because the same is
needed for construction of project road. Shri Waziri also submitted that
the sub-station is required for evacuation of power which will be made
available from the Dadri Power Plant and no other suitable land was
available for the sub-station.
10. We have considered the respective arguments/submissions and carefully
scrutinized the record including the documents made available during the
course of hearing. The compulsory acquisition of land has generated
enormous litigation in the country in last more than five decades and this
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Court has been repeatedly called upon to adjudicate upon the legality of
the notifications issued under the Act.
11. In State of U.P. v. Pista Devi (1986) 4 SCC 251, Rajasthan Housing
Board v. Shri Kishan (1993) 2 SCC 84, Jai Narain v. Union of India
(supra), Union of India v. Praveen Gupta (supra), Land Acquisition
Collector v. Nirodhi Prakash Ganguli (supra), Anand Buttons Ltd. v.
State of Haryana (2005) 9 SCC 164, Tika Ram v. State of U.P. (2009) 10
SCC 689, Nand Kishore Gupta v. State of U.P. (2010) 10 SCC 282 and
some other judgments, the acquisition of land under Section 4(1) read
with Section 17(1) and 17(4) and some of the State amendments for
different public purposes, i.e., for construction of houses for poor and the
members of reserved categories, establishment of medical college,
construction of sewage treatment plant under the Court’s order and for
construction of Express Way has been approved. As against this, the
acquisition of land by invoking the urgency provisions for the public
purposes, like, planned residential, commercial, industrial or institutional
development has been disapproved in Narayan Govind Gavate v. State of
Maharashtra (1977) 1 SCC 133, State of Punjab v. Gurdial Singh (1980)
2 SCC 471, Om Prakash v. State of U.P. (1998) 6 SCC 1, Union of India
v. Mukesh Hans (2004) 8 SCC 14, Union of India v. Krishan Lal Arneja
19
(2004) 8 SCC 453, Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
Chenai (2005) 7 SCC 627, Essco Fabs (P) Ltd. v. State of Haryana
(2009) 2 SCC 377, Babu Ram v. State of Haryana (2009) 10 SCC 115,
Anand Singh v. State of U.P. (supra), Dev Sharan v. State of U.P. (2011)
4 SCC 769, State of West Bengal v. Prafulla Churan Law (2011) 4 SCC
537 , Radhy Shyam v. State of U.P. (supra) and Devender Kumar Tyagi
v. State of U.P. (2011) 9 SCC 164 because the explanation given by the
acquiring authority for invoking Section 17(1) and/or 17(4) was found to
be wholly unsatisfactory or it was found that there was total nonapplication
of mind by the competent authority on the question of
necessity and desirability of invoking the urgency provisions.
12. Although, it is neither possible nor desirable to lay down any straight
jacket formula which can be applied to each and every case involving
challenge to the acquisition of land by invoking the urgency provision, it
will be profitable to notice two recent judgments in which several judicial
precedents including some of the judgments referred to in the impugned
order have been considered and some concrete propositions have been
laid down which could supply guidance for deciding such matters. In
Anand Singh v. State of U.P. (supra), this Court considered the question
whether the State Government could invoke Section 17(4) for the
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acquisition of land for a residential colony to be constructed by
Gorakhpur Development Authority, Gorakhpur. After noticing factual
matrix of the case and about 16 judgments, the Court held:
“43. The exceptional and extraordinary power of doing away
with an enquiry under Section 5-A in a case where possession
of the land is required urgently or in an unforeseen emergency
is provided in Section 17 of the Act. Such power is not a
routine power and save circumstances warranting immediate
possession it should not be lightly invoked. The guideline is
inbuilt in Section 17 itself for exercise of the exceptional power
in dispensing with enquiry under Section 5-A. Exceptional the
power, the more circumspect the Government must be in its
exercise. The Government obviously, therefore, has to apply its
mind before it dispenses with enquiry under Section 5-A on the
aspect whether the urgency is of such a nature that justifies
elimination of summary enquiry under Section 5-A.
44. A repetition of the statutory phrase in the notification that
the State Government is satisfied that the land specified in the
notification is urgently needed and the provision contained in
Section 5-A shall not apply, though may initially raise a
presumption in favour of the Government that prerequisite
conditions for exercise of such power have been satisfied, but
such presumption may be displaced by the circumstances
themselves having no reasonable nexus with the purpose for
which the power has been exercised. Upon challenge being
made to the use of power under Section 17, the Government
must produce appropriate material before the court that the
opinion for dispensing with the enquiry under Section 5-A has
been formed by the Government after due application of mind
on the material placed before it.
45. It is true that power conferred upon the Government under
Section 17 is administrative and its opinion is entitled to due
weight, but in a case where the opinion is formed regarding the
urgency based on considerations not germane to the purpose,
21
the judicial review of such administrative decision may become
necessary.
46. As to in what circumstances the power of emergency can be
invoked are specified in Section 17(2) but circumstances
necessitating invocation of urgency under Section 17(1) are not
stated in the provision itself. Generally speaking, the
development of an area (for residential purposes) or a planned
development of city, takes many years if not decades and,
therefore, there is no reason why summary enquiry as
contemplated under Section 5-A may not be held and objections
of landowners/persons interested may not be considered. In
many cases, on general assumption likely delay in completion
of enquiry under Section 5-A is set up as a reason for
invocation of extraordinary power in dispensing with the
enquiry little realising that an important and valuable right of
the person interested in the land is being taken away and with
some effort enquiry could always be completed expeditiously.
47. The special provision has been made in Section 17 to
eliminate enquiry under Section 5-A in deserving and cases of
real urgency. The Government has to apply its mind on the
aspect that urgency is of such nature that necessitates
dispensation of enquiry under Section 5-A. We have already
noticed a few decisions of this Court. There is a conflict of view
in the two decisions of this Court viz. Narayan Govind Gavate
and Pista Devi. In Om Prakash this Court held that the decision
in Pista Devi must be confined to the fact situation in those
days when it was rendered and the two-Judge Bench could not
have laid down a proposition contrary to the decision in
Narayan Govind Gavate. We agree.
48. As regards the issue whether pre-notification and postnotification
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
22
been placed by the appropriate Government before the court
justifying that urgency was of such nature that necessitated
elimination of enquiry under Section 5-A.”
13. In Radhy Shyam v. State of U.P. (supra), this Court considered challenge
to the acquisition of land under Section 4(1) read with Section 17(1) and
(4) for planned industrial development of District Gautam Budh Nagar by
Greater Noida Industrial Development Authority and extensively referred
to the judgment in Narayan Govind Gavate v. State of Maharashtra
(1977) 1 SCC 133 and also adverted to other judgments, in which the
importance of the rules of natural justice has been highlighted, and culled
out the following principles:
“(i) Eminent domain is a right inherent in every sovereign to
take and appropriate property belonging to citizens for public
use. To put it differently, the sovereign is entitled to reassert its
dominion over any portion of the soil of the State including
private property without its owner’s consent provided that such
assertion is on account of public exigency and for public good –
Dwarkadas Shrinivas v. Sholapur Spg. and Wvg. Co. Ltd.,
Charanjit Lal Chowdhury v. Union of India and Jilubhai
Nanbhai Khachar v. State of Gujarat.
(ii) The legislations which provide for compulsory acquisition
of private property by the State fall in the category of
expropriatory legislation and such legislation must be construed
strictly – DLF Qutab Enclave Complex Educational Charitable
Trust v. State of Haryana; State of Maharashtra v. B.E.
Billimoria and Dev Sharan v. State of U.P.
23
(iii) Though, in exercise of the power of eminent domain, the
Government can acquire the private property for public
purpose, it must be remembered that compulsory taking of one’s
property is a serious matter. If the property belongs to
economically disadvantaged segment of the society or people
suffering from other handicaps, then the court is not only
entitled but is duty-bound to scrutinise the action/decision of
the State with greater vigilance, care and circumspection
keeping in view the fact that the landowner is likely to become
landless and deprived of the only source of his livelihood
and/or shelter.
(iv) The property of a citizen cannot be acquired by the State
and/or its agencies/instrumentalities without complying with
the mandate of Sections 4, 5-A and 6 of the Act. A public
purpose, however laudable it may be does not entitle the State
to invoke the urgency provisions because the same have the
effect of depriving the owner of his right to property without
being heard. Only in a case of real urgency, can the State
invoke the urgency provisions and dispense with the
requirement of hearing the landowner or other interested
persons.
(v) Section 17(1) read with Section 17(4) confers extraordinary
power upon the State to acquire private property without
complying with the mandate of Section 5-A. These provisions
can be invoked only when the purpose of acquisition cannot
brook the delay of even a few weeks or months. Therefore,
before excluding the application of Section 5-A, the authority
concerned must be fully satisfied that time of few weeks or
months likely to be taken in conducting inquiry under Section
5-A will, in all probability, frustrate the public purpose for
which land is proposed to be acquired.
(vi) The satisfaction of the Government on the issue of urgency
is subjective but is a condition precedent to the exercise of
power under Section 17(1) and the same can be challenged on
the ground that the purpose for which the private property is
sought to be acquired is not a public purpose at all or that the
24
exercise of power is vitiated due to mala fides or that the
authorities concerned did not apply their mind to the relevant
factors and the records.
(vii) The exercise of power by the Government under Section
17(1) does not necessarily result in exclusion of Section 5-A of
the Act in terms of which any person interested in land can file
objection and is entitled to be heard in support of his objection.
The use of word “may” in sub-section (4) of Section 17 makes
it clear that it merely enables the Government to direct that the
provisions of Section 5-A would not apply to the cases covered
under sub-section (1) or (2) of Section 17. In other words,
invoking of Section 17(4) is not a necessary concomitant of the
exercise of power under Section 17(1).
(viii) The acquisition of land for residential, commercial,
industrial or institutional purposes can be treated as an
acquisition for public purposes within the meaning of Section 4
but that, by itself, does not justify the exercise of power by the
Government under Sections 17(1) and/or 17(4). The court can
take judicial notice of the fact that planning, execution and
implementation of the schemes relating to development of
residential, commercial, industrial or institutional areas usually
take few years. Therefore, the private property cannot be
acquired for such purpose by invoking the urgency provision
contained in Section 17(1). In any case, exclusion of the rule of
audi alteram partem embodied in Sections 5-A(1) and (2) is not
at all warranted in such matters.
(ix) If land is acquired for the benefit of private persons, the
court should view the invoking of Sections 17(1) and/or 17(4)
with suspicion and carefully scrutinise the relevant record
before adjudicating upon the legality of such acquisition.”
14. What needs to be emphasized is that although in exercise of the power of
eminent domain, the State can acquire the private property for public
25
purpose, it must be remembered that compulsory acquisition of the
property belonging to a private individual is a serious matter and has
grave repercussions on his Constitutional right of not being deprived of
his property without the sanction of law – Article 300A and the legal
rights. Therefore, the State must exercise this power with great care and
circumspection. At times, compulsory acquisition of land is likely to
make the owner landless. The degree of care required to be taken by the
State is greater when the power of compulsory acquisition of private land
is exercised by invoking the provisions like the one contained in Section
17 of the Act because that results in depriving the owner of his property
without being afforded an opportunity of hearing.
15. In the light of the above, it is to be seen whether there was any
justification for invoking the urgency provisions contained in Section 17
(1) and (4) of the Act for the acquisition of the appellants’ land. The
Division Bench of the High Court accepted the explanation given by the
respondents by observing that sub-station in East Delhi is needed to
evacuate and utilize the power generated from 1500 MW gas based plant
at Bawana. While doing so the Bench completely overlooked that there
was long time gap of more than five years between initiation of the
proposal for establishment of the sub-station and the issue of notification
26
under Section 4 (1) read with Section 17 (1) and (4) of the Act. The High
Court also failed to notice that the Government of NCT of Delhi had not
produced any material to justify its decision to dispense with the
application of Section 5A of the Act. The documents produced by the
parties including the notings recorded in file bearing No.
F.S(11)/08/L&B/LA and the approval accorded by the Lieutenant
Governor do not contain anything from which it can be inferred that a
conscious decision was taken to dispense with the application of Section
5A which represents two facets of the rule of hearing that is the right of
the land owner to file objection against the proposed acquisition of land
and of being heard in the inquiry required to be conducted by the
Collector.
16. The scope of the rule of hearing, i.e., audi alteram partem was
highlighted by the three-Judge Bench in Sayeedur Rehman v. State of
Bihar (1973) 3 SCC 333 in the following words:
“11. … This unwritten right of hearing is fundamental to a just
decision by any authority which decides a controversial issue
affecting the rights of the rival contestants. This right has its
roots in the notion of fair procedure. It draws the attention of
the party concerned to the imperative necessity of not
overlooking the other side of the case before coming to its
decision, for nothing is more likely to conduce to just and right
27
decision than the practice of giving hearing to the affected
parties.
17. In Maneka Gandhi v. Union of India (1978) 1 SCC 248 Bhagwati, J.
speaking for himself and Untwalia and Fazal Ali, JJ. observed:
“14. … The audi alteram partem rule is intended to inject
justice into the law and it cannot be applied to defeat the ends
of justice, or to make the law ‘lifeless, absurd, stultifying, selfdefeating
or plainly contrary to the common sense of the
situation’. Since the life of the law is not logic but experience
and every legal proposition must, in the ultimate analysis, be
tested on the touchstone of pragmatic realism, the audi alteram
partem rule would, by the experiential test, be excluded, if
importing the right to be heard has the effect of paralysing the
administrative process or the need for promptitude or the
urgency of the situation so demands. But at the same time it
must be remembered that this is a rule of vital importance in
the field of administrative law and it must not be jettisoned save
in very exceptional circumstances where compulsive necessity
so demands. It is a wholesome rule designed to secure the rule
of law and the court should not be too ready to eschew it in its
application to a given case. True it is that in questions of this
kind a fanatical or doctrinaire approach should be avoided, but
that does not mean that merely because the traditional
methodology of a formalised hearing may have the effect of
stultifying the exercise of the statutory power, the audi alteram
partem should be wholly excluded. The Court must make every
effort to salvage this cardinal rule to the maximum extent
permissible in a given case. It must not be forgotten that
‘natural justice is pragmatically flexible and is amenable to
capsulation under the compulsive pressure of circumstances’.
The audi alteram partem rule is not cast in a rigid mould and
judicial decisions establish that it may suffer situational
modifications. The core of it must, however, remain, namely,
that the person affected must have a reasonable opportunity of
being heard and the hearing must be a genuine hearing and not
an empty public relations exercise.”
28
(emphasis supplied)
18. In Mohinder Singh Gill v. Chief Election Commr.(1978) 1 SCC 405,
Krishna Iyer, J. speaking for himself, Beg, C.J. and Bhagwati, J.
observed as under:
“43. Indeed, natural justice is a pervasive facet of secular law
where a spiritual touch enlivens legislation, administration and
adjudication, to make fairness a creed of life. It has many
colours and shades, many forms and shapes and, save where
valid law excludes it, applies when people are affected by acts
of authority. It is the hone of healthy Government, recognised
from earliest times and not a mystic testament of Judge-made
law. Indeed, from the legendary days of Adam—and of
Kautilya’s Arthashastra—the rule of law has had this stamp of
natural justice which makes it social justice. We need not go
into these deeps for the present except to indicate that the roots
of natural justice and its foliage are noble and not new-fangled.
Today its application must be sustained by current legislation,
case law or other extant principle, not the hoary chords of
legend and history. Our jurisprudence has sanctioned its
prevalence even like the Anglo-American system.”
“48. Once we understand the soul of the rule as fair play in
action—and it is so—we must hold that it extends to both the
fields. After all, administrative power in a democratic set-up is
not allergic to fairness in action and discretionary executive
justice cannot degenerate into unilateral injustice. Nor is there
ground to be frightened of delay, inconvenience and expense, if
natural justice gains access. For fairness itself is a flexible,
pragmatic and relative concept, not a rigid, ritualistic or
sophisticated abstraction. It is not a bull in a china shop, nor a
bee in one’s bonnet. Its essence is good conscience in a given
situation: nothing more—but nothing less. The ‘exceptions’ to
the rules of natural justice are a misnomer or rather are but a
shorthand form of expressing the idea that in those exclusionary
cases nothing unfair can be inferred by not affording an
29
opportunity to present or meet a case. Textbook excerpts and
ratios from rulings can be heaped, but they all converge to the
same point that audi alteram partem is the justice of the law,
without, of course, making law lifeless, absurd, stultifying, selfdefeating
or plainly contrary to the common sense of the
situation.”
19. In Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664 the
majority of the three-Judge Bench held that the rule of audi alteram
partem must be complied with even when the Government exercises
power under Section 18-AA of the Industries (Development and
Regulation) Act, 1951 which empowers the Central Government to
authorise taking over of the management of industrial undertaking.
Sarkaria, J. speaking for himself and Desai, J. referred to the
development of law relating to applicability of the rule of audi alteram
partem to administrative actions, noticed the judgments in Ridge v.
Baldwin (1964) AC 40, A.K. Kraipak v. Union of India (1969) 2 SCC
262, Mohinder Singh Gill v. Chief Election Commr. (supra), Maneka
Gandhi v. Union of India (supra) and State of Orissa v. Dr. Binapani Dei
(1967) 2 SCR 625 and quashed the order passed by the Central
Government for taking over the management of the industrial
undertaking of the appellant on the ground that opportunity of hearing
has not been given to the owner of the undertaking and remanded the
30
matter for fresh consideration and compliance with the rule of audi
alteram partem.
20. In Munshi Singh v. Union of India (1973) 2 SCC 337, the three-Judge
Bench of this Court emphasised the importance of Section 5-A in the
following words:
“7. … Sub-section (2) of Section 5-A makes it obligatory on the
Collector to give an objector an opportunity of being heard.
After hearing all objections and making further inquiry he is to
make a report to the appropriate Government containing his
recommendation on the objections. The decision of the
appropriate Government on the objections is then final. The
declaration under Section 6 has to be made after the appropriate
Government is satisfied, on a consideration of the report, if any,
made by the Collector under Section 5-A(2). The legislature
has, therefore, made complete provisions for the persons
interested to file objections against the proposed acquisition and
for the disposal of their objections. It is only in cases of urgency
that special powers have been conferred on the appropriate
Government to dispense with the provisions of Section 5-A.”
21. It is also apposite to mention that no tangible evidence was produced by
the respondents before the Court to show that the task of establishing the
sub-station at Mandoli was required to be accomplished within a fixed
schedule and the urgency was such that even few months time, which
may have been consumed in the filing of objections by the land owners
and other interested persons under Section 5A(1) and holding of inquiry
by the Collector under Section 5A(2), would have frustrated the project.
31
It seems that the Bench of the High Court was unduly influenced by the
fact that consumption of power in Delhi was increasing everyday and the
DTL was making an effort to ensure supply of power to different areas
and for that purpose establishment of sub-station at village Mandoli was
absolutely imperative. In our view, the High Court was not justified in
rejecting the appellants’ challenge to the invoking of urgency provisions
on the premise that the land was required for implementation of a project
which would benefit large section of the society. It needs no emphasis
that majority of the projects undertaken by the State and its agencies /
instrumentalities, the implementation of which requires public money,
are meant to benefit the people at large or substantially large segment of
the society. If what the High Court has observed is treated as a correct
statement of law, then in all such cases the acquiring authority will be
justified in invoking Section 17 of the Act and dispense with the inquiry
contemplated under Section 5A, which would necessarily result in
depriving the owner of his property without any opportunity to raise
legitimate objection. However, as has been repeatedly held by this Court,
the invoking of the urgency provisions can be justified only if there exists
real emergency which cannot brook delay of even few weeks or months.
In other words, the urgency provisions can be invoked only if even small
32
delay of few weeks or months may frustrate the public purpose for which
the land is sought to be acquired. Nobody can contest that the purpose
for which the appellants’ land and land belonging to others was sought to
be acquired was a public purpose but it is one thing to say that the State
and its instrumentality wants to execute a project of public importance
without loss of time and it is an altogether different thing to say that for
execution of such project, private individuals should be deprived of their
property without even being heard. It appears that attention of the High
Court was not drawn to the following observations made in State of
Punjab v. Gurdial Singh (supra):
“it is fundamental that compulsory taking of a man’s
property is a serious matter and the smaller the man the
more serious the matter. Hearing him before depriving
him is both reasonable and pre-emptive of arbitrariness,
and denial of this administrative fairness is constitutional
anathema except for good reasons. Save in real urgency
where public interest does not brook even the minimum
time needed to give a hearing land acquisition authorities
should not, having regard to Articles 14 (and 19), burke
an enquiry under Section 17 of the Act. Here a
slumbering process, pending for years and suddenly
exciting itself into immediate forcible taking, makes a
travesty of emergency power.”
22. A recapitulation of the facts would show that the idea of establishing
400/220 KV sub-station was mooted prior to August, 2004. For next
almost three years, the officers of the DTL and the DDA exchanged
33
letters on the issue of allotment of land. On 28.7.2008 Secretary (Power),
Government of NCT of Delhi-cum-CMD, DTL made a suggestion for the
acquisition of land by invoking Section 17 of the Act. This became a tool
in the hands of the concerned authorities and the Lieutenant Governor
mechanically approved the proposal contained in the file without trying
to find out as to why the urgency provisions were being invoked after a
time gap of five years. If the sub-station was to be established on
emergency basis, the authorities of the DTL would not have waited for
five years for the invoking of urgency provisions enshrined in the Act.
They would have immediately approached the Government of NCT of
Delhi and made a request that land be acquired by invoking Section 17 of
the Act. However, the fact of the matter is that the concerned officers /
functionaries of the DTL, the DDA and the Government of NCT of Delhi
leisurely dealt with the matter for over five years. Even after some sign of
emergency was indicated in letter dated 9.9.2008 of the Joint Secretary
(Power), who made a mention of the Commonwealth Games scheduled
to be organised in October, 2010, it took more than one year and two
months to the competent authority to issue the preliminary notification.
Therefore, we are unable to approve the view taken by the High Court on
34
the sustainability of the appellants’ challenge to the acquisition of their
land.
23. Before concluding we deem it appropriate to notice the judgments relied
upon by the learned Additional Solicitor General. A cursory reading of
the judgment in Deepak Pahwa v. Lt. Governor of Delhi (supra) (3-Judge
Bench) gives an impression that the proposition contained therein
supports the argument of Shri Malhotra, that pre-notification delay is not
relevant for deciding legality of the exercise of the State’s power of
eminent domain and invoking of the urgency provisions contained in the
Act but careful reading of the judgment along with the precedents
referred to in paragraph 8 makes it clear that nothing contained therein
can be relied upon for overlooking the time gap of five years between the
initiation of proposal for establishment of the sub-station and the issue of
notification under Section 4(1) read with Section 17 (1) and (4) of the
Act. That case involved challenge to the acquisition of land for
construction of ‘New Transmitting Station for the Delhi Airport’. The
High Court dismissed the writ petition in limine. The special leave
petition was also dismissed at the threshold. While dealing with the
argument that there was no justification to invoke Section 17(4) of the
Act and to dispense with the inquiry under Section 5A because eight
35
years time was spent in inter-departmental discussions, this court
observed:
“The other ground of attack is that if regard is had to the
considerable length of time spent on inter-departmental
discussion before the notification under Section 4(1) was
published, it would be apparent that there was no
justification for invoking the urgency clause under
Section 17(4) and dispensing with the enquiry under
Section 5-A. We are afraid, we cannot agree with this
contention. Very often persons interested in the land
proposed to be acquired make various representations to
the concerned authorities against the proposed
acquisition. This is bound to result in a multiplicity of
enquiries, communications and discussions leading
invariably to delay in the execution of even urgent
projects. Very often the delay makes the problem more
and more acute and increases the urgency of the necessity
for acquisition. It is, therefore, not possible to agree with
the submission that mere pre-notification delay would
render the invocation of the urgency provisions void. We
however wish to say nothing about post-notification
delay. In Jage Ram v. State of Haryana (1971) 1 SCC
671 this Court pointed out the fact that the State
Government or the party concerned was lethargic at an
earlier stage is not very relevant for deciding the question
whether on the date on which the notification was issued,
there was urgency or not. In Kasireddy Papaiah v.
Government of Andhra Pradesh, AIR 1975 AP 269 it was
held, “… delay on the part of tardy officials to take the
further action in the matter of acquisition is not sufficient
to nullify the urgency which existed at the time of the
issue of the notification and to hold that there was never
any urgency”. In the result both the submissions of the
learned counsel for the petitioners are rejected and the
special leave petitions are dismissed.”
(underlining is ours)
36
In making the aforesaid observation, the Court appears to have been unduly
influenced by what was perceived at the relevant time as pulling of strings in
the power corridors by the interested persons which resulted in frustration of the
public oriented projects. The general observations made in Deepak Pahwa’s
case cannot supply basis for approving the impugned order and the notifications
challenged by the appellants because it is neither the pleaded case of the
respondents nor it has been suggested that the delay was caused due to the
representation made by the appellants or that they brought extraneous pressure
to prevent the acquisition of their land.
24. We may now notice the two decisions referred to in paragraph 8 of the
judgment in Deepak Pahwa’s case. In Jage Ram v. State of Haryana
(1971) 1 SCC 671 the acquisition of land for setting up a factory for the
manufacture of China-ware, Porcelain-ware including wall glazed tiles,
etc., at the instance of a private industrialist by invoking Section 17(2)(c)
of the Act (as amended by Haryana Legislature) was challenged. The
State Government had issued notification dated 14/17.03.1969 under
Section 4 of the Act. Simultaneously, a direction was given for taking
action under Section 17(2)(c) and it was declared that the provisions of
Section 5A shall not apply. On 8.4.1969 the appellants filed writ petition,
which was dismissed by the High Court. This Court negatived the
37
challenge to the invoking of the urgency provisions by making the
following observations:
“The allegations in the writ petition include the assertion
that there was no urgency in the matter of acquiring the
land in question and therefore there was no justification
for having recourse to Section 17 and thus deprive the
appellants of the benefit of Section 5-A of the Act. It was
further alleged therein that the acquisition in question
was made for the benefit of a company and hence
proceedings should have been taken under Sections 38 to
44(B) of the Act and that there was no public purpose
involved in the case. It was further pleaded that the land
acquired was not waste and arable land and that Section
2(c) of the Act did not confer power on the Government
to dispense with the proceedings under Section 5-A. In
the counter-affidavit filed by the Deputy Director of
Industries (Administration), Government of Haryana on
behalf of the State of Haryana, the above allegations
were all denied. Therein it is stated that at the instance of
the State of Haryana, Government of India had issued a
letter of intent to a company for setting up a factory for
the manufacture of Glazed Tiles etc. in village Kasser.
That project was to be started with the collaboration of a
foreign company known as Pilkington Tiles Ltd. The
scheme for setting up the project had been finalised and
approved by the concerned authorities. On November 26,
1968, the Government wrote to one of the promoters of
the project, Shri H.L. Somany asking him to complete the
“arrangements for the import of capital equipment and
acquisition of land in Haryana State for setting up of the
proposed factory”. It was further stated in that
communication that the Government was pleased to
extend the time for completing the project up to April 30,
1969. Under those circumstances it had become
necessary for the State of Haryana to take immediate
steps to acquire the required land. It was under those
circumstances the Government was constrained to have
recourse to Section 17 of the Act. The Government
38
denied the allegation that the facts of this case did not
come within the scope of Section 17(2)(c). It was also
denied that the acquisition in question was not made for a
public purpose.
There is no denying the fact that starting of a new
industry is in public interest. It is stated in the affidavit
filed on behalf of the State Government that the new
State of Haryana was lacking in industries and
consequently it had become difficult to tackle the
problem of unemployment. There is also no denying the
fact that the industrialisation of an area is in public
interest. That apart, the question whether the starting of
an industry is in public interest or not is essentially a
question that has to be decided by the Government. That
is a socio-economic question. This Court is not in a
position to go into that question. So long as it is not
established that the acquisition is sought to be made for
some collateral purpose, the declaration of the
Government that it is made for a public purpose is not
open to challenge. Section 6(3) says that the declaration
of the Government that the acquisition made is for public
purpose shall be conclusive evidence that the land is
needed for a public purpose. Unless it is shown that there
was a colourable exercise of power, it is not open to this
Court to go behind that declaration and find out whether
in a particular case the purpose for which the land was
needed was a public purpose or not: see Smt Somavanti
v. State of Punjab and Raja Anand Brahma Shah v. State
of U.P. On the facts of this case there can be hardly any
doubt that the purpose for which the land was acquired is
a public purpose.
Now coming to the question of urgency, it is clear from
the facts set out earlier that there was urgency. The
Government of India was pleased to extend time for the
completion of the project up to April 30, 1969. Therefore
urgent steps had to be taken for pushing through the
project. The fact that the State Government or the party
39
concerned was lethargic at an earlier stage is not very
relevant for deciding the question whether on the date on
which the notification was issued, there was urgency or
not. The conclusion of the Government in a given case
that there was urgency is entitled to weight, if not
conclusive.”
There is nothing in the aforesaid judgment which can possibly support the cause
of the respondents. The scheme for setting up an industry by a company known
as Pilkington Tiles Ltd. of which one H.S. Somany was a promoter was
finalized on 26.11.1968 and the notification was issued on 14/17.3.1969. This
shows that the time gap between finalization of the scheme and the issue of
preliminary notification was less than four months. Therefore, the judgment in
Jage Ram’s case could not have been relied upon for taking the view that prenotification
delay cannot be considered while deciding legality of the State’s
action to invoke the urgency provisions. That apart, we have serious reservation
whether the Court could have approved the invoking of urgency provisions for
the acquisition of land on behalf of a private company ignoring that there is a
separate Chapter for such acquisition.
25. In Kasireddy Papaiah v. Government of A.P. AIR 1975 AP 269 to which
reference has been made in the judgment of Deepak Pahwa’s case, the
learned Single Judge (Chinnappa Reddy, J., as he then was) rejected the
challenge to the acquisition of land under Section 4(1) read with Section
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17(4). The facts of that case show that notification under Section 4(1)
read with Section 17(4) was issued on 19.5.1970 and was published in
the official gazette dated 24.9.1970. The declaration under Section 6 was
published in official gazette dated 25.2.1971. The writ petition was filed
on 16.9.1971. The High Court held that the time gap of six months was
not fatal to the invoking of the urgency provisions because the land was
acquired for providing house sites to the Harijans. There is nothing in
that judgment which merits serious consideration by this Court.
26. In Chameli Singh v. State of U.P. (supra) this Court simply followed the
observations made by the learned Single Judge of the Andhra Pradesh
High Court in Kasireddy Papaiah’s case and held that the acquisition of
land for providing housing accommodation for Harijans did warrant
invoking of the urgency provisions and delay by the officials cannot be
made a ground to nullify the acquisition. There is no particular discussion
in the judgment about the time lag between the proposal for the
acquisition of land and the issue of notification under Section 4(1) read
with Section 17(1) and (4). Therefore, that judgment is also of no
assistance to the respondents.
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27. It is also appropriate to mention that in paragraph 48 of the judgment in
Anand Singh v. State of UP (supra) this Court did take cognizance of the
conflicting views expressed on the effect of pre-notification and postnotification
delay on the invoking of urgency provisions and observed
that such delay will have material bearing on the question of invocation
of urgency power, particularly, when no material is produced by the
appropriate Government to justify elimination of the inquiry envisaged
under Section 5A.
28. In the result, the appeal is allowed and the impugned order is set aside.
As a corollary, the writ petition filed by the appellants is allowed and the
acquisition of their land is quashed. However, it is made clear that this
judgment shall not preclude the competent authority from issuing fresh
notification under Section 4(1) and taking other steps necessary for the
acquisition of the appellant’s land. If the respondents initiate fresh
proceedings for the acquisition of the appellants’ land then they shall be
free to file objections under Section 5A(1) and they shall also be entitled
to be heard in the inquiry to be conducted by the Collector in terms of
Section 5A(2) of the Act. The parties are left to bear their own costs.
……………………………………J.
[G.S. Singhvi]
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……………………………………J.
[Sudhansu Jyoti Mukhopadhaya]
New Delhi
January 3, 2012.
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