Supreme Court of India
DARSHAN LAL NAGPAL (DEAD) BY L.RS.versusGOVERNMENT OF NCT OF DELHI AND OTHERS
- Citation
- 2012 INSC 1
- Decided
- 3 January 2012
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
Urgency provisions under Section 17 may be invoked only when a delay of even a few weeks or months would frustrate the public purpose, which was not demonstrated in this case, rendering the acquisition invalid.
Summary
The Delhi government sought to acquire 80 bighas 15 biswas of land, including 21 bighas 3 biswas belonging to the appellants, for a 400/220 KV electric sub‑station. It invoked Sections 17(1) and 17(4) of the Land Acquisition Act, 1894, dispensing with the hearing provisions of Section 5A(2) on the ground of urgency linked to the upcoming Commonwealth Games and a new power plant. The appellants challenged the notifications, arguing that there was no real emergency and that a five‑year delay between the proposal and the notification negated any urgency, thereby violating their right to be heard under Article 300A. The Supreme Court held that the urgency provisions can be invoked only when even a short delay would frustrate the public purpose, and the government failed to demonstrate such urgency or to apply its mind to dispense with the hearing. Consequently, the Court set aside the notifications and quashed the acquisition, while allowing the authorities to re‑issue a fresh notification with proper hearing provisions.
Issues considered
- The Government of NCT of Delhi could invoke Section 17(1) and 17(4) of the Land Acquisition Act, 1894 and dispense with the hearing under Section 5A(2) for acquiring the appellants' land.
- Whether the factual circumstances, including a five‑year gap between proposal and notification, justified the claim of urgency.
- Whether the Lieutenant Governor’s approval reflected a conscious decision to dispense with the hearing provisions.
- Whether the acquisition complied with the constitutional guarantee under Article 300A.
Legislation cited
- Constitution of Indias. Article 300A
- Land Acquisition Act, 1894s. 17(1), s. 17(4), s. 4(1), s. 5A(1), s. 5A(2), s. 6(1)
Subjects
land acquisitionurgency provisionsSection 17eminent domainArticle 300Anatural justiceright to be heardpublic purpose
Judgment
[2012] 2 S.C.R. 595
DARSHAN LAL NAGPAL (DEAD) BY l.RS. A
v.
GOVERNMENT OF. NCT OF DELHI AND OTHERS
(Civil Appeal No. 11169 of 2011)
JANUARY 3, 2012 B
[G.S. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
Land Acquisition Act, 1894- s. 17(1), (4) ands. SA (2) -
Proposal for establishment of electric sub-station - Issuance C
of notification invoking s. 17 (1) and (4) and dispensing with
the rule of hearing in s. S A(2) for the purpose of acquiring
land belonging to appellant for the public purpose -
Challenge to - High Court negatived appellants' challenge
to acquisition of their right - On appeal held: There was long D
time gap of more than five years between initiation of the
proposal for establishment of the sub-station and the issue
of notification u/s. 4 (1) read with s. 17 (1) and (4) -
Government of NCT of Delhi did not produce any material to
justify its· decision to dispense with the application of s. SA - E
Approval accorded by the Lieutenant Governor did not contain
anything from which it could be inferred that a conscious
decision was taken to dispense with the application of s. SA
which represents two facets of the rule of hearing - No
tangible evidence produced by the Government of NCT F
before the court to show urgency in establishing the sub-
station 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 u/s. SA(1) and holding of enquiry
by the Collector u/s. 5A(2) would have frustrated the project G
- Thus, the High Court 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 socjety - Order
595 H
•e
596 SUPREME COURT REPORTS [2012] 2 S.CR.
A
passed by the High Court set aside and acquisition of land
of the appellant quashed.
s. 17 (1) and (4) - Invocation of urgency provisions under
- Justification of - Held: Invocation of urgency provisions can
B be justified only if even small delay of few weeks or months
may frustrate the public purpose for which the land is sought
to be acquired.
Constitution of India, 1950 - Article 300A - Eminent
c domain - Exercise of power- Held: State in exercise of power
of eminent domain, can acquire the private property for public
purpose - Compulsory acquisition of the property belonging
to a private individual 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 -
0
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 s. 17 because that results in depriving
the owner of his property. without being afforded an opportunity
of hearing.
E
In the year 2004, DTL Company requested the Delhi
Development Authority for allotment of land for
establishment of electric sub-station. The next year,
different functionaries of DTL made some
F correspondence inter-se in the said matter. Between the
year 2006 and 2008, the officers of the DTL, the DOA and
the Government of N.C.T. of Delhi exchanged letters on
the issue of allotment of land for the sub-station.
Thereafter, the Government of N.C.T. of Delhi issued a
G notification under Section 4(1) read with Section 17(1) and
(4) of the Land Acquisition Act, 1894 for the acquisition
of 80 bighas 15 biswas land. By another notification, the
Land Acquisition Collector was authorised to take
possession of the land. Pursuant thereto, the appellant
H made a representation to MLA that a~. . per Master Plan of
I
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 597
GOVERNMENT OF NCT OF DELHI
Delhi-2021 only 29.6 bigha land was required for the sub- A
station and that barren land available in the area could
be utilized for the same but the representation was not
acceded to. The notifications were issued under Section
4(1) read with' Section 17(1) and (4) and Section 6(1) of
the Act. The appellants filed a writ petitions for quashing B
of notifications on the ground that there was no urgency
for the acquisition of land which could justify invoking
of Section 17(1) and (4) of the Act. The High Court
dismissed the writ petition negating the appellants
challenge to the invoking of s. 14 of the Act. Therefore, c
the appellants filed the instant appeal.
The questions which arose for consideration in the
instant appeal are whether the Government of NCT of
Delhi could have invoked Section 17(1) and (4) of the
D'
Land Acquisition Act, 1894 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 DTL Company at village 'M'; and E
whether the Division Bench of the High Court rightly
negatived the appellants' challenge to the acquisition of
their land.
Allowing the appeal, the Court F
HELD: 1.1. Although in exercise of the power of
eminent domain, the State can acquire the private
property for public purpose, it must be remembered that
compulsory acquisition of the property belonging to a
private individual is a serious matter and has grave G
repercussions on his Constitutional right of not being
deprived of his property with out the sanction of law-
1
Article 300A and the legal rights. Therefore, the State
must exercise this power with great care and
H
- .L
598 SUPREME COURT REPORTS [2012) 2 S.C.R.
A 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
B contained in Section 17 of the Act because that results
in depriving the owner of his property with0.ut being
afforded an opportunity of hearing. [Para 14] [62S-G-H;
626-A-C]
1.-2. It is to be seen whether there was any justification
C 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 1')eeded to
D evacuate and utilize the power generated from· ~ SOO MW
gas based plant at place 'B'. 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
E notification 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 SA of the Act. The' documents
F produced by the parties including the notings recorded
in file and the approval accorded by the Lieutenant
Governor did not contain anything from which could be
inferred that a conscious decision was taken to dispense
with the application of Section SA which represents two
G 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. [Para 1S] [626-C•G]
Sayeedur Rehman v. State of Bihar (1973) 3 SCC 333:
H 1973 (2) SCR 1043; Maneka Gandhi v. Union of India (1978)
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 599
GOVERNMENT OF NCT OF DELHI
1 SCC 248: 1978 (2) SCR 621; Mohinder Singh Gill v. Chief A
··Election Commr. (1978) 1 SCC 405: 1978 (2) SCR 272;
Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664:
1981 (2) SCR 533; A.K. Kraipak v. Union of India (1969) 2
SCC 262: 1970 (1) SCR 457; State of Orissa v. Dr. Binapani
Dei {1967) 2 SCR 625; Munshi Singh v. Union of India (1973) B
2 SCC 337:1973 (1) SCR 973 - referred to.
Ridge v. Baldwin {1964) AC 40 - referred to.
1.3. It is also apposite to mention that no tangible
evidence was produced by the respondents before the C
court to show that the task of establishing the sub-station
at place 'M' was required to be accomplished within a
fixed schedule and the urgency was such that even few
months time, which may have been c9nsumed in the
filing of objections by the land owners and other D
interested persons under Section 5A(1) and holding of
inquiry by the Collector under Section 5A(2), would have
frustrated the project. 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 ofsub-station at village 'M' was absolutely
imperative. The High Court was not justified in rejecting
the appellants' challenge to the invoking of urgency F
provisions on the premise that the land was required for
implementation of a project which would benefit large
section of the society. The majority of the projects
undertaken by the State and its agencies/
instrumentalities, the implementation of which requires G
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
H
J.
600 SUPREME COURT REPORTS [2012] 2 S.C.R.
A dispense with the inquiry contemplated under Section SA,
which would necessarily result in depriving the owner of
his property without any oppottUnity to raise legitimate
objection. However, the invok-ing of the urgency
provisions can be justified only if there exists real
s emergency which cannot brook delay of even few weeks
or months. In other words, the urgency provisions can
be invoked only if even small delay of few weeks or
months may frustrate the public purpose for which the
land is sought to be acquired. Nobody can contest that
c 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 wanted 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,
0 private individuals should be deprived of their property
without even being heard. [Para 21]·[630-G-H; 631-A-G]
I
1.4. The idea of establishing 400/220 KV sub-station
was mooted prior to August, 2004. For next almost three
E years, the officers of the DTL and the ODA exchanged
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
jby invoking Section 17 of the Act. This became a tool in
F 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
G established on emergency basis, the authorities of the
DTL would not have waited for five y&ars 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
H invoking Section 17 of the Act. However, the fact of ttie
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 601
GOVERNMENT OF NCT OF DELHI
matter Is that the concerned officers I functionaries of the A
DTL, the ODA 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 B
organised in October, 2010, it took more than one year
and two mon~hs to the competent authority to issue the
preliminary notification. Therefore, the view taken by the
High Court on the sustainability of the appellants'
challenge to the acquisition of their land cannot be c
approved. [Para 22] (632-D-H; 633-A]
Deepak Pahwa v. Lt. Governor of Delhi (1984) 4 SCC
308: 1985 (1) SCR 588; Jage Ram v. State of Haryana
(1971) 1 SCC 671; Kasireddy Papaiah v. Government of A.P.
AIR 1975 AP 269 - referred to. D
1.5. The impugned order is set aside. 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 E
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 F
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. [Para 28] [639-A-C]
First Land Acquisition Collector and Ors. v. Nirodhi
Prakash Ganguli and Anr. (2002) 4 SCC 160: 2002 (2) SCR G
326; Union of India & Ors. v. Praveen Gupta and Ors. (1997)
9 SCC 78: 1996 (7) Suppl. SCR 201; Nand Kishore Gupta
and Ors. v. State of UP. and Ors. (2010) 10 sec 282: 2010
(11) SCR 356; Bijwasan Gram Vikas Samiti v. Lt. Governor
and Ors.WP (C) No. 1307/2010, decided on 5.10.2010; Rajiv H
602 SUPREME COURT REPORTS [2012) 2 S.C.R.
·A Joshi v. Union of India 2009 (159) DLT 214; Rajinder Kishan
Gupta and Anr. v. Lt. Governor, Government of NCT of Delhi
2010 (114) DLT 708; Sumit Import Services Ltd. and Anr. v.
Delhi Metro Rail Corporation and Ors. 2008 (103) DRJ 263;
Mis. ,A.a. Tools Ltd. and Anr. v. Union of India WP (C)
B No.4611/1996, decided in 3.2.2010; Deepak Resorts v.
Union of India 2008 (149) DLT 582; Ajay Kumar Sanghi v.
Delhi Police 2009 (163) DLT 74; Union of India and Ors. v.
Pramod Gupta (1997) 9 SCC 78: 1996 (7) Suppl. SCR 201;
Sheikhar Hotels Gulmohar Enclave v. State of U.P. (2008) 14
c SCC 716: 2008 (8 ) SCR 273; Jai Narain v. Union of India
(1999) 1sec9; Anand Singh v. State of U.P. (2010) 11 sec
242: 2010 (9) SCR 133; Radhy Shyam v. State of U.P. (2011)
5 SCC 553; Deepak Pahwa v. Lt. Governor of Delhi (1984) 4
SCC 308: 1985 (1) SCR 588; Chameli Singh v. State of U.P.
D (1996) 2 SCC 549: 1995 (6) Suppl. SCR 827; State of U.P.
v. Pista Devi (1986) 4 SCC 251: 1986 (3) SCR 7 43;
Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84:
1.993 (1) SCR 269; Anand Buttons Ltd. v. State of Haryana
(2005) 9 SCC 164; Tika Ram v. State of U.P. (2009) 10 SCC
E 689: 2009 (14) SCR 905; Nand Kishore Gupta v. State of
U.P. (2010) 10 SCC 282: 2010 (11 ) SCR 356; Narayan
Govind Gavate v. State of Maharashtra (1977) 1 SCC 133:
1977 (1) SCR 763; State of Punjab v. Gurdial Singh (1980)
2 SCC 471: 1980 (1) SCR 1071; Om Prakash v. State of U. P.
(1998) 6 SCC 1: 1998 (3) SCR 643; Union of India v. Mukesh
F Hans (2004) 8 SCC 14; Union of India v. Krishan Lal Ameja
(2004) 8 SCC 453: 2004 (1) Suppl. SCR 801; Hindustan
Petroleum Corpn. Ltd. v. Darius Shapur Chenai (2005) 7 SCC
627: 2005 (3) Suppl. SCR 388; Essco Fabs (P) Ltd. v. State
of Haryana (2009) 2 SCC 377; Babu Ram v. State of
G Haryana (2009) 10 SCC 115: 2009 (14) SCR 1111; Dev
Sharan v. State of U.P. (2011) 4 SCC 769: 2011 (3) SCR 728;
State of West Bengal v. Prafu/la Churan Law (2011) 4 SCC
537; Devender Kumar Tyagi v. State of U.P. (2011) 9 SCC
164; Narayan Govind Gavate v. State of Maharashtra (1977)
H 1 SCC 133: 1977 (1) SCR 763 - referred to.
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 603
GOVERNMENT OF NCT OF DELHI
Case Law Reference: A
2002 (2) SCR 326 Referred to. Para 8
1996 (7) Suppl. SCR 201 Referred to. Para 8
2010 (11) SCR 356 Referred to. Para 8
B
2009 (159) DLT 214 Referred to. Para 8
2010 (114) DLT 708 Referred to. Para 8
2008 (103) DRJ 263 Referred to. Para 8
2008 (149) DLT 582 Referred to.
c
Para 8
2009 (163) DLT 74 Referred to. Para 8
1996 (7) Suppl. SCR 201 Referred to. Para 8
2008 (8) SCR 273 Referred to. Para 8 D
(1999) 1 sec 9 Referred to. Para 8
2010 (9) SCR 133 Referred to. Para 9
(2011 > 5 sec 553 Referred to. Para 9 E
1985 (1) SCR 588 Referred to. Para 9
1995 (6) Suppl. SCR 827 Referred to. Para 9
1986 (3) SCR 743 Referred to. Para 11
F
1993 (1) SCR 269 Referred to. Para 11
(2005) 9 sec 164 Referred to. Para 11
2009 (14) SCR 905 Referred to. Para 11
G
2010 (11) SCR 356 Referred to. Para 11
1977 (1) SCR 763 Referred to. Para 11
1980 (1) SCR 1071 Referred to. Para 11
1998 (3) SCR 643 Referred to. Para 11 H
604 SUPREME COURT REPORTS [2012] 2 S.C.R.
A (2004) 8 sec 14 Referred to. Para 11
2004 (1) Suppl. SCR 801 Referred to. Para 11
2005 (3) Suppl. SCR 388 Referred to. Para 11
(2009) 2 sec 311 Referred to. Para 11
B
2009 (14) SCR 1111 Referred to. Para 11
2011 (3) SCR 728 Referred to. Para 11
(2011) 4 sec 537 Referred to. Para 11
c
(2011) 9 sec 164 Referred to. Para 11
1977 (1) SCR 763 Referred to. Para 13
1973 (2) SCR 1043 Referred to. Para 16
D 1978 (2) SCR 621 Referred to. Para 17
1978 (2) SCR 272 Referred to. Para 18
1981 (2) SCR 533 Referred to. Para 19
E (1964) AC 40 Referred to. Para 19
1970 (1) SCR 457 Referred to. Para 19
(1967) 2 SCR 625 Referred to. Para 19
1973 (1) SCR 973 Referred to. Para 20
F
(1971) 1 SCC_671 Referred to. Para 24
AIR 1975 A_f_-269 Referred to. Para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G 11169 of 2011.
From the Judgment & Order dated 14.01.2011 of the High
Court of O.elhi at New Delhi in Writ Petition (Civil) No. 13376
of 2009. ~·
H
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 605
GOVERNMENT OF NCT OF DELHI
Dhruv Mehta, Ashish Was, Tamali Wad for the Appellant. A
P.P. Malhotra, ASG, Najmi Waziri, Neha Kapoor,
Sudarshan Rajan, Rachana Srivastava, Ranchi Daga, Krutin
Joshi, Abhinav Mukerji for the Respondents.
The Judgment of the Court was delivered by B
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 c
fhe 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 D
whether the Division Bench of the Delhi 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 E
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 F
record produced before t.he 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 G
of land. For the next about 10 months nothing appears to have
happened. Between June and October, 2005 different
functionaries of DTL made some correspondence inter-se in
the matter of establishment of the sub-station. On 5/6.12.2005,
Manager (400/220 KV SS&L) sent a communication to the H
606 · SUPREME COURT REPORTS (2012) 2 S.C.R.
A 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), DOA informed the DTL that allotment of sites
B suggested by it is not 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 DOA and the Government of N.C.T. of Delhi
C 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,
D DTL requested the DOA 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
E sub-station which could be accommodated in a space of about
200 x 125 m·eters as against the original requirement of 700 x
500 meters. The relevant portions of that letter are extracted
below:
F "In pursuance of above, a meeting was held with Vice-
Chairman, DOA 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 ODA and the concerned ADM of the area '
G had identified the land in their joint inspection held on 30th
June, 2008. Copy of Khasra Nos. and their Report is
enclosed as Annexure-1. However, in the meantime ODA
informed that the land in question is not acquired by DOA.
It was further informed that as per Master Plan, Agriculture/
Green area can be utilized for Utilities. Copy of the letter
H
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 607
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
No. F.6(4)2004/MP/D-127 dated 19.5.2008 is enclosed as A.
Annexure-11. Since the establishment of the Grid Station
is of paramount importance for strengthening the power
supply in East Delhi, DOA 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 B
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 C
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. n
D
(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 E
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 F
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 G
the establishment of a 220 KV substation in East Delhi for
evacuation of power.
Officers of Delhi Transco Limited along with officers of
DOA a-nd concerned ADM have identified the land H
608 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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-11. DDA has informed that the land
B 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) ODA
letter dated 19.05.2008 is enclosed as Annexure-111. The
proposed site has already been taken up with VC, ODA
c 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
D
identified peace of land in East Delhi in favour of
Deparlment of Power, GNCTD as provided under section
17 of the Lanc;J Acquisition Act at the very earliest,:
(underlining is ours)
E
Soon thereafter, the Land and Building Department sent letter
dated 30.9.2008 !o Additional District Magistrate-cum-Land
Acquisition Collector (North-East) to send the following
information/documents:
F "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.
G 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
H
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 609
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
measuring 250 x 200 sq. mts. with approach road will be A
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 joirit site inspection carried out on B
12.01.2009.
2.5 On its part, the DOA 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 C
communication dated 16.6.2009 to the ODA 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. D
mts. by invoking Sections 4 and 6 read with Srction 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:
E
"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. F.11 (88)/2008/Power/2186 dated F
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 letterctated 31.01.2009 (P-
28/C) forwarded draft notification u/s 4 & 6 (P-26 & 27/C) G
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).
H
610 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 58. The revenue staff scrutinized the draft notificatio'1.and
some discrepancies have been found. The repo.rt 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
B
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
c 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 719109 Jt.
D Director (MP) DD has informed that DOA has no objection
with respect to proposed location of land for establishing
4001200 KV ESS subject to compliance of the following
conditions:-
a. Submission of a layout plan/location plan with
E
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 2001400 KV
F 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.
d. Submission of transmission route alignm~nt plan
G as the surrounding area is thickly populated.
e. . The site shall not be used for any other purpose
other than ESS.
H 61. As the matter is urgent and related to Commonwealth
'
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 611
GOVERNMENT OF NCT OF DEU-:1 [G.S. SINGHVI, J.]
Games, if approved Hon'ble LG. may be requested to A
kindly approve acquisition of land measuring 80 Bigha 15
Biswa as per the draft notifications placed opposite for
acquisition of land for establishment of 400 x 200 KV sub-
station in village-Mandoli and issuance of notification u/s
4 read with 17(4) and section 6 along with 17(1) of Land B
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 C
Mandoli. The proposal has been received from Power
Department, Govt., of NCT of Delhi, which is available at
page 6/C. It h~s been mentioned in the proposal that
Hon'ble Prime inister of India has laid the foundation
stone for 155 M gas based power plant at Bawana on
24-3-2008 which is being constructed by Pragati Power D
Corporation Limited, a company owned by Govt., of NCT
of Delhi. It has been also mention~d 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 E
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 F
is scheduled to be commissioned before the
Commonwealth Games, 2010.
64. The Land Acquisition Collector (NIE) has prepared a
draft notification under section 4 & 6 (page 26 & 27/C) G
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) H
612 SUPREME COURT REPORTS [2012) 2 S.C.R.
A and boundary walls in 3 Khasras. The DOA 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
B
that I.and 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
c 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 ~ection 6 along with 17(1) of Land
Acquisition Act, 1894."
D
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
E
400x200 kv station at village Mandoli and the draft
notifications prepared by LAC (North-East).
I am fully satisfied that the land measuring 80 Bigha 15
Biswa is urgently required for above purpose. In view of
F the urgency of the scheme, I order that the provisions of
section SA 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/-
G Tejendra Khanna
Lt. Governor Delhi
26.09.2009."
3. In compliance of the direction given by the Lieutenant
H Governor, the Government of N.C.T. of Delhi issued notification
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 613
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
dated 13.10.2009 under Section 4(1) read with Section 17(1) A
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 B
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- C
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 D
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 E
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 DOA clearly shows that there was no
urgency in the establishment of the sub-station and the cause F
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 G
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 H
614 SUPREME COURT REPORTS (2012] 2 S.C.R.
A 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
B 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
C Bawana by a Government owned company, viz., Pragati Power
Corporation Limited; that the plant is 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
D 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 Gov~rnment of NCT of Delhi made a request
for initiation of the acquisition proceedings on urgent basis; that
E 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
F 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 SA 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
G 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 of the land for the purpose of
construction of sub-station by the DTL in the larger public
H interest. ·
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 615
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J,]
6. In a separate written statement filed on behalf of the DTL A
. it was pleaded that decision was taken by the Government to
establish 400 I 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 B
7 of the counter affidavit of the DTL reference was made to the
decision taken by the Government to construct 1500 MW
Pragati Ill Power Plant at Bawana IPGCL; 2 x 490 MW Thermal
Power Stations at Dadri and 1500 MW Thermal Station at
Jhajjar and also to establish grid sub-stations for evacuation c
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 o
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 DOA, Land and
Building Department, Land Acquisition Collector, Government
of NCT of Delhi and its own officers. In paragraphs 13, 14 and E
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 F
the answering respondent because 80 bighas are required
for the establishment of the proposed sub-station. Further,
the said Gram Sabha's land does not give any entrance I
exit point towards State Highway. Therefore, the acquisition
of the said Gram Sabha's land does not serve any G
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 H
616 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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.
B
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
c 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
D 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
E answering respondent whereas in feed i.e. 400 KV
transmission line from Dadri Generatin'g Station upto the
proposed grid sub-station at East of Loni Road."
7. The Division Bench of the High Court noticed the
F correspondence exchanged between the DTL, the DOA and
the Government of NCT of Delhi and proceeded to observe:
"T~e 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
G a myopic view of the requirement for such a project. No
doubt, endeavour was to establish the sub-station before
the Commonwealth Games, 201 G 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
H needed to evacuate and utilize the power generated from
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 617
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
1500 MW Gas based Plant at Bawana which is being A
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 B
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 c
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
0
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
E
by the Competent Authority dispensing with the enquiry
under Section SA 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) F
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 sec 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 G
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 H
618 SUPREME COURT REPORTS [2012) 2 S.C.R.
A sc:me 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
B (103) DRJ 263, Mis. A.B. Tools Ltd. and another v. Union of
India WP (C) No.461111996, decided on 3.2.2010, Deepak
Resorts v. Union of India 2008 (149) DLT 582, Ajay Kumar
Sanghi v. Delhi Police 2009 (163) DLT 74, Union of India and
others v. Pramod Gupta (1997) 9 SCC 78, Sheikhar Hotels
c 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,
0 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
E 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 sec 553 to emphasize that the acquisition of land
for establishment of 4001220 KV sub-station did not warrant
F 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
G to be heard before being deprived of their property, Shri P.P.
Malhotra, learned Additional Solicitor General argued that the
time consumed in the exchange of correspondence between
the functionaries of the Government, the DTL and the DOA ·
cannot be made a ground for nullifying the exercise of the
H State's power of eminent domain. In support of his argument,
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 619
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
Shri Malhotra relied upon the judgments of Deepak Pahwa v. A
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 b_ecaus!f the B
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 c
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 D
compulsory acquisition of land has generated enormous
litigation in the country in last more than five decades and this
Court has been repeatedly called upon to adjudicate upon the
legality of the notifications issued under the Act.
E
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) F
9 SCC 164, Tika Ram v. State of U.P. (2009) 10 sec 689,
Nand Kishore Gupta v. State of U.P. (2010) 10 sec 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 G
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
cExpress Way has been approved. As against this, the
acquisition of land by invoking the urgency provisions for the H
public purposes, like, planned residential, commercial,
620 SUPREME COURT REPORTS
. [2012] 2 S.C.R.
A industrial or institutional development has been disapproved in
Narayan Govfnd Gavate v. State of Maharashtra (1977) 1
SCC 133, State of Punjab v. Gurdial Singh (1980) 2 SCC 471,
Om Prakash v. State of UP. (1998) 6 SCC 1, Union of India
v. Mukesh Hans (2004) 8 SCC 14, Union of India v. Krishan
B Lal Arneja (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 UP. (supra), Dev Sharan v. State of UP. (2011) 4 SCC 769,
C State of West Bengal v. Praful/a Churan Law (2011) 4 SCC
537 , Radhy Shyam v. State of U.P. (supra) and Devender
Kumar Tyagi v. State of UP. (2011) 9 SCC 164 because the
explanation given by the acquiring authority for invoking Section
17(1) and/or 17(4) was found to be wholly unsatisfactory or it
was found that there was total non-application of mind by the
0
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
E 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
F 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 acquisition of land for a residential
colony to be constructed by Gorakhpur Development Authority,
G 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
H
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 621
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
unforeseen emergency is provided in Section 17 of the Act. A
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 B
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. c
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 D
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 E
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. F
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 G
germane to the purpose, 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 H
622 SUPREME COURT REPORTS (2012] 2 S.C.R.
A Section 17( 1) are not stated in the provision itself.
Ge11erally 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
B 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
c 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.
E 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
F laid down a proposition contrary to the decision in Narayan
Govind Gavate. We agree.
48. As regards the issue whether pre-notification and post-
notification delay would render the invocation of urgency
power void, again the case law is not consistent. The view
G
of this Court has differed on this aspect due to different
fact situation prevailing in those cases. In our opinion such .
delay will have material bearing on the question of
invocation of urgency power, particularly in a situation
where no material has been placed by the appropriate
H
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 623
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
Government before the court justifying that urgency was of A
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 8
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 sec 133 and also adverted to other judgments, in
which the importance of the rules of natural justice has been C
highlighted, and culled out the following principles:
"(i) Eminent domain is a right inherent in every sovereign
to take and appropriate property ~elonging to citizens for
public use. To put it differently, the sovereign is entitled to D
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 - D.warkadas Shrinivas v.
Sholapur Spg. and Wvg. Co. Ltd., Charanjit Lal E
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
F
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. Bil/imoria and Dev Sharan v.
State of U.P. --
G
(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 H
624 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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
c 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 )Jearing
D 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-
E 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
F 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
G 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
H apply their mind to the relevant factors and the records.
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 625
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
(vii) The exercise of power by the Government under A
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 B
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 ). c
(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 D
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 E
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.
F
(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."
G
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 purpose, it must be remembered
that compulsory acquisition of the property belonging to a
private individual is a serious matter and has grave H
•
626 SUPREME COURT REPORTS [2012] 2 S.C.R.
A ·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
B 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
c hearing.
1S. 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
D 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 1SOO 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
E initiation of the 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. 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
F application of Section SA 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
G with the application of Section SA which represen~s 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
H
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 627
. GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
partem was highlighted by the three-Judge Bench in Sayeedur A
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
8
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 C .
conduce to just and right 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: D
"14 . ... The audi alteram partem rule is intended to inject
justice into the law and it cannot be applied to defeat the
ends of justice, or to make the law 'lifeless, absurd,
stultifying, self-defeating or plainly contrary to the common E
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 F
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 G
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 H
628 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B permissible in a given case. It must not be forgotten that
'natural justice is pragma[ical/y 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
c 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."
D (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:
E
"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
F 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
G justice which makes it social justice. We need not go into
these deeps for the present e~cept 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
H the hoary chords of legend and history. Our jurisprudence
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 629
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
has sanctioned its prevalence even like the Anglo- A
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 B
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 C
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 'exqeptions'
to the rules of natural justice are a misnomer or rather are
but a shorthand form of expressing the idea that in those D
exclusionary cases nothing unfair can be inferred by not
affording an 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 E
law lifeless, absurd, stultifying, self-defeating or plainly
contrary to the common sense of the situation."
19. In Swadeshi Cotton Mills v. Union of India (1981) 1
SCC 664 the majority of the three-Judge Bench held that the F
rule of audi alteram partem must be complied with even when
the Government exercises power under Section 18-M 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 G
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. H
630 SUPREME COURT REPORTS [2012] 2 S.C.R.
A (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
B owner of the undertaking and remanded the 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
C 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
D 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
E 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
F 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
G 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
H other interested persons under Section 5A(1), and holding of
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 631
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
inquiry by the Collector under Section 5A(2), would have A
frustrated the project. 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 B
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 c
undertaken by the State and its agencies I 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 0
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 E
· 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 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' F
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 G
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):
H
632 SUPREME COURT REPORTS [2012] 2 S.C.R.
A "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
B 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
c 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
D August, 2004. For next almost three years, the officers of the
DTL and the DOA exchanged 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
E 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
F 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
G the concerned officers I functionaries of the DTL, the DOA 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
H scheduled to be organised in October, 2010, it took more than
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 633
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
\ I
one year and two months to the competent authority to issue A
the preliminary notification. Therefore, we are unable to approve
the view taken by the High Court on the sustainability of the
appellants' challenge to the acquisition of their land.
23. Before concluding we deem it appropriate to notice
8
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 Sench) gives an
impression that the proposition contained thl!lrein supports the
argument of Shri Malhotra, that pre-notification delay is not
relevant for deciding legality of the exercise of the State's power C
of eminent domain and invoking of the urgency provisions
contained in the Act but C(lreful 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 D
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. E
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 SA because eight years time was spent
in inter-departmental discussions, this court observed: F
"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 G
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
H
634 SUPREME COURT REPORTS [2012) 2 S.C.R.
A 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
B 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
c 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
D
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
E learned counsel for the petitioners are rejected and the
special leave petitions are dismissed."
(underlining is ours)
F 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
G 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.
H
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 635
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
24. We may now notice the two decisions referred to in A
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) B
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 c
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 challenge to the invoking of the urgency
provisions by making the following observations:
"The allegations in the writ petition include the assertion D
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 E
made for the benefit of a company and hence proceedings
should have been taken under Sections 38 to 44(8) 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 F
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 G
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 H
636 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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
c 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 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
D
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
E 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
F · '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
G
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
1needed for a public purpose. Unless it is shown that there
H ' ·was a colourable exercise of power, it is not open to this
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 637
GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
Court to go behind that declaration and find out whether A
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 B
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 C
urgent steps had to be taken for pushing through the
project. 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 D
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 E
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 F
months. Therefore, the judgment in Jage Ram's case could not
have been relied upon for taking the view that pre-notification
delay cannot be considered while deciding legality of the
State's action to invoke the urgency provisions. That apart, we
have serious reservation whether the Court could have G
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
H
638 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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 17(4).
The facts of that case show that notification under Section 4(1)
a 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
c 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
D 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
E 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
F respondents.
· 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
G on the effect of pre-notification and post-notification delay on
the invoking of urgency provisions and observed that such delay
will have material bearing on the question of invocation of
urgency power, particularly, when no material is produced by
the appropriate Government to justify elimination of the inquiry
envisaged under Section SA.
H
DARSHAN LAL NAGPAL (DEAD) BY L.RS. v. 639
. GOVERNMENT OF NCT OF DELHI [G.S. SINGHVI, J.]
28. In the result, the appeal is allowed and the impugned A
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 B
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
c
by the Collector in terms of Section 5A(2) of the Act::.The parties
are left to bear their own costs.
N.J. Appeal allowed.
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