//
you're reading...
legal issues

land acquisition – when to invoke urgent clause – The series of events shows lethargy and lackadaisical attitude of the State Government. In the light of the above circumstances, the respondents are not justified in invoking the urgency provisions under Section 17 of the Act, thereby depriving the appellants of their valuable right to raise objections and opportunity of hearing before the authorities in order to persuade them that their property may not be acquired

                                                                        REPORTABLE

                   IN THE SUPREME COURT OF INDIA

                    CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.6293 OF 2011

       (Arising out of Special Leave Petition (C) No. 15151 of 2011)

Devendra Singh & Ors.                                            .............. Appellants

                                          versus

State of U.P. & Ors.                                                  ...........Respondents

                                   J U D G M E N T

H.L. Dattu, J.

                Leave granted.

2).             This   appeal,   by   special   leave,   is   directed   against   the 

        Judgment and Order dated 08.10.2010 passed by the High Court of 

        Judicature at Allahabad in Civil Misc. Writ Petition No. 61903 of 

        2010 whereby, the writ petition filed by the appellants challenging 

        the   acquisition   of   their   land   for   construction   of   District   Jail   by 

        invoking   Sections   17(1)   and   17(4)   of   the   Land   Acquisition   Act, 

        1894 (hereinafter referred to as "the Act") was dismissed. 

3).           The facts of the present appeal are as follows:-

              The   District   Magistrate,   Jyotiba   Phule   Nagar,   had   sent   a 

       proposal   to   the   Principal   Secretary,   Home/Prisons   Section   4, 

       Government   of   U.P.   for   acquisition   of   land   situated   at   Amroha-

       Naugawan   Sadat   Road   for   the   construction   of   District   Jail  vide 

       letter   dated   24.01.2003.   After   the   gap   of   5   years,   the   Special 

       Secretary,   Prisons   Administration   and   Reforms,   Government   of 

       U.P.,   had   requested   the   District   Magistrate   to   find   the   available 

       lands for acquisition, for the said purpose, in the proximity of the 

       District Head Quarters vide letter dated 16.01.2008. Subsequently, 

       the District Magistrate traced and informed the availability of such 

       lands   in   village   Dasipur   and   other   nearby   villages   for   possible 

       acquisition   to   the   Special   Secretary  vide  letter   dated   25.2.2008. 

       Thereafter, the Special Secretary directed the Selection Committee 

       to   inspect   the   available   lands   regarding   the   feasibility   of   their 

       acquisition for the construction of Jail vide letter dated 22.04.2008. 

       Accordingly,   the   Selection   Committee,   after   conducting   detailed 

       spot inspection of the available lands, found and recommended that 

       the   lands   at   village   Dulhar   Sant   Prasad   were   suitable   for 

       construction   of   Jail   on   05.05.2008.     In   this   backdrop,   the 

       respondent   had   issued   a   notification   dated   05.03.2010   under 

                                                                                      2

Section   4   read   with   Section   17(4)   of   the   Act   for   acquisition   of 

20.870   hectares   of   land   at   village   Dulhapur   Sant   Prasad,   Tehsil 

Amroha, Jyotiba Phule Nagar for public purpose of construction of 

District  Jail.  The same was published in the local  newspapers on 

26.03.2010.     The   relevant   part   of   the   notification   is   extracted 

below:

                 "UTTAR PRADEHS SHASAN KARAGAR  

              PRASHASAN EVEM SUDHAR ANUBHAG - 4

           The   Governor   is   pleased   to   order   the   publication  

           of the following English translation of Notification  

           No. 443/22-4-2010-101 (b) 2000 dated 05 March,  

           2010 for general information:

                                 NOTIFICATION

                       No. 443/22-4-2010-101 (b) 2000

                       Lucknow: Dated 05 March 2010

           Under   subsection   (1)   of   section   4   of   the   Land  

           Acquisition Act, 1894 (Act No. 1 of 1984 (sic.)), the  

           Governor   is   pleased   to   notify   for   general  

           information   that   the   land   mentioned   in   the  

           schedule   below   is   needed   for   the   public   purpose  

           namely,   for   construction   of   the   District   Jail   in  

           District Jyotiba Phule Nagar.

           Being of opinion that provisions of subsection  (1)  

           of section 17 of the said Act are applicable to the  

           said  land  in as  much  as  the said  land  is  urgently  

           required   for   construction   of   the   District   Jail   in  

           District   Jyotiba   Phule   Nagar   and   that   in   view   of  

           the   pressing   urgency   it   is   as   well   necessary   to  

           eliminate to delay likely to be caused by an enquiry  

           under section 5-A of the said Act the Governor is  

           further   pleased   to   direct,   under   subsection   (4)   of  

           section   17   of   said   Act,   that   the   provisions   of  

           section 5-A shall not apply."

                                                                                 3

4).           Since   the   appellants'   land   was   also   included   in   the 

       notification,   they   made   representations   dated   07.04.2010   and 

       20.08.2010   to   the   Land   Acquisition   Officer,   the   District 

       Magistrate, Jyotiba Phule Nagar, the Chief Minister and the Home 

       Secretary, Government of U.P. with the request that their land may 

       not   be   acquired   as   they   had   raised   construction   of   houses,   tube 

       wells   and   lands   are   under   cultivation.   They   also   suggested   the 

       availability of large tracts of alternative lands with no construction 

       and irrigation facility situated within one Kilometer towards North. 

       However,   the   concerned   authorities   did   not   reply   to   these 

       representations   of   the   appellants.   Subsequently,   the   appellants, 

       aggrieved by the said notification, filed Writ Petition No. 22252 of 

       2010 before the High Court of Judicature at Allahabad, which was 

       dismissed   vide   its   Order   dated   22.04.2010   without   deciding   any 

       issue on merits on the ground that the writ petition is premature as 

       the   declaration   under   Section   6   has   not   been   issued.   The   High 

       Court   further   granted   liberty   to   the   appellants   to   raise   all   the 

       available grounds, including the applicability of Sections 17(1) and 

       17(4) of the Act, in order to challenge the acquisition of their land 

       once   the   State   Government   proceeds   to   issue   Notification   under 

       Section 6(1) of the Act. Thereafter, the State Government issued a 

       Notification   dated   06.08.2010   under   Section   6   read   with   Section 

                                                                                       4

17(1) of the Act whereby, it directed the Collector of Jyotiba Phule 

Nagar to take possession of the said land on the expiry of 15 days 

from the date of publication of the Notice under Section 9(1) even 

in   the   absence   of   any   award   being   made   under   Section   11. 

Eventually, the Public Notice dated 03.09.2010 was issued, which 

expressed the intention of the Government to take possession of the 

said   land,   in   which   it   was   directed   to   the   appellants   to   appear 

before the Special Land Acquisition Officer, Jyotiba Phule Nagar. 

The   appellants,   being   aggrieved,   filed   a   Writ   Petition   before   the 

High   Court   of   Judicature   at   Allahabad  interalia  questioning   the 

correctness of the Notification dated 5.3.2010 issued under Section 

4  read  with  Section  17(4)  and  Notification  dated  6.8.2010  issued 

under   Section   6   read   with   Section   17(1)   thereby   dispensing   with 

the   opportunity   of  hearing   and   enquiry   under   Section   5-A   of  the 

Act. The High Court, vide its impugned Judgment and Order dated 

8.10.2010, dismissed the Wirt Petition and allowed the respondents 

to proceed further with acquisition of the said land in terms of the 

Act   on   the   ground   that   the   construction   of   the   District   Jail   is   an 

urgent matter which has been mentioned in the Notification under 

Section 4 as the very purpose of acquisition of the land. Aggrieved 

by this Judgment and Order of the High Court, the appellants are 

before us in this appeal.

                                                                                      5

5).           The   issue   involved   in   the   present   appeal   for   our 

       consideration   is:   Whether   the   respondent   is   justified   in   invoking 

       the   urgency   provision   under   Section   17(1)   and   excluding   the 

       application of Section 5-A in terms of Section 17(4) of the Act for 

       acquisition of the land for construction of District Jail. 

6).           The learned counsel Shri.  Prashant Kumar submits  that the 

       district of Jyotiba Phule Nagar came into existence on 24.04.1997. 

       Since   then,   the   State   Government   had   not   shown   any   kind   of 

       urgency   and   was   only   considering   the   proposal   of   acquiring   the 

       land  for  the  public  purpose  of construction  of the  District  Jail.  It 

       was   only   in   the   year   2010   that   the   State   Government  had   issued 

       Notifications under Sections 4 and 6, invoking urgency provision 

       as contemplated by the Sections 17(1) and 17 (4). In other words, 

       the   lackadaisical   attitude   of   the   State   Government   since   the 

       creation of the new district nearly 13 years ago does not exhibit or 

       depict   any   kind   of   urgency   but   only   lethargy   on   their   part   in 

       acquiring the land. Therefore, the urgency contemplated in the Act 

       cannot be equated with dereliction of responsibility on the part of 

       the   State   Government.   The   learned   counsel   contends   that   the 

       respondents   had   unnecessarily   invoked   the   urgency   provisions 

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

                                                                                      6

land for construction of the District Jail in view of the delay of 13 

years in the issuance of the Notification under Section 4 of the Act 

and   still,   the   said   land   is   under   the   possession   of   the   appellants. 

The learned counsel argues that invoking of the urgency provisions 

under   Section   17(4),   which   excludes   the   application   of   Section 

5-A,   by   the   respondents   in   the   absence   of   any   real   urgency   as 

contemplated by Section 17, amounts to illegal deprivation of the 

right to file objection and hearing of the appellants under Section 

5-A   of   the   Act.   He   submits,   relying   on   various   decisions   of   this 

Court, that the expropriatory legislation like Land Acquisition Act 

must  be given strict construction. He further submits that Section 

5-A   is   a   substantial   right   and   akin   to   Fundamental   Right   which 

embodies   a   principle   of   giving   of   proper   and   reasonable 

opportunity   to   the   land   owner   to   persuade   the   authorities   against 

the   acquisition   of   his   land   which   can   be   dispensed   with   only   in 

exceptional  cases  of real   urgency.     The  learned  counsel  relies  on 

the decision of this Court in Dev Sharan & Others v. State of U.P. 

(2011) 4 SCC 769 in support of his contention that dispensing with 

the   opportunity   of  hearing   and   enquiry   under   Section   5-A   of  the 

Act in view of prolonged lethargy of almost 13 years on the part of 

respondents by invoking emergency provisions under Section 17 is 

illegal and unjustified.  The learned counsel has further cited catena 

                                                                                     7

       of Judgments of this Court in support of his arguments which has 

       already been dealt with by this Court in  Radhy Shyam v.   State of  

       U.P. (2011) 5 SCC 553.

7).            Per Contra, the learned senior counsel Shri. K.K. Venugopal 

       submits that the newly created district of Jyotiba Phule Nagar does 

       not have a District Jail to lodge the prisoners of the district who are 

       presently   accommodated   in   the   Moradabad   District   Jail,   wherein 

       the total population  of inmates  exceeds  by more than three times 

       the capacity of the Jail, causing great hardships to inmates. Further, 

       producing of the prisoners from Moradabad Jail to various Courts 

       in Jyotiba Phule Nagar raises financial  and security concerns. He 

       submits   that   since   the   creation   of   the   new   district,   the   State 

       Government has been making continuous efforts for acquisition of 

       land   to   construct   the   District   Jail.     However,   the   process   of 

       construction of Jail could not be carried forward due to subsequent 

       dissolution   of   the   district   vide   Notification   dated   13.04.2004, 

       which   was   challenged   before   the   High   Court   and   later,   the   High 

       Court quashed the said Notification of Dissolution. Pursuant to this 

       Order   of   the   High   Court,   the   district   was   recreated   in   2004.   He 

       further submits that the State Government had issued a Notification 

       dated 5.3.2010 under Section 4 read with Section 17 (4) of the Act 

                                                                                        8

for   acquisition   of   the   said   land   for   public   purpose   of   urgent 

construction   of   Jail   in   the   newly   created   district   by   invoking 

Section   17(4)   of   the   Act   in   order   to   eliminate   delay   likely   to   be 

caused by enquiry under Section 5-A of the Act. Subsequently, in 

view   of   the   said   urgency,   the   State   Government   had   issued 

Notification   dated   6.8.2010   under   Section   6   read   with   Section 

17(1)  of the  Act and  published  it in  the Newspaper   along with  a 

Public   Notice   under   Section   9   of   the   Act   dated   20.08.2010,   all 

within   a   period   of   5   months.     Further,   the   respondents,   after 

hearing   the   objections   and   claims   of   the   appellants   dated 

03.09.2010   regarding   the   compensation   and   measurement   of   the 

land under Section 9 of the Act, handed over the possession of the 

said   land   to   the   Senior   Superintendent   of   Jails,   Mordabad,   on 

07.01.2011.     The   learned   senior   counsel   submits   that   there   is   no 

lethargy   or   negligence   on   the   part   of   the   State   Government   to 

acquire   the   said   land.   He   further   supports   the   observation   of   the 

High Court in the impugned Judgment that construction of Jail is 

an   urgent   matter   requiring   acquisition   of   the   land   by   invoking 

urgency provisions under Section 17 (1) and Section 17(4) thereby 

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

further contends that the right of the citizens of filing of objections 

and   opportunity   of   hearing   under   Section   5-A   are   subject   to   the 

                                                                                     9

       provisions   of   Section   17   of   the   Act   and   the   same   can   be   legally 

       curtailed   in   the   event   of   any   pressing   need   and   urgency   for 

       acquisition of land in order to eliminate delay likely to be caused 

       by an enquiry  under Section  5-A  of the Act.   The  learned  senior 

       counsel   further   submits   that  Dev   Sharan's   Case   (Supra)  upon 

       which, the appellant had placed strong reliance is not relevant and 

       applicable   to   the   present   case   because   in   that   case,   this   Court 

       invalidated the acquisition of land by invoking urgency provisions 

       for construction of a new Jail when old Jail was already existed in 

       District Shahjahanpur but was located in a densely populated area 

       which   needs   to   be   shifted.   Learned   Senior   Counsel   has   placed 

       reliance   on   the   decisions   of   this   Court   in  Deepak   Pahwa   v.   Lt.  

       Governor of Delhi, (1984) 4 SCC 308 and  Chameli Singh v. State  

       of U.P., (1996) 2 SCC 549  in  support of his arguments that even 

       the   delay   and   lethargy   on   the   part   of   the   respondents   will   not 

       disentitle them to invoke urgency provisions under Sections 17 of 

       the Act.  

8).            The issue before us is no more  res integra  as it has already 

       been   decided   by   this   Court   in  Radhy   Shyam's   Case  (Supra)   in 

       which one of us was the party (G.S. Singhvi, J.) wherein this Court 

       has considered the development of the jurisprudence and law, with 

                                                                                          10

respect to invoking of the urgency provisions under Section 17 vis-

`-vis right  of the  landowner to file  objections  and opportunity  of 

hearing and enquiry under Section 5-A of the Act, by referring to 

plethora of earlier decisions of this Court.   This Court had culled 

out   various   principles   governing   the   acquisition   of   the   land   for 

public purpose by invoking urgency thus:

           "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   Spg.   and   Wvg.  

           Co. Ltd.46,  Charanjit Lal Chowdhury  v.  Union of  

           India47  and  Jilubhai Nanbhai Khachar  v.  State of  

           Gujarat48.

           (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 Haryana49; State of Maharashtra 

           v.  B.E.   Billimoria50  and  Dev   Sharan  v.  State   of  

           U.P.242

           (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  

                                                                                  11

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,   the   State   can   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   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.

                                                                         12

                            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."

9).            In view of the above it is well settled that acquisition of the 

       land   for   public   purpose   by   itself   shall   not   justify   the   exercise   of 

       power   of   eliminating   enquiry   under   Section   5-A   in   terms   of 

       Section   17  (1)   and   Section   17   (4)  of  the   Act.    The   Court  should 

       take judicial notice of the fact that  certain  public  purpose such as 

       development  of residential,  commercial,  industrial  or  institutional 

       areas by their intrinsic nature and character contemplates planning, 

                                                                                            13

        execution   and   implementation   of   the   schemes   which   generally 

        takes  time   of  few years.     Therefore,   the   land  acquisition  for  said 

        public purpose does not justify the invoking of urgency provisions 

        under   the   Act.   In  Radhy   Shyam   (Supra),   this   Court,   whilst 

        considering the conduct or attitude of the State Government  vis-`-

        vis   urgency   for   acquisition   of   the   land   for   the   public   purpose   of 

        planned   industrial   development   in   District   Gautam   Budh   Nagar, 

        has observed:

                   "In  this   case,   the   Development   Authority   sent   the  

                   proposal  sometime  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 for the State Government  

                   to   issue   notification   under   Section   4   read   with  

                   Sections   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   enquiry  

                   under   sub-section   (2)   of   Section   5-A   would   have  

                   defeated the object of the acquisition."

10).            Moreover,   in  Dev   Sharan  Case   (Supra)  the   acquisition   of 

                land for construction of new District Jail, since the old Jail 

                was   overcrowded   and   causing   hardships   including   health 

                and   hygiene   concerns   to   the   inmates,   by   invoking   urgency 

                                                                                             14

provision under Section 17 was quashed on the ground that 

the government machinery had functioned at very slow pace 

in processing the acquisition which clearly evinces that there 

was no urgency to exclude the application of Section 5-A of 

the Act. The Court further observed:

  "35.  From  the   various   facts   disclosed   in   the  said  

  affidavit it appears that the matter was initiated by  

  the   Government's   Letter   dated   4-6-2008   for  

  issuance   of   Section   4(1)   and   Section   17  

  notifications. A meeting for selection of a suitable  

  site   for   construction   was   held   on   27-6-2008,   and  

  the proposal for such acquisition and construction  

  was sent to the Director, Land Acquisition on 2-7-

  2008.   This   was   in   turn   forwarded   to   the   State  

  Government   by   the   Director   on   22-7-2008.   After  

  due   consideration   of   the   forwarded   proposal   and  

  documents, the State Government issued Section 4 

  notification, along with Section 17 notification on  

  21-8-2008.   These   notifications   were   published   in  

  local newspapers on 24-9-2008.

  36. Thereafter, over a period of 9 months, the State  

  Government   deposited   10%   of   compensation  

  payable   to   the   landowners,   along   with   10%   of  

  acquisition   expenses   and   70%   of   cost   of  

  acquisition   was   deposited,   and   the   proposal   for  

  issuance   of   Section   6   declaration   was   sent   to   the  

  Director,   Land   Acquisition   on   19-6-2009.   The  

  Director   in   turn   forwarded   all   these   to   the   State  

  Government   on   17-7-2009,   and   the   State  

  Government   finally   issued   the   Section   6  

  declaration   on   10-8-2009.   This   declaration   was  

  published in the local dailies on 17-8-2009.

  37.     Thus   the   time   which   elapsed   between  

  publication   of   Section   4(1)   and   Section   17  

  notifications, and Section 6 declaration in the local  

  newspapers   is   11   months   and   23   days   i.e.   almost  

                                                                         15

                   one year. This slow pace at which the government  

                   machinery   had   functioned   in   processing   the  

                   acquisition,   clearly   evinces   that   there   was   no  

                   urgency   for   acquiring   the   land   so   as   to   warrant  

                   invoking Section 17(4) of the Act.

                   38.  In   Para   15   of   the   writ   petition,   it   has   been  

                   clearly   stated   that   there   was   a   time   gap   of   more  

                   than   11   months   between   Section   4   and   Section   6  

                   notifications, which demonstrates that there was no  

                   urgency   in   the   State   action   which   could   deny   the  

                   petitioners   their   right   under   Section   5-A.   In   the  

                   counter   which   was   filed   in   this   case   by   the   State  

                   before the High Court, it was not disputed that the  

                   time gap between Section 4 notification read with  

                   Section 17, and Section 6 notification was about 11  

                   months.

                   39.  The   construction   of   jail   is   certainly   in   public  

                   interest   and   for   such   construction   land   may   be  

                   acquired.   But   such   acquisition   can   be   made   only  

                   by strictly following the mandate of the said Act. In  

                   the   facts   of   this   case,   such   acquisition   cannot   be  

                   made by invoking emergency provisions of Section  

                   17.   If   so   advised,   the   Government   can   initiate  

                   acquisition   proceeding   by   following   the   provision  

                   of  Section  5-A  of  the  Act  and  in  accordance  with  

                   law."

11).            In the facts and circumstances of the present case, it is clear 

        that   the   District   of   Jyotiba   Phule   Nagar   was   created   in   the   year 

        1997   which   was,   however,   dissolved   and   recreated   in   2004.   The 

        District Magistrate, Jyotiba Phule Nagar, had sent a proposal to the 

        Principal   Secretary,   Home/Prisons,   Government   of   U.P.   for 

        acquisition   of   land   for   the   construction   of   District   Jail   on 

        24.01.2003 which is undoubtedly a public purpose. After the lapse 

                                                                                            16

        of 5 years in the year 2008, the State  Government asked  District 

        Magistrate   to   trace   availability   of   lands   for   acquisition   for 

        construction   of   the   District   Jail   in   the   proximity   to   District 

        Headquarters   and   further   requested   the   Selection   Committee   to 

        recommend the land suitable for the said purpose. Thereafter, the 

        Selection Committee recommended the acquisition of the said land 

        as suitable for the construction of the Jail but it took two years for 

        the State Government to issue the said Notifications under Section 

        4   and   Section   6   respectively,   thereby   invoking   the   urgency 

        provisions under Section 17 of the Act.  The series of events shows 

        lethargy and lackadaisical attitude of the State Government. In the 

        light of the above circumstances, the respondents are not justified 

        in   invoking   the   urgency   provisions   under   Section   17   of   the   Act, 

        thereby   depriving   the   appellants   of   their   valuable   right   to   raise 

        objections   and   opportunity   of   hearing   before   the   authorities   in 

        order to persuade them that their property may not be acquired. 

12).           The decision  of this Court in  Chameli Singh  (Supra),  upon 

        which   Shri.   K.K.   Venugopal,   learned   senior   counsel   for   the 

        respondents  has placed reliance, has already  been considered and 

        distinguished   by   this   Court   in  Radhy   Shyam   Case   (Supra)  in   the 

        following terms:

                                                                                       17

                   "74.  In  State   of   U.P.  v.  Pista   Devi,  Rajasthan  

                   Housing Board  v.  Shri Kishan  and  Chameli Singh 

                   v.  State of U.P.  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."

13).            Learned senior counsel for the respondents also relied on the 

        decision of this Court in Deepak Pahwa Case (Supra). In that case, 

        the   land   was   acquired  by   invoking   urgency   provisions   under 

        Section 17  for the purpose of construction of a New Transmitting 

        Station   for   the   Delhi   Airport   after   the   correspondence   of   nearly 

        eight   years   among   the   various   Departments   of   the   Government 

        before   the   Notification   and   the   declaration   was   published   in   the 

        Gazette.     This   Court   has   held   that   mere   pre-notification   delay 

        would not render the invocation of the urgency provisions void as 

        very   often,   the   delay   increases   the   urgency   of   the   necessity   for 

        acquisition.   We   are   afraid   that   the   decision   will   not   come   to   the 

        rescue   of   the   respondents   because   this   Court   has   observed   that 

        delay   only   accelerates   or   increases   the   urgency   of   need   of 

        acquisition, which contemplates that delay does not create a ground 

        or cause for urgency but increases the already existing urgency for 

                                                                                           18

         acquisition of land for any public purpose.  Therefore, the delay, by 

         itself,   does   not   create   urgency   for   acquisition   but   accelerates 

         urgency   only   in   case   it   already   exists   in   the   nature   of  the   public 

         purpose.

14).                 For the reasons aforesaid, we hold that the State Government 

         was not justified, in the facts of this case, to invoke the emergency 

         provision   of   Section   17(4)   of   the   Act.   Therefore,   the   appellants 

         cannot be denied of their valuable right under Section 5-A of the 

         Act.

15).                 In the result, the appeal is allowed. The impugned Judgment 

         and   Order   of   the   High   Court   dated   08.10.2010   is   set   aside.     No 

         order as to costs.

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

                                                                                                  [ G.S. SINGHVI ]

                                                                                            ...........................

                                                                                                                ...J. 

                                                                                                       [ H. L. DATTU ]

         New Delhi,

         August  03,  2011.

                                                                                                                  19

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,884,449 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: