Supreme Court of India
HAMID ALI KHAN (D) THROUGH LRS. & ANR.versusSTATE OF U.P. & ORS.
- Citation
- 2021 INSC 774
- Decided
- 23 November 2021
- Disposal
- Appeal(s) allowed
- Bench
- K M JOSEPH
Holding
The Court held that the State had not demonstrated any real urgency and had failed to apply its mind to relevant material, rendering the invocation of Section 17(4) to dispense with the Section 5A hearing unlawful, and therefore the notifications and acquisition were quashed.
Summary
The appellants challenged the acquisition of their land for a residential‑commercial scheme, arguing that the State had improperly invoked the urgency clause under Section 17(4) of the Land Acquisition Act, 1894 to dispense with the hearing mandated by Section 5A. The High Court had dismissed the writ petition, but on appeal the Supreme Court examined whether genuine urgency existed and whether the authority had applied its mind to relevant material. The Court found that the notification was issued more than two years after the proposal, the Section 6 declaration was delayed until the one‑year deadline, and no factual basis justified immediate possession. Consequently, the State failed to meet the burden of proof under Section 106 of the Evidence Act to show exceptional circumstances. The Court held that the invocation of Section 17(4) was unjustified, set aside the Division Bench’s order, quashed the notifications and acquisition proceedings, and ordered the land returned to the appellants.
Issues considered
- The validity of invoking Section 17(4) of the Land Acquisition Act, 1894 to dispense with the hearing under Section 5A.
- Whether there was real urgency justifying the use of the special power under Section 17(4).
- Whether the authority applied its mind to relevant material and had sufficient evidence to support the urgency claim.
- The allocation of the evidential burden under Section 106 of the Evidence Act in challenges to Section 17(4) notifications.
- Whether the impugned notifications and acquisition proceedings should be set aside.
Legislation cited
- Indian Evidence Act, 1872s. 101, s. 102, s. 106
- Land Acquisition Act, 1894s. 17(4), s. 4, s. 5A, s. 6
- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
Subjects
land acquisitionSection 5A hearingSection 17(4) urgency clausepublic purposeeminent domainprocedural fairnessjudicial reviewevidence burden
Judgment
198 [2021]REPORTS
SUPREME COURT 11 S.C.R. 198 [2021] 11 S.C.R.
A HAMID ALI KHAN (D) THROUGH LRS. & ANR.
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 1267 of 2012)
B NOVEMBER 23, 2021
[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
Land Acquisition Act, 1894:
ss. 5A and 17(4) – Special powers in case of urgency –
C Invocation of – Dispensing with hearing of objections u/s. 5A –
Justification of – On facts, issuance of Notifications to acquire land
for construction of a residential colony – Invocation of power u/s.
4 and 17(4) in regard to the propertyof the appellant-land owners
– Writ petition by the appellants challenging the notifications –
Dismissed by the Division Bench – On appeal, held: There was no
D
urgency at all associated with the need to acquire the land
immediately which constitutes the foundation for invoking the
urgency clause – Notificationu/s. 17(4) issued after more than two
years of the proposal sent – Declaration u/s. 6 issued almost one
year after the issuance of notification u/s. 4 – Having regard to the
E nature of the scheme, the delay with which s. 6 declaration was
issued, possession taken and the nature of the material on the basis
of which the proposal was processed, the appellants justified in
contending that the notification u/s. 17(4) dispensing with the inquiry
u/s. 5A was not justified – Meanwhile, the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
F
and Resettlement Act, 2013 has taken the place of 1894 Act – Thus,
no question of the matter being considered for an inquiry being
held u/s. 5A – Order passed by the Division Bench set aside –
Impugned notifications and proceedings based on the same are
quashed and property to be returned to the appellant.
G s. 5A – Hearing of objections under, of the person interested
in the property – Held: s.5A guarantees a right to the person
interested in the property which was the only statutory safeguard to
prevent a compulsory acquisition of his property – Invaluable right
given to a person to ventilate his grievances against the acquisition
H is not to be unjustifiably extinguished – Authority must apply his
198
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 199
U.P. & ORS.
mind to the relevant material before it and its action must not be A
malafide – Merely because the purpose of the acquisition is found
to be a public purpose, the duty of the authority does not end –
Authorities must remain alive and alert to the precious right created
in favour of the citizens which is not meant to be a mere empty ritual
– Furthermore, the power u/s 17 (4) being discretionary, must be
B
exercised with due care – If there is relevant material however meagre
it may be and the authority has without being guided by extraneous
considerations applied his mind and taken a decision, then the court
would adopt a hands-off approach.
s. 17(4) – Special powers in case of urgency – Invocation of
– Held: When a challenge is made to the invocation of power C
u/s.17(4) the writ applicant cannot succeed on bare and bald
assertions – Fact specifically within the exclusive knowledge of the
State must be laid before the court on the basis of the principle in
s. 106 of the Evidence Act – Existence of the exceptional
circumstances justifying invoking of s.17(4) must be established in D
the wake of a challenge – On an appreciation of the evidence made
available by all the parties it is open to the court to conclude that
no occasion arose for resorting to the power u/s.17 (4) which indeed
must be read as an exception to the general rule that the acquisition
of property is made after affording an opportunity the person
adversely affected to demonstrate that the acquisition was E
unjustified.
Allowing the appeal, the Court
HELD: 1.1 The authority is required to form a subjective
opinion. This does not mean that the opinion can be whimsical or F
capricious. There must be materials before the authority. The
materials must be relevant. The authority must apply his mind to
the material. This is apart from the requirement that action must
not be malafide. Undoubtedly the purpose must be a public
purpose. But merely because the purpose of the acquisition is
found to be a public purpose, the duty of the authority does not G
end. He must be satisfied that there is real urgency such that the
invaluable right vouchsafed to a person to ventilate his
grievances against the acquisition is not unjustifiably
extinguished. Section 5A of the Land Acquisition Act guarantees
a right to the person interested in the property which was the H
200 SUPREME COURT REPORTS [2021] 11 S.C.R.
A only statutory safeguard to stave off of a compulsory acquisition
of his property. The power under Section 17 (4) is discretionary.
Being a discretion it must be exercised with due care. It is true
that if there is relevant material however meagre it may be and
the authority has without being guided by extraneous
considerations applied his mind and taken a decision, then the
B
court would adopt a hands-off approach. In the ultimate analysis
as with any other decision a balancing of conflicting interests is
inevitable. The authorities must remain alive and alert to the
precious right created in favour of the citizens which is not meant
to be a mere empty ritual. [Para 22][227-B-F]
C 1.2 It is true again that the decisions in this Court appear
to convey conflicting signals. However, there is a certain element
of consensus on fundamental principles. The dichotomy
essentially has to be resolved by carefully attending to the facts
of each case. As regards, the principles relating to the manner in
D which a challenge to a notification under Section 17(4) must be
approached in the matter of discharging the burden of proof, when
a challenge is made to the invocation of power under Section
17(4) the writ applicant cannot succeed on bare and bald
assertions. The facts which are specifically within the exclusive
knowledge of the State must be laid before the court on the basis
E of the principle in Section 106 of the Evidence Act. Existence of
the exceptional circumstances justifying invoking of Section 17
(4) must be established in the wake of a challenge. The true
concept unravelled by this Court in Gavate’s case is the total
evidence theory. In other words, on an appreciation of the
F evidence made available by all the parties it is open to the court
to conclude that no occasion arose for resorting to the power u/s
17 (4) which indeed must be read as an exception to the general
rule that the acquisition of property is made after affording an
opportunity the person adversely affected to demonstrate that
the acquisition was unjustified. [Para 23][227-F-H; 228-A-C]
G
1.3 Perusal of the impugned notification under section 17(4)
and even Section 6 declaration shows that the land in question is
recited as being required for the public purpose of the
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 201
U.P. & ORS.
Bulandshehar-Khurja Development Authority or for the Kalindi A
Kunj residential/ commercial (supplementary). It is further recited
that as the Governor was convinced about the great necessity of
the land and the provision of section 17 (1) of the Act being
applicable and in view of the necessity, inquiry under section 5A
was not applied on the basis that ‘possibility of delay may be
B
abandoned’. It is further stated that land is required for Kalindi
Kunj residential/commercial scheme. A perusal of the revised
lay out plan inter alia would show that the scheme was a residential
cum commercial scheme. It was to consist of park, community
facilities such health, post office, social and cultural centre and
educational centre. The land which was reserved for the C
residential area is shown as constituting 38.57% of the area of
the scheme. The commercial part of the Scheme was to consist
of 4.9% of the total area of the scheme. The scheme is not a pure
residential scheme. Secondly, the only case which the respondents
have further is that under a scheme 5% of the plots are reserved
D
for the landless. Initially, the land in question, was not proposed
to be acquired. The total land which was proposed to be acquired
was fixed at 52 and odd hectares. [Para 33][233-D-G, H]
1.4 A perusal of the communication dated 29.3.2006 from
the second respondent Authority reveals that according to it,
survey nos. 880 and 893 were being used for keeping a cattle E
market and therefore the lands were not required. It is further
found that in the survey 13 shops were constructed and the land
in these survey were sold for residential house. Being contiguous
with the scheme area, these lands were projected as required on
preparing an amended proposal. However, in the communication F
dated 06.10.2006 issued by the third respondent he refers to
requirement of clean environment and therefore a cattle market
of the animals in the housing area may not be proper. The same
position is again reiterated in communication dated 10.10.2000
as well. The appellants had given a representation on 08.12.2006
to the Chief Secretary praying that the property may not be taken G
for the residential/commercial scheme. Therein, it is inter alia
stated that the cattle market is located at one corner of the
acquired land of 52.361 hectares. The appellants state about their
readiness to construct a separate boundary wall. It is stated to
H
202 SUPREME COURT REPORTS [2021] 11 S.C.R.
A be their only source of income. The declaration under section 6
was issued only on the eve of expiry of one year from 11.4.2008.
The urgency indicated in the file is to tide over the bar of issuance
of declaration under section 6 beyond one year from 11.4.2008
the date on which notification under 4/17 was issued. There is no
indication in the file about the urgency for issuing the declaration
B
immediately after the notification under Section 4. In other words,
the file does not reveal any urgency at all associated with the
need to acquire the land immediately which constitutes the
foundation for invoking the urgency clause. [Para 34-35][234-A-
F]
C 1.5 Notification was issued under section 17(4) in October
2004 regard to 52 and odd hectares of land. The Section 6
declaration is made only in October 2005. The survey numbers
in question in this case according to the respondent is located in
the middle. However, it is not acquired on the basis that the said
D land was being used as cattle market (see communication dated
29.3.2006). The appellants have a definite case that possession
itself was taken despite the availability of power to take possession
immediately, only on 6.1.2006. The proposal to take the further
land was taken in March, 2006 if not earlier. The reason given
for acquiring the land is alleged construction of shops by the
E appellants and the contiguity of the land covered by the land
earlier acquired with the land in question. On the other hand, the
third respondent refers further to the need for clean environment
which is in contradiction to the communication dated 29.3.2006.
[Para 36][234-G-H; 235-A-B]
F 1.6 The material which consists of the communications
addressed to the second respondent and the communications by
the third respondent is seen. Apart from the same, the usual
certificates/forms indicating inter alia that there was no place of
worship located in the scheme was no doubt available. But the
G point is only whether there was material for dispensing with the
inquiry under Section 5A and even, more importantly, whether
the authority applied its mind to it. Even the notification under
section 17(4) came to be issued after more than two years of the
proposal sent sometime in March, 2006 if not earlier. Declaration
under section 6 came to be issued only on 9.4.2009, just two
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 203
U.P. & ORS.
days prior to the first anniversary of the date of notification under A
section 4. More importantly, it is noticed what finally impelled
Government to issue the notification, namely, the apprehension
that if it is not issued within one year of the section 4 notification
the acquisition would lapse. This had nothing to do with urgency
which would have manifested in the section 6 declaration being
B
issued much earlier. This must also be viewed in the background
that though the Section 4(1)/(17) Notification was earlier issued
in regard to 52.361 hectares on 08.10.2004, the declaration under
Section 6 was issued only on 07.10.2005. [Para 38][235-C-G]
1.7 The statutory authority under section 5A of the Act is
expected to give a fair hearing. It can stand between an uncalled C
for proposal to acquire property. Disputed questions of facts in
regard to the property to acquire the property are to be considered
by the same Authority. Yet another pertinent aspect is the fact
that the subject matter of the second acquisition was 2 and odd
hectares. It was apparently just the appellants, who had to be D
given a hearing. Having regard to the nature of the scheme, the
delay with which section 6 declaration was issued, possession
taken and the nature of the material on the basis of which the
proposal was processed, the appellants are justified in contending
that the notification under Section 17(4) dispensing with the
inquiry under Section 5A was unjustified. [Para 39-40][235-G-H; E
236-A-B]
1.8 This appeal arises from the order passed by the High
Court in the year 2000. While issuing notice, this Court in the
SLP stage ordered status quo as on 6.11.2009 be maintained.
Thereafter, the leave was granted on 27.1.2012. The interim order F
was however directed to continue. It is after nearly 12 years that
the case is finally being disposed of. In the meantime, the Land
Acquisition Act was repealed and the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 has taken its place. Therefore, there is G
no question of the matter being considered for an inquiry being
held under section 5A. It is also noted that there is no denial of
the allegation in the writ petition about the lie of the property,
viz., it not being in the middle of the scheme area. [Para 41][236-
C-E]
H
204 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 1.9 The impugned judgment is set aside and the writ petition
filed by the appellants is allowed and the impugned notifications
and proceedings based on the same shall stand quashed. The
property shall be returned back to the appellants. This will be
without prejudice to the rights/powers available to the
respondents under law. [Para 42][236-E]
B
Narayan Govind Gavate and Others v. State of
Maharashtra and Others (1977) 1 SCC 133 : [1977] 1
SCR 763 – relied on.
Om Prakash and Another v. State of U.P. and Others
C (1998) 6 SCC 1 : [1998] 3 SCR 643; Anand Singh and
Another v. State of Uttar Pradesh and Others (2010) 11
SCC 242 : [2010] 9 SCR 133; Radhy Shyam (dead)
through LRS. and Others v. State of Uttar Pradesh and
Others (2011) 5 SCC 553 : [2011] 8 SCR 359; State of
U.P. v. Smt. Pista Devi and Others (1986) 4 SCC 251 :
D [1986] 3 SCR 743; Chameli Singh and Others v. State
of U.P. and Another (1996) 2 SCC 549 : [1995] 6 Suppl.
SCR 827; Rajasthan Housing Board and Others v. Shri
Kishan and Others (1993) 2 SCC 84 : [1993] 1 SCR
269; State OF Haryana v. Eros City Developers Private
E Limited and Others (2016) 12 SCC 265 : [2016] 1 SCR
242 – referred to.
Case Law Reference
[1998] 3 SCR 643 referred to Para 7
F [2010] 9 SCR 133 referred to Para 7
[2011] 8 SCR 359 referred to Para 7
[1986] 3 SCR 743 referred to Para 9
[1995] 6 Suppl. SCR 827 referred to Para 9
G [1993] 1 SCR 269 referred to Para 9
[2016] 1 SCR 242 referred to Para 21
[1977] 1 SCR 763 relied on. Para 23
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 205
U.P. & ORS.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1267 A
of 2012.
From the Judgment and Order dated 28.05.2009 of the High Court
of Allahabad in Civil Writ Petition No.26699 of 2009.
Abhay Kumar, Vijay Kumar, Kumar Milind, Shagun Ruhil, Advs.
for the Appellants. B
Ravindra Raizada, Sr. Adv., Saurav Singh Chauhan, Rajeev Kumar
Dubey, Ashiwan Mishra, Kamlendra Mishra, Ravindra Kumar, Advs.
for the Respondents.
The Judgment of the Court was delivered by C
K. M. JOSEPH, J.
1. The original appellants who stand substituted by their legal
representatives unsuccessfully challenged notifications dated 11.4.2008
and 9.4.2009 issued under the Land Acquisition Act, 1894 (hereinafter
referred to as “the Act”). By virtue of the first notification the powers D
under Section4 and 17(4) of the Act came to be invoked in regard to the
property of the appellants. The Division Bench by the impugned judgment
dismissed the writ petition.
2. A notification under Section 4(1) of the Act dated 8.10.2004
coupled with notification under 17(4) was issued in regard to 52.361 E
hectares of land for the construction of a residential colony under the
name of Bulandshhar Khurja Development Authority, Bulandshehar. Plot
No.881 and 914 belonging to appellants children were included.The
appellants did not raise any objection as the requirement of Section 5A
of the Act stood dispensed with. Declaration under Section 6 of the Act
F
was published on 7.10.2005. It is the specific case of the appellants that
despite the urgency clause being invoked, the possession was taken only
in January 2006. The award was passed on 29.4.2009 only for plot 914
(belonging to the children of appellants). In regard to plot No. 881 which
was also acquired, the compensation was not paid, it was averred. It is
stated that till date on the spot neither any construction under the residential G
scheme has been started nor it ‘appears to be’ in the near future. The
writ petition it must be remembered was filed in the year 2009. Even the
allotment process, it is averred,was not started in regard to 52.81
hectares.Writ petitioners-appellants alleged that they were running a cattle
market in Sy.880 and Sy.893. It is their case that in order to grab more
H
206 SUPREME COURT REPORTS [2021] 11 S.C.R.
A land, the second respondent namely, the Authority started proceeding to
acquire more land allegedly needed for the Commercial cum Residential
Scheme which included the property in question. On 6.1.2006 the
possession of the lands acquired earlier were taken. Allegation of demand
for money by respondent no.3 is made if the appellants wanted plots 880
and 893 to be exempted. On 10.10.2006, the respondent no. 2 (Authority)
B
wrote a letter to the Under Secretary about the existing construction on
the land. In the letter dated 6.10.2006 and 10.10.2006 there is denial of
existence of any cattle market and declaration under Section 143 of UP
Zamindari Abolition & Land Reforms Act, 1950 in regard to Plot No.880
and 893. It is complained that the said letters gave a wholly false and
C incorrect report to the State Government and District Magistrate
respectively. Appellants-Writ Petitioners filed representation dated
18.12.2006. They filed writ petition No. 12379 of 2007 challenging the
letters of the Collector dated 6.10.2006 and that of Vice Chairman of
the Authority dated 10.10.2006. The said writ petition washowever
dismissed as withdrawn on 10.9.2008 when the impugned notification
D
under Section 4 and 17(4) was issued on 11.4.2008. There is reference
to the letters dated 3.1.2008, 8.2.2008 and 8.3.2008. On 27.3.2008 it is
alleged that the 3rd respondent again sent false information that there
are 13 houses over the land in dispute which was again false and against
the spot position (Annexure 14 in W.P.). Reliance was placedon the
E layout plan, the photocopy of which is annexed in Annexure 15. It was
contended on the strength of the same that plot No. 880 and plot No.
893 are situated at the end of Khurja city facing the Aligrah-Khurja
National Highway, that is, the G.T. Road and it is not in the centre of the
scheme as alleged by respondent No. 3 in his report. It is specifically
averred that plot No.880 and plot No. 893 are not located in the centre
F
of the scheme as alleged in the report dated 6.10.2006 and 10.10.2006.
They are alleged to be located at the one end of the city facing G.T.
Road. If a huge boundary wall is erected, the plots can be separated
from the residential area without disturbing the expansion plan of the
scheme. They are ready to put up the wall. There is also no need for
G plots in question for the alleged expansion.There is reference to the
letter dated 29.3.2008 written by the 3rd respondent to the effect that
due to the nature of land it was exempted from the acquisition made
earlier for the main scheme. It is alleged that based on the wrong
contradictory information sent by the vice Chairman, the State
Government issued the impugned notification dated 11.4.2008 purporting
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 207
U.P. & ORS. [K. M. JOSEPH, J.]
to be under section 4 of the Act and also invoking the urgency clause A
under Section 17(4) taking away the right conferred under Section 5A
of the Act. Respondent No.1 also issued notification dated 9.4.2009
invoking Section 17(4) of the Act.
3. A short counter affidavit was filed on behalf of the 2 nd
Respondent Authority. Therein the case set up is as follows: B
The Development Authority under the notifications issued
under 2004 and 2005 has constructed roads and dividers for
approaching all the plots which are being sold as developed plots
for making residential and commercial construction. The Authority
also developed trunk sewer line which would connect sewer line C
with the buildings to be constructed by the purchasers. The further
development carried out is pointed out to be electrification of the
colony by getting poles fixed along with roads. A sub-station of 33
KVA was also got constructed. A copy of the chart of the detailed
development and construction was produced along with the
affidavit. Water supply system and also an overhead tank of 2000 D
kilolitres was also constructed. Development work it is stated was
completed in Rahankhand, Madhavkhand, Udhavkhand,
Govindkhand and Keshavkhand. In the remaining parts
development work is going on. Nearly Rs. 20 crores was already
spent. From the plots advertised, 1016 applicants were allotted E
developed plots, 60 of whom have got sale deeds registered in
their names. Five per cent of the total land to be developed was to
be allotted for the persons living below the poverty line and landless
persons had to be allotted land free of cost. Poor persons of city
living below poverty line are to be given constructed houses in
terms of a scheme, and towards the same construction work was F
being made over 5% of the land. It is thereafter stated that for the
development of the compact colony, it was considered essential
to acquire the land involved in the writ petition. The appellant-writ
petitioners filed a rejoinder affidavit. It is inter alia stated that the
theory of additional requirement to supplement the earlier G
acquisition of 2004-2005 was a farce.
4. A perusal of the impugned judgment of the Division Bench
reveals that two submissions alone were made on behalf of the apellants.
The second submissionwas that there was no urgency to dispense with
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208 SUPREME COURT REPORTS [2021] 11 S.C.R.
A the inquiry under Section 5A of the Act. The Division Bench dealt with
the submission in the following manner:
“A short counter affidavit has been filed by the Authority
showing that the development work has been done for the Yojna.
The rod, dividers, sewer line, water line, electric poles, and electric
B sub station have been constructed. The plots have been allotted.
The total bond money for the Yojna is Rs.24.09 crores. Out of this
amount the most of development has been done and Rs.19.74
crores have been disbursed. A rejoinder affidavit has been filed
but there is no specific denial of the same. It is not correct to say
that no work has been done. The satisfaction regarding urgency
C is not vitiated on this account.”
5. The first submission was based on the Government Order which
interdicted the acquisition of land having an area less than 10 acres. This
is rejected as the government order was found to be a mere guideline.
D Thereafter it is noted:
“8. A map of the sport has been annexed along with the
writ petition. A detailed map was also produced before the Court.
The map shows that the property in dispute is covered from three
side by the land of the Yojna and on the fourth side, there is road.
E It shows that the land is necessary for proper implementation of
the Yojna, it is eminently suited.
9. the petitioner run a cattle market over the property in
dispute. It may not be appropriate to run it between residential
area. However, compensation be provided expeditiously so that
F the petitioner may make alternative arrangements.”
The writ petition was dismissed.
6. We heard Mr. Abhay Kumar, learned counsel onbehalf of the
appellant and Mr. R.K. Raizada, learned senior counsel for the first
respondent and Shri Ravindra Kumar, learned Counsel for the Second
G Respondent.
7. Learned counsel for the appellants no doubt contended that the
property in question was excluded from the first acquisition. There was
no need to acquire the property and he further contended that deprivation
of the right under Section 5A was wholly unjustified. He adverted to the
H map and pointed out that the property in question was not in the middle
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 209
U.P. & ORS. [K. M. JOSEPH, J.]
of the Scheme area and, in fact, no work was actually done pursuant to A
the first notifications. Referring to the dates on which events took place,
he would contend that the invoking of the urgency powers and dispensing
with the inquiry under Section 5A was entirely unjustified. It is the
contention of the appellants that small pieces of land could not have
been acquired in subsequent acquisition without any genuine need much
B
less for the alleged purpose of preventing any particular use that is
unauthorised construction and or existence of cattle market. There is no
imminent requirement. It is a case of malafides. The appellants lay store
by Om Prakash And Another v. State OF U.P. And Others 1, Anand
Singh And Another v. State Of Uttar Pradesh And Others2 and Radhy
Shyam (dead) through LRS. and Others v. State of Uttar Pradesh and C
Others 3.
8. Per contra, Mr. Ravindra Raizada learned Senior Counsel
appearing on behalf of the first respondent, on the other hand contended
that there was a public need and the enquiry under Section 5A was
dispensed with on the basis of proper material. He would contend that D
the jurisdiction of the writ court to judicially review the decision taken
under Section 17 to dispense with Section 5A was limited. The decision
rests on the subjective satisfaction of the Authority. He also produced
additional documents which contain the inputs allegedly relied upon to
justify the dispensing with the inquiry under Section 5A of the Land
Acquisition Act, 1894. E
9. Counter Affidavit is filed by the Second Respondent. In the
written submission based on the same the following stand is made.
The present case is concerned with the Master Plan of Khurja
2001. The town of Khurja is an important town in the Delhi Howrah F
Line. The town known for its pottery work witnessed population
growth of 22.5% between 1991-2001. It caused an extreme
housing shortage.
In a meeting held on 03.05.2002 it approved a proposal to acquire
52 hectares of land for the Kalindi Kunj Residential Scheme. After the G
approval of the scheme the appellants unauthorisedly constructed 13
number of shops. There were notices issued in this regard. The state
1
1998 (6) SCC 1
2
2010 (11) SCC 242
3
2011 (5) SCC 553 H
210 SUPREME COURT REPORTS [2021] 11 S.C.R.
A government called upon the second respondent to deposit by a letter
dated 24.09.2003 Rs. 2,29,17,8000 representing 10 percent of the
appropriate compensation. The collector sent a proposal on 08.10.2004
recommending the invoking of the urgency clause. At that time the plots
in controversy in this case that is plot no. 880 and 893 were left out
because the appellants then represented that there was a Masjid and
B
Petrol Pump in the said plots. It was not a case where the plots in question
were included and then excluded by the declaration.The NCRPB
prepared the Master Plan on 13.12.2004 for this city.The NCRPB
sanctioned a loan on Rs.57.34 crores for the Kalindi Kunj Residential
Scheme having a total area of 55.453 hectares. The Respondent no. 2
C was incurring interest liability of Rs. 82000/- per day. The Kalindi Kunj
Scheme was intended to have a model infrastructure and amenities.
The Second Respondent deposited the total amount of Rs. 25 crores by
December pursuant to letter dated 30.12.2004 issued by the land
acquisition officer. The Regional Plan 2021 of the NCR came to be
approved on 17.09.2005. This included the U.P. Sub Regional Plan
D
interalia taking in the city of Khurja. The Section 6 declaration was
issued on 17.10.2005. On 08.02.2008 the State government called upon
the second respondent to explain why an area of 2.692 hectare was
required. The second respondent responded by pointing out that the land
was sought to be acquired as part of the residential scheme and the land
E falls in the midst of the development area. On 11.04.2008 the department
recommended for approval of sanction by the Minister which was granted
and the notification was issued in respect of the properties in dispute.
On 11.04.2008 notification under Section (4) read with Section (17) was
issued. The appellants did not challenge this notification. The notification
under Section 6 read with Section 17 was issued on 09.04.2009. The
F
Writ Petition was filed by the appellant on 20.05.2009. It is the further
contention of the Second Respondentthat theWrit was dismissed on
28.05.2009. On 06.07.2009 the SLAO offered possession of the land. It
was taken over by the State and handed over to the Second Respondent
on 27.07.2009.Land was mutated in its name on 16.09.2009. While issuing
G notice on 06.11.2009, this Court granted status quo. Housing has been
accepted as a public purpose. Reliance is placed on the Constitution
Bench Decision in 1975 (1) SCR 802. It is contended that there is delay
and latches in so far as the notification dated 11.04.2008 was challenged
only on 20.05.2009. What is relevant is the decision-making process.
The land is lying fully vacant with no construction. The appellants are
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 211
U.P. & ORS. [K. M. JOSEPH, J.]
not residing thereon. The only use is to put it for holding a cattle fair A
which use would be contrary to public interest and environment. With
reference to the state of the case law the second respondent seeks to
essentially draw support from State of U.P. V. Smt. Pista Devi and
others4 and Chameli Singh and others v. State of U.P. And Another5.
Radhey Shyam (supra) is distinguishable. It is contended that in the said
B
case there was special allegation of discrimination. In the present case
there is no case of discrimination. There is no case of malafides. There
is no allegation of malafides. It is contended that the decision in Radhey
Shyam case (supra) did not discuss the dicta in Rajasthan Housing
Board and Others v. Shri Kishan and Others6. It is further contended
that inviting objection in the present case would have been an empty C
formality. This is for the reason that the appellant has not come out with
any objection either in the writ petition or the SLP which they would
have advanced in the event a hearing under Section 5A took place. The
project had to be completed in a time bound manner. The land was
required under the supplementary plan. This is clear from the map
D
produced before the High Court. The concept of prejudice is pressed
into service to contend that appellants would not be prejudiced. It is
further contended that urgency in the present case continues. Free plots
are allotted to landless etc. though it is subject to a limit of 5 percent of
the total area. Lastly it is contended that the land of the appellantsfall in
the midst of the development scheme. It is contended that the land in E
plots no. 880 and 893 is required for widening of the road of NH 9,
school, park, health care centre and creation of 26 nos. of residential
plots of 160 square meter size and 10 plots of 200 square meter size etc.
THE STATE OF THE LAW REGARDING SECTION 5A
BEING DISPENSED WITH F
10. In Narayan Govind Gavate and Others v. State of
Maharashtra and Others7, a Bench of 3 learned Judges was dealing
with a notification issued under Section 17(4).The public purpose recited
in the notification was development and utilisation of the land as a
residential and industrial area. The lands were described as waste and G
arable land and urgency provision was invoked resulting in the notification
being issued. This court interalia held:
4
(1986) 4 SCC 251
5
(1996) 2 SCC 549
6
(1993) 2 SCC 84
7
(1977) 1SCC 133 H
212 SUPREME COURT REPORTS [2021] 11 S.C.R.
A “10. It is true that, in such cases, the formation of an opinion is a
subjective matter, as held by this Court repeatedly with regard to
situations in which administrative authorities have to form certain
opinions before taking actions they are empowered to take. They
are expected to know better the difference between a right or
wrong opinion than courts could ordinarily on such matters.
B
Nevertheless, that opinion has to be based upon some relevant
materials in order to pass the test which courts do impose. That
test basically is: Was the authority concerned acting within the
scope of its powers or in the sphere where its opinion and discretion
must be permitted to have full play? Once the court comes to the
C conclusion that the authority concerned was acting within the scope
of its powers and had some material, however meagre, on which
it could reasonably base its opinion, the courts should not and will
not interfere. There might, however, be cases in which the power
is exercised in such an obviously arbitrary or perverse fashion,
without regard to the actual and undeniable facts, or, in other words,
D
so unreasonably as to leave no doubt whatsoever in the mind of a
court that there has been an excess of power. There may also be
cases where the mind of the authority concerned has not been
applied at all, due to misunderstanding of the law or some other
reason, to what was legally imperative for it to consider.
E 24. Coming back to the cases before us, we find that the High
Court had correctly stated the grounds on which even a subjective
opinion as to the existence of the need to take action under Section
17(4) of the Act can be challenged on certain limited grounds.
But, as soon as we speak of a challenge we have to bear in mind
F the general burdens laid down by Sections 101 and 102 of the
Evidence Act. It is for the petitioner to substantiate the grounds
of his challenge. This means that the petitioner has to either lead
evidence or show that some evidence has come from the side of
the respondents to indicate that his challenge to a notification or
order is made good. If he does not succeed in discharging that
G duty his petition will fail.
30. In the cases before us, if the total evidence from whichever
side any of it may have come, was insufficient to enable the
petitioners to discharge their general or stable onus, their petitions
could not succeed. On the other hand, if, in addition to the bare
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 213
U.P. & ORS. [K. M. JOSEPH, J.]
assertions made by the petitioners, that the urgency contemplated A
by Section 17(4) did not exist, there were other facts and
circumstances, including the failure of the State to indicate facts
and circumstances which it could have easily disclosed if they
existed, the petitioners could be held to have discharged their
general onus.
B
40. In the case before us, the public purpose indicated is the
development of an area for industrial and residential purposes.
This, in itself, on the face of it, does not call for any such action,
barring exceptional circumstances, as to make immediate
possession, without holding even a summary enquiry under Section
5-A of the Act, imperative. On the other hand, such schemes C
generally take sufficient period of time to enable at least summary
inquiries under Section 5-A of the Act to be completed without
any impediment whatsoever to the execution of the scheme.
Therefore, the very statement of the public purpose for which the
land was to be acquired indicated the absence of such urgency, D
on the apparent facts of the case, as to require the elimination of
an enquiry under Section 5-A of the Act.
42. All schemes relating to development of industrial and
residential areas must be urgent in the context of the country’s
need for increased production and more residential accommodation. E
Yet, the very nature of such schemes of development does not
appear to demand such emergent action as to eliminate summary
enquiries under Section 5-A of the Act. There is no indication
whatsoever in the affidavit filed on behalf of the State that the
mind of the Commissioner was applied at all to the question whether
it was a case necessitating the elimination of the enquiry under F
Section 5-A of the Act. The recitals in the notifications, on the
other hand, indicate that elimination of the enquiry under Section
5-A of the Act was treated as an automatic consequence of the
opinion formed on other matters. The recital does not say at all
that any opinion was formed on the need to dispense with the G
enquiry under Section 5-A of the Act. It is certainly a ease in
which the recital was at least defective. The burden, therefore,
rested upon the State to remove the defect, if possible, by evidence
to show that some exceptional circumstances which necessitated
the elimination of an enquiry under Section 5-A of the Act and
H
214 SUPREME COURT REPORTS [2021] 11 S.C.R.
A that the mind of the Commissioner was applied to this essential
question. It seems to us that the High Court correctly applied the
provisions of Section 106 of the Evidence Act to place the burden
upon the State to prove those special circumstances, although it
also appears to us that the High Court was not quite correct in
stating its view in such a manner as to make it appear that some
B
part of the initial burden of the petitioners under Sections 101 and
102 of the Evidence Act had been displaced by the failure of the
State to discharge its duty under Section 106 of the Act. The
correct way of putting it would have been to say that the failure
of the State to produce the evidence of facts especially within the
C knowledge of its officials, which rested upon it under Section 106
of the Evidence Act, taken together with the attendant facts and
circumstances, including the contents of recitals, had enabled the
petitioners to discharge their burden under Sections 101 and 102
of the Evidence Act.”
D (Emphasis supplied)
11. In Pista Devi (supra), a Bench of two learned Judges came to
consider the case involving dispensing with the enquiry under Section
5A of the Act. The court noted the case related to Meerut city located in
a densely populated part of the Uttar Pradesh which was found to be
E growing very fast.The problem of town planning and urban development
had to be tackled. The Collector on the basis of proposal sent to him by
the Meerut Development Authority wrote letter dated 13.12.1979 to the
Commissioner and Secretary, Housing and Urban Development, Uttar
Pradesh regarding acquisition of approximately 412 acres for a Housing
Scheme. There was an acute shortage of houses, it was found. The
F collector gave the requisite certificate. The Government published a
notification under section 4(1) of the Act and also dispensed with the
enquiry under Section 5A which was published on 12th July, 1980. This
was followed up by the declaration under Section 6 on 1.5.1981. The
possession came to be taken and handed over to the Meerut Development
G Authority in July, 1982. It is in these circumstances that the notification
under Section 17 of the Act was challenged. This Court distinguished
Narayan Govind Gavate (supra) in the following words:
“..The provision of housing accommodation in these days
has become a matter of national urgency. We may take judicial
H notice of this fact. Now it is difficult to hold that in the case of
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 215
U.P. & ORS. [K. M. JOSEPH, J.]
proceedings relating to acquisition of land for providing house sites A
it is unnecessary to invoke Section 17(1) of the Act and to dispense
with the compliance with Section 5-A of the Act. Perhaps, at the
time to which the decision in Narayan Govind Gavate v. State
of Maharashtra [(1977) 1 SCC 133 : 1977 SCC (Cri) 49 : AIR
1977 SC 183 : (1977) 1 SCR 763] related the situation might have
B
been that the schemes relating to development of residential areas
in the urban centres were not so urgent and it was not necessary
to eliminate the inquiry under Section 5-A of the Act. The
acquisition proceedings which had been challenged in that case
related to the year 1963. During this period of nearly 23 years
since then the population of India has gone up by hundreds of C
millions and it is no longer possible for the Court to take the view
that the schemes of development of residential areas do not
“appear to demand such emergent action as to eliminate summary
inquiries under Section 5-A of the Act...”.
7.…In a case of this nature where a large extent of land is being D
acquired for planned development of the urban area it would not
be proper to leave the small portions over which some super-
structures have been constructed out of the development scheme.
In such a situation where there is real urgency it would be difficult
to apply Section 5-A of the Act in the case of few bits of land on
which some structures are standing and to exempt the rest of the E
property from its application. Whether the land in question is waste
or arable land has to be judged by looking at the general nature
and condition of the land…”
(Emphasis supplied)
F
12. Thus, a discordant note came to be struck in Pista Devi (supra).
In Rajasthan Housing Board (supra), again a Bench of two learned
Judges was dealing with a notification to acquire a total of 2570 bighas
for the benefit of the Rajasthan Housing Board. The notification dated
13.01.1982 under Section 4(1) of the Rajasthan Act was followed by a
notification dated 09.02.1982 dispensing with enquiry under Section 5 G
(a). Possession was taken over according to the Government on
24.05.1982 and 26.05.1982. This Court relied upon Pista Devi (supra)
and opined that the views expressed in said judgment as contained in
paragraph 7 represented the correct view.The paragraph which is apposite
to the controversy in our case is paragraph 14. H
216 SUPREME COURT REPORTS [2021] 11 S.C.R.
A “14. Shri Thakur further argued that the construction of
houses by Housing Board is not of such urgency as to call for the
invocation of the said power. We are not satisfied. Firstly, on this
question the decision of the Rajasthan High Court is against the
writ petitioners. The learned Single Judge negatived it as well as
the Division Bench following the opinion of the third Judge.
B
Secondly, we are satisfied that there was material before the
Government in this case upon which it could have and did form
the requisite opinion that it was a case calling for exercise of
power under Section 17(4). The learned Single Judge has referred
to the material upon which the Government had formed the said
C opinion. The material placed before the Court disclosed that the
Government found, on due verification, that there was an acute
scarcity of land and there was heavy pressure for construction of
houses for weaker sections and middle income group people; that
the Housing Board had obtained a loan of Rs 16 crores under a
time-bound programme to construct and utilise the said amount
D
by March 31, 1983; that in the circumstances the Government
was satisfied that unless possession was taken immediately, and
the Housing Board permitted to proceed with the construction,
the Board will not be able to adhere to the time-bound programme.
In addition to the said fact, the Division Bench referred to certain
E other material also upon which the Government had formed the
said satisfaction viz., that in view of the time-bound programme
stipulated by the lender, HUDCO, the Board had already appointed
a large number of engineers and other subordinate staff for
carrying out the said work and that holding an inquiry under Section
5-A would have resulted in uncalled for delay endangering the
F
entire scheme and time-schedule of the Housing Board. If must
be remembered that the satisfaction under Section 17(4) is a
subjective one and that so long as there is material upon which
the Government could have formed the said satisfaction fairly,
the Court would not interfere nor would it examine the material
G as an appellate authority. This is the principle affirmed by decisions
of this Court not under Section 17(4) but also generally with respect
to subjective satisfaction.”
(Emphasis supplied)
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 217
U.P. & ORS. [K. M. JOSEPH, J.]
13. In Chameli Singh case (supra), a bench of 3 learned Judges A
again considered the question. The notification under Section 4 was dated
23.07.1983 and the declaration under section 6 was also published on
the strength of notification under Section 17(4). Regarding the challenge
to the notification under Section 17(4) this Court inter alia held as follows:
“3..When the Government forms an opinion that it is necessary to B
require immediate possession of the land for building houses for
the Dalits, it forms the opinion of urgency to take immediate
possession for the said purpose. Accordingly it is entitled to direct
dispensing with the inquiry under Section 5-A and publish the
declaration under Section 6 after the date of the publication of
Section 4(1) notification. C
4. It is settled law that the opinion of urgency formed by the
appropriate Government to take immediate possession, is a
subjective conclusion based on the material before it and it is entitled
to great weight unless it is vitiated by mala fides or colourable
exercise of power. Article 25(1) of the Universal Declaration of D
Human Rights declares that “everyone has the right to a standard
of living adequate for the health and well-being of himself and his
family including food, clothing, housing, medical care and necessary
social services”.
15. The question, therefore, is whether invocation of urgency E
clause under Section 17(4) dispensing with inquiry under Section
5-A is arbitrary or is unwarranted for providing housing construction
for the poor. In Aflatoon v. Lt. Governor of Delhi [(1975) 4 SCC
285] (SCC at p. 290), a Constitution Bench of this Court had
upheld the exercise of the power by the State under Section 17(4) F
dispensing with the inquiry under Section 5-A for the planned
development of Delhi. In Pista Devi case [(1986) 4 SCC 251]
this Court while considering the legality of the exercise of the
power under Section 17(4) exercised by the State Government
dispensing with the inquiry under Section 5-A for acquiring housing
accommodation for planned development of Meerut, had held that G
providing housing accommodation is national urgency of which
court should take judicial notice. The pre-notification and post-
notification delay caused by the officer concerned does not create
a cause to hold that there is no urgency. Housing conditions of
Dalits all over the country continue to be miserable even till date H
218 SUPREME COURT REPORTS [2021] 11 S.C.R.
A and is a fact of which courts are bound to take judicial notice. The
ratio of Deepak Pahwa case [(1984) 4 SCC 308 : (1985) 1 SCR
588] was followed. In that case a three-Judge Bench of this Court
had upheld the notification issued under Section 17(4), even though
lapse of time of 8 years had occurred due to inter-departmental
discussions before receiving the notification. That itself was
B
considered to be a ground to invoke urgency clause. It was further
held that delay on the part of the lethargic officials to take further
action in the matter of acquisition was not sufficient to nullify the
urgency which existed at the time of the issuance of the notification
and to hold that there was never any urgency. In Jage Ram v. State
C of Haryana [(1971) 1 SCC 671] this Court upheld the exercise
of the power of urgency under Section 17(4) and had held that
the lethargy on the part of the officers at an early stage was not
relevant to decide whether on the day of the notification there
was urgency or not. Conclusion of the Government that there
was urgency, though not conclusive, is entitled to create weight.
D
In Deepak Pahwa case [(1984) 4 SCC 308 : (1985) 1 SCR 588]
this Court had held that very often persons interested in the land
proposed to be acquired may make representations to the
authorities concerned against the proposed writ petition that is
bound to result in multiplicity of enquiries, communications and
E discussions leading invariably to delay in the execution of even
urgent projects. Very often delay makes the problem more and
more acute and increases urgency of the necessity for acquisition.
In Rajasthan Housing Board v. Shri Kishan [(1993) 2 SCC 84]
(SCC at p. 91), this Court had held that it must be remembered
that the satisfaction under Section 17(4) is a subjective one and
F
that so long as there is material upon which Government could
have formed the said satisfaction fairly, the Court would not
interfere nor would it examine the material as an appellate authority.
In State of U.P. v. Keshav Prasad Singh [(1995) 5 SCC 587]
(SCC at p. 590), this Court had held that the Government was
G entitled to exercise the power under Section 17(4) invoking urgency
clause and to dispense with inquiry under Section 5-A when the
urgency was noticed on the facts available on record. In Narayan
Govind Gavate case [(1977) 1 SCC 133 : 1977 SCC (Cri) 49 :
(1997) 1 SCR 763] a three-Judge Bench of this Court had held
that Section 17(4) cannot be read in isolation from Section 4(1)
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 219
U.P. & ORS. [K. M. JOSEPH, J.]
and Section 5-A of the Act. Although 30 days from the notification A
under Section 4(1) are given for filing objections under Section
5-A, inquiry thereunder unduly gets prolonged. It is difficult to see
why the summary inquiry could not be completed quite
expeditiously. Nonetheless, this Court held the existence of prima
facie public purpose such as the one present in those cases before
B
the Court could not be successfully challenged at all by the
objectors. It further held that it was open to the authority to take
summary inquiry under Section 5-A and to complete inquiry very
expeditiously. It was emphasised that: (SCC p. 148, para 38)
“… The mind of the officer or authority concerned has to be
applied to the question whether there is an urgency of such a C
nature that even the summary proceedings under Section 5-A of
the Act should be eliminated. It is not just the existence of an
urgency but the need to dispense with an inquiry under Section
5-A which has to be considered.”
(Emphasis supplied) D
14. This Court proceeded to consider the decisions in Gavate,
Pista Devi and Rajasthan Housing Board. As far as Gavate was
concerned, this Court pronounced as follows:
16. It would thus be seen that this Court emphasised the holding E
of an inquiry on the facts peculiar to that case. Very often the
officials, due to apathy in implementation of the policy and
programmes of the Government, themselves adopt dilatory tactics
to create cause for the owner of the land to challenge the validity
or legality of the exercise of the power to defeat the urgency
existing on the date of taking decision under Section 17(4) to F
dispense with Section 5-A inquiry.
17. It is true that there was pre-notification and post-notification
delay on the part of the officers to finalise and publish the
notification. But those facts were present before the Government
when it invoked urgency clause and dispensed with inquiry under G
Section 5-A. As held by this Court, the delay by itself accelerates
the urgency: Larger the delay, greater be the urgency. So long as
the unhygienic conditions and deplorable housing needs of Dalits,
Tribes and the poor are not solved or fulfilled, the urgency continues
to subsist. When the Government on the basis of the material,
H
220 SUPREME COURT REPORTS [2021] 11 S.C.R.
A constitutional and international obligation, formed its opinion of
urgency, the court, not being an appellate forum, would not disturb
the finding unless the court conclusively finds the exercise of the
power mala fide. Providing house sites to the Dalits, Tribes and
the poor itself is a national problem and a constitutional obligation.
So long as the problem is not solved and the need is not fulfilled,
B
the urgency continues to subsist. The State is expending money
to relieve the deplorable housing condition in which they live by
providing decent housing accommodation with better sanitary
conditions. The lethargy on the part of the officers for pre and
post-notification delay would not render the exercise of the power
C to invoke urgency clause invalid on that account.
18. In every acquisition by its very compulsory nature for public
purpose, the owner may be deprived of the land, the means of his
livelihood. The State exercises its power of eminent domain for
public purpose and acquires the land. So long as the exercise of
D the power is for public purpose, the individual’s right of an owner
must yield place to the larger public purpose.
(Emphasis supplied)
15. In Om Prakash and Anr. vs. U.P and Others (supra) relied
upon by the appellants, a Bench of two learned Judges upheld the
E complaint of the land owners against the dispensing of inquiry under
Section 5A of the Act. This Court distinguished Rajasthan Housing Board
(supra) noticing the contents of paragraph 14 in the said judgment and
found that the said decision was rendered in the peculiar facts of the
case before the Court. As far as the decision in Pista Devi (supra) is
F concerned, the Bench took the view that the decision in Pista Devi
could not have laid down any legal proposition contrary to the earlier
judgment in Gavate (supra). It is true that the decision in Chameli Singh
(supra) rendered also by a Bench of three learned Judges was not noticed.
16. We need to notice the decision of this court rendered by a
G bench of two learned Judges and reported in Radhy Shyam (supra).
Therein this Court after an exhaustive survey of decisions including
Gavate, Pista Devi and Rajasthan Housing Boards, Chameli Singh
(supra) which appears to be the representatives of two streams of
perspectives summed up its conclusions as follows: -
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 221
U.P. & ORS. [K. M. JOSEPH, J.]
“Para77. From the analysis of the relevant statutory provisions A
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 B
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. [AIR 1954 SC
119], Charanjit Lal Chowdhury v. Union of India [AIR 1951
SC 41] and Jilubhai Nanbhai Khachar v. State of Gujarat [1995 C
Supp (1) SCC 596].
(ii) The legislations which provide for compulsory acquisition of
private property by the State fall in the category of expropriatory
legislation and such legislation must be construed strictly — DLF
Qutab Enclave Complex Educational Charitable Trust v. State D
of Haryana [(2003) 5 SCC 622] ; State of Maharashtra v. B.E.
Billimoria [(2003) 7 SCC 336] and Dev Sharan v. State of
U.P. [(2011) 4 SCC 769 : (2011) 2 SCC (Civ) 483]
(iii) Though, in exercise of the power of eminent domain, the
Government can acquire the private property for public purpose, E
it must be remembered that compulsory taking of one’s property
is a serious matter. If the property belongs to economically
disadvantaged segment of the society or people suffering from
other handicaps, then the court is not only entitled but is duty-
bound to scrutinise the action/decision of the State with greater F
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 G
mandate of Sections 4, 5-A and 6 of the Act. A public purpose,
however laudable it may be does not entitle the State to invoke
the urgency provisions because the same have the effect of
depriving the owner of his right to property without being heard.
Only in a case of real urgency, can the State invoke the urgency
H
222 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 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
B 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.
C
(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
D is vitiated due to mala fides or that the authorities concerned did
not apply their mind to the relevant factors and the records.
(vii) The exercise of power by the Government under Section
17(1) does not necessarily result in exclusion of Section 5-A of
the Act in terms of which any person interested in land can file
E 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
F 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
G 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
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 223
U.P. & ORS. [K. M. JOSEPH, J.]
provision contained in Section 17(1). In any case, exclusion of the A
rule of audi alteram partem embodied in Sections 5-A(1) and (2)
is not at all warranted in such matters.
(ix) If land is acquired for the benefit of private persons, the court
should view the invoking of Sections 17(1) and/or 17(4) with
suspicion and carefully scrutinise the relevant record before B
adjudicating upon the legality of such acquisition.”
(Emphasis supplied)
17. In the said case the notification was issued dated 12.03.2008
under Section 4 of the Act. The public purpose projected was the planned
industrial development project in the district. The court took the view C
that even if the planned industrial development project of the district
was considered as public purpose, there was no urgency justifying invoking
the power under Section 17 (4) of the Act.
18. In Anand Singh case (supra), a Bench of two learned Judges
dealt with an acquisition for a residential colony for the Gorakhpur D
Development Authority. The notification was issued under Section 4 in
2003 and 2004. By the said notifications power was invoked under Section
17 (4), and the declaration also came to be issued under Section 6 on
28.12.2004. The contention of the Gorakhpur Development Authority
was that many steps were taken in developing the land acquired in as E
much as water, land, electric lines, sewerage line, drainage etc. were
laid and roads constructed out of the total outlay of merely Rs. 8 to 9
crores. An amount of excess of Rs. 5 crores were already spent and 60
per cent of the work was completed. The Court referred to Gavate,
Pista Devi, Rajasthan Housing Boards, Chameli Singhand Om
Prakash (supra) and held as follows: - F
“41. The power of eminent domain, being inherent in the
Government, is exercisable in the public interest, general welfare
and for public purpose. Acquisition of private property by the State
in the public interest or for public purpose is nothing but an
enforcement of the right of eminent domain. In India, the Act G
provides directly for acquisition of particular property for public
purpose. Though the right to property is no longer a fundamental
right but Article 300-A of the Constitution mandates that no person
shall be deprived of his property save by authority of law. That
Section 5-A of the Act confers a valuable right to an individual is
H
224 SUPREME COURT REPORTS [2021] 11 S.C.R.
A beyond any doubt. As a matter of fact, this Court has time and
again reiterated that Section 5-A confers an important right in
favour of a person whose land is sought to be acquired.
42. When the Government proceeds for compulsory acquisition
of a particular property for public purpose, the only right that the
B owner or the person interested in the property has, is to submit his
objections within the prescribed time under Section 5-A of the
Act and persuade the State authorities to drop the acquisition of
that particular land by setting forth the reasons such as the
unsuitability of the land for the stated public purpose; the grave
hardship that may be caused to him by such expropriation,
C availability of alternative land for achieving public purpose, etc.
Moreover, the right conferred on the owner or person interested
to file objections to the proposed acquisition is not only an important
and valuable right but also makes the provision for compulsory
acquisition just and in conformity with the fundamental principles
D of natural justice.
43. The exceptional and extraordinary power of doing away with
an enquiry under Section 5-A in a case where possession of the
land is required urgently or in an unforeseen emergency is provided
in Section 17 of the Act. Such power is not a routine power and
E save circumstances warranting immediate possession it should
not be lightly invoked. The guideline is inbuilt in Section 17 itself
for exercise of the exceptional power in dispensing with enquiry
under Section 5-A. Exceptional the power, the more circumspect
the Government must be in its exercise. The Government obviously,
therefore, has to apply its mind before it dispenses with enquiry
F under Section 5-A on the aspect whether the urgency is of such a
nature that justifies elimination of summary enquiry under Section
5-A.
44. A repetition of the statutory phrase in the notification that the
State Government is satisfied that the land specified in the
G notification is urgently needed and the provision contained in
Section 5-A shall not apply, though may initially raise a presumption
in favour of the Government that prerequisite conditions for
exercise of such power have been satisfied, but such presumption
may be displaced by the circumstances themselves having no
H reasonable nexus with the purpose for which the power has been
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 225
U.P. & ORS. [K. M. JOSEPH, J.]
exercised. Upon challenge being made to the use of power under A
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.
46. As to in what circumstances the power of emergency can be B
invoked are specified in Section 17(2) but circumstances
necessitating invocation of urgency under Section 17(1) are not
stated in the provision itself. Generally speaking, the development
of an area (for residential purposes) or a planned development of
city, takes many years if not decades and, therefore, there is no
reason why summary enquiry as contemplated under Section 5-A C
may not be held and objections of landowners/persons interested
may not be considered. In many cases, on general assumption
likely delay in completion of enquiry under Section 5-A is set up
as a reason for invocation of extraordinary power in dispensing
with the enquiry little realising that an important and valuable right D
of the person interested in the land is being taken away and with
some effort enquiry could always be completed expeditiously.”
(Emphasis supplied)
19. Thereafter, the court noticed the conflict between Gavate
and Pista devi (supra) and held as follows: - E
“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 F
Court. There is a conflict of view in the two decisions of this
Court viz. Narayan Govind Gavate [(1977) 1 SCC 133: 1977
SCC (Cri) 49] and Pista Devi [(1986) 4 SCC 251]. In Om
Prakash [(1998) 6 SCC 1] this Court held that the decision in Pista
Devi [(1986) 4 SCC 251] must be confined to the fact situation in G
those days when it was rendered and the two-Judge Bench could
not have laid down a proposition contrary to the decision
in Narayan Govind Gavate [(1977) 1 SCC 133: 1977 SCC (Cri)
49]. We agree.
H
226 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 48. As regards the issue whether pre-notification and post-
notification delay would render the invocation of urgency power
void, again the case law is not consistent. The view of this Court
has differed on this aspect due to different fact situation prevailing
in those cases. In our opinion such delay will have material bearing
on the question of invocation of urgency power, particularly in a
B
situation where no material has been placed by the appropriate
Government before the Court justifying that urgency was of such
nature that necessitated elimination of enquiry under Section
5-A.
49. In a country as big as ours, a roof over the head is a distant
C dream for a large number of people. The urban development
continues to be haphazard. There is no doubt that planned
development and housing are matters of priority in a developing
nation. The question is as to whether in all cases of “planned
development of the city” or “for the development of residential
D area”, the power of urgency may be invoked by the Government
and even where such power is invoked, should the enquiry
contemplated under Section 5-A be dispensed with invariably. We
do not think so. Whether “planned development of city” or
“development of residential area” cannot brook delay of a few
months to complete the enquiry under Section 5-A? In our opinion,
E ordinarily it can. The Government must, therefore, do a balancing
act and resort to the special power of urgency under Section 17 in
the matters of acquisition of land for the public purpose viz.
“planned development of city” or “for development of residential
area” in exceptional situation.
F 51. It must, therefore, be held that the use of the power of urgency
and dispensation of enquiry under Section 5-A by the Government
in a routine manner for the “planned development of city” or
“development of residential area” and thereby depriving the owner
or person interested of a very valuable right under Section 5-A
G may not meet the statutory test nor could be readily sustained.”
(Emphasis supplied)
20. The court in the said case permitted the appellants to represent
to the state’s authority under Section 48 of the Act for release of their
land.
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 227
U.P. & ORS. [K. M. JOSEPH, J.]
21. No doubt in State OF Haryanav. Eros City Developers A
Private Limited and Others8, this Court took the view that public interest
must receive primacy when it conflicts with private interest. The stand
of the state and the Second Respondent appears to be that the judgment
rendered by two judges’ bench which deviated from the judgment in
Pista Devi (supra) and Chameli Devi (supra) were not correctly decided.
B
ANALYSIS AND FINDINGS
22. We may cull out the principles at play. What is required of the
authority is to form a subjective opinion. This does not mean that the
opinion can be whimsical or capricious. There must be materials before
the authority. The materials must be relevant. The authority must apply C
his mind to the material. This is apart from the requirement that action
must not be malafide. Undoubtedly the purpose must be a public purpose.
But merely because the purpose of the acquisition is found to be a public
purpose, the duty of the authority does not end. He must be satisfied that
there is real agency such that the invaluable right vouchsafed to a person
to ventilate his grievances against the acquisition is not unjustifiably D
extinguished. Section 5A of the Act guarantees a right to the person
interested in the property which was the only statutory safeguard to
stave off of a compulsory acquisition of his property. The power under
Section 17 (4) is discretionary. Being a discretion it must be exercised
with due care. It is true that if there is relevant material however meagre E
it may be and the authority has without being guided by extraneous
considerations applied his mind and taken a decision,then the court would
adopt a hands-off approach. In the ultimate analysis as with any other
decision a balancing of conflicting interests is inevitable. The authorities
must remain alive and alert to the precious right created in favour of the
citizens which is not meant to be a mere empty ritual. F
23. It is true again that the decisions in this Court appear to convey
conflicting signals. However, there is a certain element of consensus on
fundamental principles. The dichotomy essentially has to be resolved by
carefully attending to the facts of each case. The decision of a Bench of
three Judges in Gavate (supra) enunciates the principles relating to the G
manner in which a challenge to a notification under Section 17(4) must
be approached in the matter of discharging the burden of proof. When a
challenge is made to the invocation of power under Section 17 (4) the
8
(2016)12 SCC 265 H
228 SUPREME COURT REPORTS [2021] 11 S.C.R.
A writ applicant cannot succeed on bare and bald assertions. The facts
which are specifically within the exclusive knowledge of the state must
be laid before the court on the basis of the principle in Section 106 of the
Evidence Act. Existence of the exceptional circumstances justifying
invoking of Section 17 (4) must be established in the wake of a challenge.
The true concept unravelled by this Court in Gavate(supra) is the total
B
evidence theory. In other words, on an appreciation of the evidence
made available by all the parties it is open to the court to conclude that
no occasion arose for resorting to the power under Section 17 (4) which
indeed must be read as an exception to the general rule that the acquisition
of property is made after affording an opportunity the person adversely
C affected to demonstrate that the acquisition was unjustified.
24. In the meeting held on 3.5.2002 by decision/item/21, there
was a proposal to acquire 52 hectares of land for the scheme. In
implementation of the said decision, letters were addressed on 6.6.2003
and 18.6.2003 by the second respondent. By letter 24.9.2003 the officer
D directed the Authority to deposit an amount towards acquisition. On
18.7.2003, second respondent sent a proposal to acquire 52.361 hectares
of land and on 31.1.2004 deposited about 10% of approximate value of
land. Certain deficiencies were pointed out by letter dated 13.12.2004.
The second respondent thereafter deposited the remaining cost. State
Government issued notification on 8.10.2004 under section 4 of the Act
E also invoking Section 17(4). The declaration under section 6 came to be
published on 7.10.2005. A perusal of a communication issued dated
29.3.2006 addressed to the In-charge of Land Acquisition by the second
respondent would show as follows:
“In Gata No.880 and —893, Painth (Cattle
F
Market) was being put for the animals, and that is why earl~er
these Gatas have been kept separate from the acquisition, but
now in these Gatas shops have been constructed and the land of
these Gatas are being sold for residential houses, hence as these
numbers are contiguous with the Plan, these gatas are also required
G ta_ be acquired after preparing an amended proposal.”
25. Based on the 32nd Board Meeting of the Authority held on
8.9.2005, a Committee was constituted. A proposal was sent to in regard
to Survey No. 880 and 893, situated allegedly in the middle of the total
area of the scheme. Based on the 33rd Board Meeting held on 29.05.2006
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 229
U.P. & ORS. [K. M. JOSEPH, J.]
the third respondent Vice Chairman of the second respondent wrote to A
the Collector, Bulandshehar on 6.10.2006. Herein, he refers to the 33 rd
Board Meeting of the second respondent held on 29.05.2006 and that it
was decided to forward a proposal for acquiring the land in question
apart from other lands. It is further mentioned by the third respondent
about the 13 shops, in the application which is referred to as the letter
B
dated 2.9. 2006 written by the appellants were illegally constructed
againstwhich action was taken. It is further stated as follows:
“For the animals coming in Painth (Cattle Market) there is no
Shed, Khor or Kundia for drinking water etc. are present at he
spot. In the revenue records, in the above both Gatas instead of
entering Painth (Cattle Market), the names of Shri Hamid Ali C
Khan and Shri Jahid Ali Khan sons of Mohd. Hussain Ali Khan
has been entered and it has also beenentered that those land are
declared non-cultivatedland under Section 143.”
26. Thereafter on 10.10.2006 the third respondent again wrote to
the Deputy Secretary, Housing & Urban Planning. It is essentially a D
reiteration of letter dated 06.10.2006. It is further pointed out the area of
the Mosque and Petrol pump in Survey No.880-and the area of Mazhar
in survey No. 893 has been left out in the final proposal. It is lastly
pointed out inter alia that in Bulandshehar except Khurja cattle market
are being put at very large level in many other Kasbas/Nagars. The E
cattle market is stated to be in the middle of the total area of 52.361
hectares. It is specifically pointed out that in view of the requirement of
clean environment the work of cattle market in between housing area of
any residential area will not be proper. There is reference to a further
letter 7.1.2007. On 3.1.2008 again the Vice Chairman of the second
respondent wrote to the Special Secretary reiterating the earlier F
communications hereinbefore. On 8.2.2008, it is pointed outby the Vice
Chairman that the land to be acquired will be developed as part of the
scheme. Reference is made to a request for notification for acquiring
the land. On 8.3.2008 the Special Secretary wrote to the Vice Chairman
of the second respondent. He sought information in terms of Government G
order dated 19th October, 2001 what is the purpose to require only 2.692
hectares land for the residential/commercial scheme. The appellants
would point out that this was replied to by communication dated 27.3.2008
by the vice Chairman. Again, it is inter alia stated as follows:
H
230 SUPREME COURT REPORTS [2021] 11 S.C.R.
A The said Painth (Cattle Market) in question is situated at the middle
of the Planning area and in view of the clean environment, putting of
Painth (Cattle Market) for the animals under thehousing scheme is not
proper from any angle. According to the record available in the
authority,on the land in question only on one day Painth (Cattle Market)
is being put for the animals. In the Gatas in -question the areas of Mosque
B
and. Mazarare being kept free from acquisition.
27. A perusal of the files made available would reveal that on
14.1.2008, there is reference to the clarification by the Vice chairman as
to the justification for acquiring of 2.692 hectares for the development
of residential and commercial scheme and from the planning point of
C view. Thereafter referring to letter 8.2.2008 from the Vice chairman of
the second respondent it is found that the land is situated in the middle of
land acquired earlier and that the Vice chairman has requested that
notification be issued at the earliest. The matter was put up before the
Ministerfor issuance of the notification under section 4(1)/17 for acquiring
D the land. This is dated 19.2.2008. On 2.3.2008, the Special Secretary
found that there was some request seeking exemption of the some land
sought to be acquired which was examined by the Government in the
enclosed file 2033LA/2006. The proposal for exemption was not allowed.
The Principal Secretary (Planning) had referred to the rejection of
application for exemption and therefore the matter was put up for
E notification under section 4(1)/17. On the very same day, the signature
of the Minister was obtained. From this we are to infer that the Minister
approved the proposal for issue of notification and it was issued thereafter
on 11.4.2008.
28. The minutes of meeting of the second respondent authority
F 29.5.2006 inter alia under itemNo.31/3 states as follows:
Item No.(31/3): – Regarding the land acquisition plan proposed
by the authority: – It was expected by the committee constituted
by the board meeting, that keeping in view the financial position
and plans of the authority, by showing the “profit – loss”
G justification, the detailed description should be prepared by the
developed authority and should be put up in the next board meeting,
so that it can be considered by the members of the board/
committee constituted at the time of the board meeting. The site
inspection was conducted by the committee on 03.12.2005,
H 15.12.2005 and 05.04.2006 of the Kalindi Kunj residential scheme,
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 231
U.P. & ORS. [K. M. JOSEPH, J.]
situated in Khurja and transport Nagar commercial scheme and A
Ganga Nagar residential/commercial schemes, situated in
Bulandsahar and the Gata numbers left out from the scheme were
inspected. In this regard, it was informed by the vice chairman
that a plot left out and that time, under the Kalindi Kunj residential
scheme i.e. Gata number 880, area 1.383 ha and Gata number
B
893, area 1.309 ha with total area of 2.692 ha, the supplementary
proposal for the same has been sent to the special land acquisition
officer, Bulandsahar. The proposal for issuing the Section – 4/17
notification for land acquisition of the Ganga Nagar residential
scheme and transport Nagar scheme Bulandsahar is presently
under consideration of the government and efforts are being made C
to take necessary action regarding its pronouncement by
establishing the coordination with the government level. As per
the instructions received from government of India, New Delhi,
since the “Commonwealth Games” are to be arranged in New
Delhi in the year 2010 and for providing residential and commercial
D
facilities and in order to control the population pressure within the
NCR region, development of residential and commercial schemes
is absolutely necessary, in the broad interest of the public and the
authority. It may be mentioned regarding the unavailability and
necessary of both the schemes that in accordance with the
instructions of the NCR planning board, demand survey work for E
these schemes was started from 02.01.06 to 10.02.2006, in which
demand was received for 642 plots as against 685 plots and the
estimated amount of Rs. 2.67 crore was received as 10%
registration charges. From this it is seen that the above schemes
of the authority will be very profitable for the authority and their
F
implementation is necessary in the broad public interest. Therefore,
changes have been sent in the proposal for land acquisition for
both these schemes, land development under the scheme, public
interest and broad interest of the authority. The proposal for issue
of Section – 4/17 notification for both the schemes is under
consideration of the government, in which there appears to be no G
need for any amendment/stains. Therefore, it is necessary in public
interest and broad interest of the authority that action should be
taken for the pronouncement of Section – 4/17 notification of
these schemes by establishing the coordination at the government
level…”
H
232 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 29. A perusal of the file notings would reveal that on 24.3.2009 it
was noticed that as per the rules the notification under section 6/17 had
to be issued before 11.4.2009 in view of the notification issued under
4(1)/17(4) on 11.4.2008. There is reference to Rs.37,76,711/- having
been deposited by the second respondent constituting unnecessary
expenditure, if the acquisition lapsed. On the said basis it was stated in
B
view of the unavoidable situation of issuing the section 6/17 notification
before 11.4.2009 it was proposed to issue the notification. Thereafter, it
was found that in view of the elections being underway and enforcement
of the election code, permission of the officer had to be obtained. The
approval/signature of the Principal Secretary had to be obtained for issuing
C the Section 6/17 declaration. It is thereupon that the notification under
Section 6 came to be issued on 9.4.2009.
30. On the basis of the declaration, the possession of the land
according to the second respondent was taken over on 27.7.2009 and
the name of the second respondent was entered in the revenue record.
D 31. In this connection, the specific stand set up by the appellants
in the writ petition as to the location of the market, which is comprised
survey nos. 880/893, is as follows:
“That the Vice Chairman again sent false information vide letter
dated 27.3.2008 to the Special Secretary, that there are 13 houses
E overthe land in dispute, which was wholly false andagainst spot
position. The true copy of reportdated 27 .3.2008 is being filed
herewith asAnnexure No. 14 to this Writ Petition.
That it is respectfully submitted that the said plot nos. 880 and 893
are not situated in the centre of Scheme as alleged in the reports
F dated 6.10.2006 and 10.10.2006. They are situated at the one end
of city facing G.T. Road and if a huge boundary wall is erected on
these plots by the petitioners the said plots can very well be
separated from theresidential area without disturbing the expansion
plan of the Scheme. It is respectfully submitted that the petitioners
G are ready to erect a boundary wall on their own expense if they
are permittedand assured that no such acquisition would bemade
as depicted in the letter issued from theoffice of respondent nos.
2/3 dated 10.10.2006.
That the layout plan of respondent no. 2 itself show that on plot
no.-880 there is a plan i.e.Cattle market and this fact is also proved
H
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 233
U.P. & ORS. [K. M. JOSEPH, J.]
fromthis layout plan that both the plots in questionare at the end of A
scheme which is facing G.T. Road. It is not in any case situated in
the centre of the Scheme.
That the layout plan of respondent no. 2 also shows that the end
of plots in questions have beenintended to be used for commercial
purposes inthe whole layout plan, entire commercial activities have B
been projected all along the National Highway. The residential
area in the Scheme isbehind this commercial area.”
32. A short counter affidavit was filed by the second respondent.
There is no specific denial of the case set up by the appellants in paragraph
23, 24 and 27. If that be so on the unrebutted allegations an inference C
could be drawn that the case set up by the respondents that the properties
in question were situated in the middle of the scheme area is incorrect.
33. We must notice certain salient features. Perusal of the
impugned notification under section 17(4) and even Section 6 declaration
shows that the land in question is recited as being required for the public D
purpose of the Bulandshehar-Khurja Development Authority or for the
Kalindi Kunj residential/commercial (supplementary). It is further recited
that as the Governor was convinced about the great necessity of the
land and the provision of section 17 (1) of the Act being applicable and in
view of the necessity, inquiry under section 5A was not applied on the
basis that ‘possibility of delay may be abandoned’. It is further stated E
that land is required for Kalindi Kunj residential/commercial scheme. A
perusal of the revised lay out plan inter alia would show that the scheme
was a residential cum commercial scheme. It was to consist of park,
community facilities such health, post office, social and cultural centre
and educational centre. The land which was reserved for the residential F
area is shown as constituting 38.57% of the area of the scheme. The
commercial part of the Scheme was to consist of 4.9% of the total area
of the scheme. We make this observation to record our finding that the
scheme is not a pure residential scheme. Secondly, the only case which
the respondents have further is that under a scheme 5% of the plots are
reserved for the landless.Therefore, this fact may stand out in sharp G
contrast with the scheme which fell for consideration before this Court
in Chameli Singh (supra) wherein the power under section 17(4) was
invoked for land for building houses for the dalits. Initially, the land in
question, was not proposed to be acquired. The total land which was
proposed to be acquired was fixed at 52 and odd hectares. H
234 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 34. A perusal of the communication dated 29.3.2006 from the
second respondent Authority reveals that according to it, survey nos.
880 and 893 were being used for keeping a cattle market and therefore
the lands were not required. It is further found that in the survey 13
shops were constructed and the land inthese surveywere sold for
residential house. Being contiguous with the scheme area, these lands
B
were projected as required on preparing an amended proposal. However,
in the communication dated 06.10.2006 issued by the third respondent
he refers to requirement of clean environment and therefore a cattle
market of the animalsin the housing area may not be proper. The same
position is again reiterated as already noted in communication dated
C 10.10.2000 as well. The appellants had given a representation on
08.12.2006 to the Chief Secretary praying that the property may not be
taken for the residential/commercial scheme. Therein, it is inter alia
stated that the cattle market is located at one corner of the acquired land
of 52.361 hectares. The appellants state about their readiness to construct
a separate boundary wall. It is stated to be their only source of income.
D
35. It is to be noticed that the declaration under section 6 was
issued only on the eve of expiry of one year from 11.4.2008. The urgency
indicated in the file is to tide over the bar of issuance of declaration
under section 6 beyond one year from 11.4.2008 the date on which
notification under 4/17 was issued. There is no indication in the file about
E the urgency for issuing the declaration immediately after the notification
under Section 4. In other words, the file does not reveal any urgency at
all associated with the need to acquire the land immediately which
constitutes the foundation for invoking the urgency clause.
36. We are at a loss as to what was the material which was
F relevant to a decision under section 17(4) of the Act. In this regard we
may notice the following:
Notification was issued under section 17(4) in October 2004 regard
to 52 and odd hectares of land. The Section 6 declaration is made
only in October 2005. The survey numbers in question in this case
G according to the respondent is located in the middle. However, it
is not acquired on the basis that the said land was being used as
cattle market (see communication dated 29.3.2006). The appellants
have a definite case that possession itself was taken despite the
availability of power to take possession immediately, only on
H 6.1.2006. The proposal to take the further land was taken in
HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF 235
U.P. & ORS. [K. M. JOSEPH, J.]
March, 2006 if not earlier. The reason given for acquiring the land A
is alleged construction of shops by the appellants and the contiguity
of the land covered by the land earlier acquired with the land in
question. On the other hand, the third respondent refers further to
the need for clean environment which is in contradiction to the
communication dated 29.3.2006.
B
37. What is relevant for the purpose of this case is to find the
following:
(1) Whether there were relevant material before the Government
to invoke power under section 17(4)?
(2) Lastly, whether the government applied its mind? C
38. We have noticed the material which consists of the
communications addressed to the second respondent and the
communications by the third respondent. Apart from the same, the usual
certificates/forms indicating inter alia that there was no place of worship
located in the scheme was no doubt available. But the point is only D
whether there was material for dispensing with the inquiry under Section
5A and even, more importantly, whether the authority applied its mind to
it. Even the notification under section 17(4) came to be issued after
more than two years of the proposal sent sometime in March, 2006 if
not earlier. We have already noted the fact that declaration under section E
6 came to be issued only on 9.4.2009, just two days prior to the first
anniversary of the date of notification under section 4. More importantly,
we have noticed what finally impelled Government to issue the
notification, namely, the apprehension that if it is not issued within one
year of the section 4 notification the acquisition would lapse. This had
nothing to do with urgency which would have manifested in the section F
6 declaration being issued much earlier.This must also be viewed in the
background that though the Section 4(1)/(17) Notification was earlier
issued in regard to 52.361 hectares on 08.10.2004, the declaration under
Section 6 was issued only on 07.10.2005.
39. The statutory authority under section 5A of the Act is expected G
to give a fair hearing. It can stand between an uncalled for proposal to
acquire property. Disputed questions of facts in regard to the property to
acquire the property are to be considered by the same Authority. Yet
another pertinent aspect is the fact that the subject matter of the second
H
236 SUPREME COURT REPORTS [2021] 11 S.C.R.
A acquisition was 2 and odd hectares. It was apparently just the appellants,
who had to be given a hearing.
40. We would therefore think that in the facts of this case, having
regard to the nature of the scheme, the delay with which section 6
declaration was issued, possession taken and the nature of the material
B on the basis of which the proposal was processed, the appellants are
justified in contending that the notification under 17(4) dispensing with
the inquiry under Section 5A was unjustified.
41. We may notice another aspect. This appeal arises from the
order passed by the High Court in the year 2000. While issuing notice,
C this Court in the SLP stage ordered status quo as on 6.11.2009 be
maintained. Thereafter, the leave was granted on 27.1.2012. The interim
order was however directed to continue. It is after nearly 12 years that
the case is finally being disposed of. In the meantime, the Land Acquisition
Act was repealed and the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has taken
D its place. Therefore, there is no question of the matter being considered
for an inquiry being held under section 5A. We have also noted that
there is no denial of the allegation in the writ petition about the lie of the
property, viz., it not being in the middle of the scheme area.
42. The appeal is allowed. The impugned judgment is set aside
E and the writ petition filed by the appellants shall stand allowed and the
impugned notifications and proceedings based on the same shall stand
quashed. The property shall be returned back to the appellants. This will
be without prejudice to the rights/powers available to the respondents
under law.
F
Nidhi Jain Appeal allowed.
G
H
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