Supreme Court of India
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR.versusSTATE OF RAJASTHAN AND ORS.
- Citation
- 2013 INSC 133
- Decided
- 1 March 2013
- Disposal
- Appeal(s) allowed
- Bench
- RAJENDRA MAL LODHA
Holding
The 1981 Amendment Act’s mandatory two‑year limit for a Section 6 declaration on pre‑Amendment notices renders the 1980 preliminary notification void, and the State’s exercise of urgency under Section 17 without a genuine, immediate need cannot override the substantive right to object under Section 5‑A.
Summary
The appellants challenged the acquisition of their land for a bus stand, arguing that the preliminary notification issued on 01‑05‑1980 had lapsed because the declaration under Section 6 was made on 19‑03‑1987, well beyond the two‑year limit imposed by Section 5(2) of the 1981 Amendment Act, and that the State’s invocation of urgency under Section 17 and dispensation of the Section 5‑A inquiry after seven years was unlawful. The Supreme Court held that the two‑year mandatory period for a Section 6 declaration on notices issued before the Amendment Act’s commencement makes the 1980 notification void, and that the State’s power of urgency cannot be exercised where there is no real, immediate need, especially when the substantive right to object under Section 5‑A was denied. Consequently, the preliminary notification was declared lapsed, the declaration of acquisition was set aside, and the land was to be restored to the appellants. The appeal was allowed and the High Court orders were overturned.
Issues considered
- Whether the preliminary notification under Section 4 dated 01‑05‑1980 has lapsed because the declaration under Section 6 was made on 19‑03‑1987 beyond the two‑year limit prescribed by Section 5(2) of the Rajasthan Land Acquisition (Amendment and Validation) Act, 1981.
- Whether the State's invocation of power of urgency and dispensation of the Section 5‑A inquiry after a seven‑year delay is legally sustainable.
Legislation cited
- Constitution of Indias. Article 300-A
- Land Acquisition Act, 1894
- Rajasthan Land Acquisition Act, 1953s. 17(1), s. 17(4), s. 4(5), s. 5-A, s. 6
- Rajasthan Land Acquisition (Amendment and Validation) Act, 1981s. 5(1)(b), s. 5(2)
Subjects
land acquisitionurgency powerSection 5-ASection 17preliminary notification lapsevalidation amendmenteminent domainArticle 300-Astatutory limitation
Judgment
[2013) 2 S.C.R. 218
A LAXMAN LAL (DEAD) THROUGH LRS. AND ANR.
v.
STATE OF RAJASTHAN AND ORS.
(Civil Appeal No. 6392 of 2003)
MARCH 1, 2013.
B
[R.M. LODHA AND J. CHELAMESWAR, JJ.]
Rajasthan Land Acquisition (Amendment and
Validation) Act, 1981:
c
s. 5(2) - Validation of certain acquisitions - Notice u/s
4(5) of principal Act given prior to commencement of
Ar:nendment Act - Notification u/s 6 of principal Act issued ,
after more than 5 years of the commencement of the ·
D Amenrlment Act - Held: The provision of sub-s. (2) of s.5 of
Amendment Act leaves no manner of doubt that two years'
time prescribed for making declaration uls 6 in respect of the
notice issued uls 4(5) prior to the commencement of the 1981
Amendment Act is mandatory and permits no departure -
E Therefore, the preliminary notification, which was followed by
notice uls 4(5) before the commencement of the 1981
Amendment Act, has lapsed and does not survive since
declaration uls 6 has been made much beyond the time limit
prescribed in law - The impugned orders are set aside - It is
declared that preliminary notification dated 01.05.1980 has
F lapsed and the declaration made on 19.03.1987 is legally
unsustainable - Rajasthan Land Acquisition Act, 1953 - ss.
4(5) and 6.
Rajasthan Land Acquisition Act, 1953:
G
ss. 5-A, 17(1) and 17(4) - Special powers in case of
urgency - Acquisition of land for construction of bus stand -
After a lapse of 7 years from the date of notification uls 4,
Notification u/s 6 issued and powers u/ 17(1) read with s/17(4)
H 218
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 219
STATE OF RAJASTHAN AND ORS .
. invoked dispensing with provision of s. 5-A - Held: Any A
construction of building (institutional, industrial, residential,
commercial etc.) takes some time and, therefore, acquisition
of land for such purpose can always brook delay of few
months - Ordinarily, invocation of power of urgency by State
Government for such acquisition may not be legally B
sustainable - In the instant case, a very valuable right
conferred on the land owner/person interested uls 5-A has
been taken away without any justification - It is so because
construction of bus stand would have taken some time - The
exercise of power by State government u/s 17(1) read withs. c
17(4) and dispensation of inquiry u/s 5-A cannot be legally
sustained- Land Acquisition Act, 1894 - ss. 17(1), 17(4) and
5-A
s. 17(1) read withs. 17(4) - Exercise of power under-
Affidavit with regard to - Held: Counter affidavit filed by D
Rajasthan State Road Transport Corporation is not relevant
as s. 17 confers power of urgency only on the State
government alone and it is the State government that has to
justify that the urgency was so imminent that dispensation of
inquiry u/s 5-A was necessary - Constitution of India, 1950 E
- Art. 300-A - Eminent domain - Affidavit.
In the instant appeal arising out of acquisition of
appellants' land for construction of a bus stand, the
questions for consideration before the Court were: (i) F
"Whether invocation of power of urgency and
dispensation of inquiry u/s 5-A after 7 years of issuance
of preliminary notification u/s 4 of the 1953 Act are legally
sustainable?" and (ii) "Whether preliminary notification u/
s 4 of the Rajasthan Land Acquisition Act, 1953 issued G
on 01.05.1980 has lapsed since declaration u/s 6 of that
Act was made on 19.03.1987 after the expiry of two years
· from the commencement of the Rajasthan Land
Acquisition (Amendment and Validation) Act, 1981?"
Allowing the appeal, the Court H
220 SUPREME COURT REPORTS [2013] 2 S.C.R.
A HELD: 1.1 The statutory provisions of compulsory
acquisition contained in the Rajasthan Land Acquisition
Act, 1953 (the 1953 Act) are not materially different from
the Land Acquisition Act, 1894 (the 1894 Act). The power
of urgency which takes away the right to file objections
B can only be exercised by the State government for such
public purpose of real urgency which cannot brook delay
of few weeks or few months. This Court has held that
the right to file objections u/s 5-A is a substantial right.
The State government, therefore, has to apply its mind
C before it invokes its power of urgency and dispensation
of inquiry u/s 5-A that the compliance of the mandate of
s. 5-A may lead to precious loss of time which may defeat
the purpose for which land is sought to be acquired. Any
construction of building (institutional, industrial,
residential, commercial etc.) takes some time and,
0
therefore, acquisition of land for such purpose can
always brook delay of few months. Ordinarily, invocation
of power of urgency by the State government for such
acquisition may not be legally sustainable. [para 16, 17
E and 27) [230-H; 231-E-F; 240-F-G]
Nandeshwar Prasad & Ors. v. U.P. Govt. & Ors. 1964
SCR 425 =AIR 1964 SC 1217; Munshi Singh & Ors. v. Union
of India 1973 (1) SCR 973 = (1973) 2 SCC 337; Hindustan
Petroleum Corporation Ltd. v. Darius Shapur Chenai & Ors.
F 2005 (3) Suppl. SCR 388 = 2005 (7) SCC 627; Anand Singh
and Another v. State of Uttar Pradesh and Others 2010 (9)
SCR 133 = 2010 (11) SCC 242 - relied on.
Narayan Govind Gavate & Ors. v. State of Maharashtra
G & Ors. 1977(1) SCR 763 = 1977 (1) SCC 133, Deepak Pahwa
& Ors. v. Lt. Governor of Delhi & Ors. 1985 (1) SCR 588
= 1984 (4) SCC 308; State of U.P. v. Smt. Pista Dev & Ors.
1986 (3) SCR 743=1986 (4) sec 251, State of U.P. & Anr.
v. Keshav Prasad Singh 1995 (2) Suppl. SCR329=1995
(5) SCC 587; Chameli Singh & Ors. v. State of U.P. & Anr.
H
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 221
STATE OF RAJASTHAN AND ORS.
1995 (6) Suppl. SCR 827 = 1996 (2) SCC 549; Meerut A
Development Authority & Ors. v. Satbir Singh & Ors. 1996
(6) Suppl. SCR 529 = 1996 (11) SCC 462; Om Prakash &
Anr. v. State of U.P. & Ors. 1998 (3) SCR 643 = 1998 (6)
. SCC 1, Union of India & Ors. v. Mukesh Hans 2004 (8) SCC
14 Union of India & Ors. v. Krishan Lal Ameja & Ors. 2004 B
(1) Suppl. SCR 801= 2004 (8) SCC 453; Mahadevappa
Lachappa Kinagi & Ors. v. State of Kamataka & Ors. 2008
(12) SCC 418; Babu Ram & Anr. v. State of Haryana & Anr.
2009 (14) SCR 1111 = 2009 (10) sec 115; and Tika Ram
& Ors. v. State of U.P. 2009 (14) SCR 905 = 2009 (10) c
SCC 689; Radhy Shyam (Dead) Through LRs & Ors. v. State
of Uttar Pradesh and Others 2011 (8) SCR 359 = 2011 (5)
sec 553 - referred to.
1.2 In the instant case, the preliminary notification u/
s 4 was issued on 01.5.1980. After lapse of about 7 years D
on 19.03.1987, the State government issued declaration
u/s 6 without complying with the mandate of s. 5-A and
in that declaration it was stated that it has invoked its
powers conferred u/s 17(1) read withs. 17 (4) of the 1953
Act and dispensed with the provisions of s. 5-A. Had'the E
State government intended to hold and complete the
inquiry u/s 5-A, it could have been done in few months.
However, no steps for commencement of the inquiry u/s
5-A were even taken by the State government. Thus, a
very valuable right conferred on the land owner/person F
interested u/s 5-A has been taken away without any
justification. The counter affidavit filed by respondent no.
4, i.e., Rajasthan State Road Transport Corporation is not
relevant as s. 17 confers power of urgency only on the
State government alone and it is the State government G
that has to justify that the urgency was so imminent that
dispensation of inquiry u/s 5-A was necessary. The
exercise of the power by the State government u/s 17(1)
read with s. 17(4) of the 1953 Act and dispensation of
H
222 SUPREME COURT REPORTS (2013] 2 S.C.R.
·A inquiry u/s 5-A can not be legally sustained and has to
be declared as such. [para 26 and 28] [240-A-B. H; 241-
A-D]
2.1 At the time of issuance of the preliminary
notification, the 1953 Act did not prescribe any time limit
8
for issuance of declaration u/s 6. However, with effect
from 27.06.1981 by the 1981 Amendment Act, s. 6 was
amended and a proviso was inserted that no declaration
in respect of any land covered by notice u/s 4, sub-s. (5),
after the commencement of the 1981 Amendment Act
C shall be made after the expiry of three years from the date
of giving of such notice. As regards the acquisition
proceedings which had already commenced by issuance
of preliminary notification before coming into force of the
1981 Amendment Act, sub-s. (2) of s. 5 of the 1981
D Amendment Act, provides that notwithstanding anything
contained in clause (b) of sub-s. (1 ), no declaration u/s 6
of the 1953 Act in respect of any land for the acquisition
of which notice under sub-s. (5) of s. 4 has been given
before the commencement of the 1981 Amendment Act
E shall be made after the expiry of two years from the
commencement of the 1981 Amendment Act. Sub-s: (2)
of s. 5 of the 1981 Amendment Act begins with non
obstante clause. The provision leaves no manner of
doubt that two years' time prescribed for making
F declaration u/s 6 in respect of the notice issued u/s 4(5)
prior to the commencement of the 1981 Amendment Act
is mandatory and permits no departure. [para 29] [241-E-
H, B-D, E-F]
G lndrapuri Grah Nirman Sahakari Samiti Ltd. v. State of
Rajasthan and Others 2002 (3) WLN 122; Pesara
Pushapmala Reddy v. G. Veera Swamy and Others 2011
=
(3) SCR 496 2011 (4) SCC 306 - held inapplicable.
Chain Singh and etc., v. State of Rajasthan and Others
H AIR 1991 Rajasthan 17 - distinguished.
,.
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 223
STATE OF RAJASTHAN AND ORS.
2.2 In the instant case, s. 4(5) notice under the 1953 A
Act was issued by the state government in 1980 and
declaration u/s 6 was made on 19.03.1987. Having regard
to clear and unambiguous mandate of s. 5(2) of the 1981
Amendment Act, this Court holds that preliminary
notification dated 01.05.1980, which was followed by B
notice u/s 4(5) before the commencement of the 1981
Amendment Act, has lapsed and does not survive since
declaration u/s 6 has been made much beyond the time
limit prescribed in law. The impugned orders are set
aside. It is declared that preliminary notification dated c
01.05.1980 has lapsed and the declaration made on
19.03.1987 is legally unsustainable. If possession of the
subject land has been taken from the appellants, the
same shall be restored to them without any delay. [para
23, 32 and 33] [238-C-E; 243-G; 244-A-C]
D
Case Law Reference:
1964 SCR425 relied on Para 17
1973 (1) SCR 973 relied on Para 18
E
2005 (3) Suppl. SCR 388 relied on para 19
2010 (9) SCR 133 relied on para 20
1977 (1) SCR 763 referred to para 21
1985 (1) SCR 588 referred to para 21 F
1986 (3) SCR 743 referred to para 21
1995 (2) Suppl. SCR 329 referred to para 21
1995 (6) Suppl. SCR 827 referred to para 21 G
1996 (6) Suppl. SCR 529 referred to para 21
1998 (3) SCR 643 referred to para 21
2004 (8) sec 14 referred to para 21
H
\
224 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 2004 (1) Suppl. SCR 801 referred to para 21
2008 (12) sec 418 referred to para 21
2009 (14) SCR 905 referred to para 21
2009 (14) SCR 1111 referred to para 21
B
2011 (8) SCR 359 referred to para 21
2002 (3) WLN 122 held inapplicable para 30
AIR 1991 Rajasthan 17 distinguished para 30
c 2011 (3) SCR 496 held inapplicable para 31
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6392 of 2003.
From the Judgment & Order dated 11.01.2002 of the High
D Court of Judicature for Rajasthan at Jodhpur in D.B. Civil
Special Appeal No. 894 of 1999.
Manu Mridul, Priyambada Sharma (for Surya Kant) for the
Appellants. ·
E Dr. Manish Singhvi, MG Amit Lubhaya (for Milind Kumar),
Puneet Jain (for Sushil Kumar Jain) for the Respondents.
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. The compulsory acquisition of the land
F admeasuring 4 bigha and 2 biswa comprised in Khasra no.
1013 at Dungarpur (Rajasthan) is the subject matter of this
appeal by special leave. The appellants were .unsuccessful in
challenging the acquisition of the above land in the High Court.
They failed before the Single Judge as well as the Division
G Bench.
2. The two questions that arise for consideration are :
(i) Whether preliminary notification under Section 4 of
the Rajasthan Land Acquisition Act, 1953 (for short,
H "1953 Act") issued on 01.05.1980 has lapsed sin~
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 225
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.]
declaration under Section 6 of that Act was made A
on 19.03.1987 after the expiry of two years from the
commencement of the Rajasthan Land Acquisition
(Amendment and Validation) Act, 1981 (for short,
"1981 Amendment Act").
B
(ii) Whether invocation of power of urgency and
dispensation of inquiry under Section 5-A after 7
years of issuance of preliminary notification under
Section 4 of the 1953 Act are legally sustainable?
3. The above two questions arise from these facts: on C
01.05.1980, the state government issued a preliminary
notification under Section 4 that the subject land was needed
or likely to be needed for a public purpose, namely,
construction of bus stand. The state government required and
authorised Land Acquisition Officer (SDO), Dungarpur to enter D
upon, do survey and all other acts necessary to ascertain
whether land was suitable for such public purpose and enquire
into and ascertain the particulars of the persons interested in
such land.
E
4. On 19.03.1987, a notification was issued under Section
6 of the 1953 Act. By that notification the state government also
invoked its powers conferred under Section 17(1) read with
Section 17(4) of the 1953 Act and dispensed with the provisions
of Section 5-A.
F
5. An important event occurred between 01.05.1980 and
19.03.1987. The State Legislature following the Ordinance
promulgated by the Governor amended the 1953 Act by the
1981 Amendment Act. Effective from 27.06.1981, by the 1981
Amendment Act, Section 6 of 1953 Act was amended and the G
following proviso in Section 6 was inserted:
"Provided that no declaration in respect of any particular
land covered by a notice under section 4, sub-section 5,
given after the commencement of the Rajasthan Land H
226 SUPREME COURT REPORTS [2013) 2 S.C.R.
A Acquisition (Amendment and Validation) Act, 1981, shall
be made after the expiry of three years from the date of
giving of such notice:"
6. Section 5 of the 1981 Amendment Act provides for
validation of certain acquisitions. Sub-sections 1(b) and (2)
8
thereof, which are relevant for the present controversy, read as
follows:
"S. 5. Validation of certain acquisitions.-
c (1) (a) xxx xxx xxx
(b) any acquisition in pursuance of any notice given
under sub-section (5) of section 4 of the principal Act
before the commencement of this Act may be made after
such commencement and no such acquisition and no
D action taken or thing done (including any order made,
agreement entered into or notice given), whether before
or after such commencement, in connection with such
acquisition shall be deemed to be invalid merely on the
grounds referred to in clause (a) or any of them.
E
(2) Notwithstanding anything contained in clause (b)
of sub-section (1) no declaration under section 6 of the
principal Act in respect of any land for the acquisition of
which notice under sub-section (5) of section 4 of the
F principal Act has been given before the commencement
of this Act, shall be made after the expiry of two yeas from
the commencement of the said Act."
7. The above acquisition was challenged in three writ
G petitions before the High Court. One of these writ petitions was
filed by Laxman Lal and Manohar Lal. Both these petitioners
are dead and now represented by their legal representatives
who are appellants herein. The challenge to the acquisition was
laid on diverse grounds but none of the grounds persuaded the
Single Judge and all the three writ petitions were dismissed
H by a common order dated 11.05.1999.
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 227
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.]
8. The order of the Single Judge was challenged in intra- A
court appeal by the writ petitioners. Before the Division Bench,
the following three points were raised in support of the appeal:-
I) Proceedings could not be continued because
notification under Section 6 of the Act was issued after a
B
lapse of about 7 years. This was in view of the provisions
of sub-section (2) of Section 5 of the Rajasthan Land
Acquisition (Amendment and Validation) Act, 1981. The
said provisions provided a limitation of two years from the
date of commencement of the Validation Act for issuing
the declaration under Section 6. Since the declaration was
c
issued much beyond this period of limitation the same was
liable to be quashed. It was further contended that Section
17(4) notification could not be used to validate the
proceedings.
D
II) Notice under Section 17(4) was void ab initio because
the respondents failed to tender payment of 80 percent of
compensation as envisaged under sub-section (3)(a) of
Section 17 of the Land Acquisition Act.
E
Ill) The action of the respondents is highly arbitrary. By
• issuing a notification under Section 4 of the Act in the year
1980 the appellants were being pegged down for
purposes of payment of compensation although effectively
the acquisition was being made in the year 1987.
F
9. Dealing with the first point, the Division Bench held as
under:
It will be seen from the above that a declaration under
Section 6 in respect of the land can be made at any time G
after the publication of the notification under Section 4(1 ).
In view of this specific statutory provision which is
admitt~dly applicable, it cannot be said that a declaration
· under Section 6 could not have been issued after a lapse
of 7 years or more. Learned counsel for the appellants
H
228 SUPREME COURT REPORTS [2013] 2 S.C.R.
fairly conceded that Section 17 is a Code in itself. It
contains complete procedure for acquisition made under
the said provision. Section 17 is a provision to be resorted
to in cases of urgency. Notification under Section 4 of the
Act already stood issued with respect to the land in
question as far back as the year 1980. The Government
felt the urgency for the acquisition and, therefore, Section
17(4) notification, read with Section 6, was issued on
19.03.1987. We find no illegality in the procedure following
in the facts of the case.
c 10. It is not necessary to deal with the second ground
urged before the Division Bench as it has not been pressed
before us. As regards the third ground, the Division Bench held
as under:
D "Lastly, the learned counsel raised an argument suggesting
arbitrariness on the part of the respondents. As already
noted, Section 17 permits the Government to invoke its
provisions at any time, therefore, there is no statutory bar
so far as the action is concerned. If the action of the
E respondents results in some hardship to the landowners
normally, the provision regarding payment of interest takes
care of the hardship. The power of compulsory acquisition ... •
of land is in the nature of a power of eminent domain which
the State is entitled to exercise keeping in view the larger
F public interest as against individual interest.·
11. We shall deal with the second question first. Two basic ·
facts are not in dispute, namely, one, preliminary notification
under Section 4 showing intention to acquire the subject land
for a public purpose, namely, construction of bus stand was
G issued by the state government on 01.05.1980 and two, the
declaration under Section 6 of the 1953 Act was made on
19.03.1987 and by means of that very notification the state
government exercised its power of urgency under Section 17(1)
read with Section 17(4) and dispensed with enquiry under
H Section 5A. Thus, the power of urgency was invoked for the first
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 229
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.)
time by the state government after seven years of issuance of A
the preliminary notification under Section 4.
12. Section 4 of the 1953 Act is identical to Section 4 of
the Land Acquisition Act, 1894 (for short, "1894 Act"). It
provides that whenever the state government considers it 8
necessary or expedient to acquire land in any locality, needed
or likely to be needed for a public purpose, it shall, by an order
published in accordance with the provisions of sub-section (4)
of Section 45, require any officer subordinate to it and generally
or specially authorised in this behalf, to enter upon or into any C
land in such locality accompanied by his servants and workmen
for the purpose stated therein. Sub-section (5) of Section 4
empowers the Collector to issue notice to the persons
interested of the proposed acquisition and also issue a public
notice to that effect at convenient places on or near about the
land proposed to be acquired. D
13. Section SA enables the person interested in any land
in respect of which notice has been issued under Section 4 (5)
to object to acquisition of that land.
E
14. Section 6 is also similar to Section 6 of the 1894 Act.
Inter alia, it provides that when the state government is satisfied
after considering the report, if any, made under Section 5-A that
any particular land is needed for a public purpose, a declaration
shall be made to that effect. Such declaration is conclusive F
evidence that the land is needed for a public purpose and after
making such declaration the state government may acquire the
land in the manner provided in sub-section (4) thereof. As
noticed above, Section 6 came to be amended by the 1981
Amendment Act and, inter alia, limitation of three years for
issuance of notification under Section 6 was fixed from the date G
of issuance of notice under Section 4(5). As regards the notice
issued under Section 4(5) prior to the 1981 Amendment Act,
limitation of two years from coming into force of the 1981
Amendment Act was fixed.
H
230 SUPREME COURT REPORTS [2013] 2 S.C.R.
·A 15. Section 17 of the 1953 Act gives special powers to
the state government in the cases of urgency and emergency.
To the extent it is relevant, Section 17 reads as under:
"S. 17. Special powers in case of urgency.__:ln cases of
urgency, whenever the State Government so directs the
B
Collector though no such award has been made may, on
the expiration of fifteen days from the publication of the
notice mentioned in section 9, sub-section (1 ), take
possession of any waste or arable land needed for public
purposes or for a company. Such land shall thereupon vest
c absolutely in the State Government free from all
encumbrances.
xxx xxx xxx
D 2. xxx xxx xxx
3. xxx xxx xxx
4. In the case of any land to which in the opinion of the
State Government the provisions of sub-sections (1) or
E sub-section (2) are applicable the State Government may
direct that the provisions of section 5-A shall not apply and,
if it does so direct a declaration may be made under
section 6 in respect of the land at any time after the
publication of the order under sub-section (1) of section
F 4.
5. xxx xxx xxx
6. xxx xxx xxx
G 7. xxx xxx
16. The statutory provisions of compulsory acquisition
contained in the 1953 Act are not materially different from the
1894 Act. This Coµrt has explained the doctrine of eminent
H domain in series of cases. Eminent domain is the right or power
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 231
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.]
· of a sovereign state to appropriate the private property within A
the territorial sovereignty to public uses or purposes. It is an
attribute of sovereignty and essential to the sovereign
government. The power of eminent domain, being inherent in
the government, is exercisable in the public interest, general
welfare and for public purpose. The sovereign is entitled to B
reassert its dominion over any portion of the soil of the state,
including private property without its owner's consent provided
that such assertion is on account of public exigency and for
public good.
17. Article 300-A of the Constitution mandates that no
c
person shall be deprived of his property save by authority of
law. Though right to property is no longer a fundamental right
but the constitutional protection continues in as much as without
the authority of law, a person cannot be deprived of his property.
Accordingly, if the state intends to appropriate the private D
property without the owners' consent by acting under the
statutory provisions for compulsory acquisition, the procedure
authorised by law has to be mandatorily and compulsorily
followed. The power of urgency which takes away the right to
file objections can only be exercised by the state government E
for such public purpose of real urgency which cannot brook
delay of few weeks or few months. This Court as early as in
1964 said that the right to file objections under Section 5-A is
a substantial right when a person's property is being threatened
-· with acquisition; such right cannot be taken away as if by a side F
wind (Nandeshwar Prasad & Ors. v. U.P. Govt. & Ors. 1).
18. In Munshi Singh & Ors. v. Union of lndia 2, this Court
explained the importance of Section 5-A in the following terms:
"7. Section 5-A embodies a very just and wholesome G
principle that a person whose property is being or is
intended to be acquired should have a proper and
1. AIR 1964 SC 1217.
2. (1973) 2 sec 337. H
232 SUPREME COURT REPORTS [2013) 2 S.C.R.
A reasonable opportunity of persuading the authorities
concerned that acquisition of the property belonging to that
person should not be made. We may refer to the
observation of this court in Nandeshwar Prasad v. The ..
State of U.P. [AIR 1964 SC 1217) that the right to file
B objections under Section 5-A is a substantial right when a
person's property is being threatened with acquisition and
that right cannot be taken away as if by a side wind. Sub-
section (2) of Section 5-A makes it obligatory on the
Collector to give an objector an opportunity of being heard.
After hearing all objections and making further inquiry he
c is to make a report to the appropriate Government
containing his recommendation on the objections. The ...
decision of the appropriate Government on the objections
is then final. The declaration under Section 6 has to be
made after the appropriate Government is satisfied, on a
D
consideration of the report, if any, made by the Collector
under Section 5-A(2). The legislature has, therefore, made
complete provisions for the persons interested to file
objections against the proposed acquisition and for the
disposal of their objections. It is only in cases of urgency
E that special powers have been conferred on the
appropriate Government to dispense with the provisions
of Section 5-A: [See Section 17(4) of the Acquisition Act.]" ·-
19. In Hindustan Petroleum Corporation Ltd. v. Darius
F Shapur Chenai & Ors. 3, it was reiterated by this Court that
Section 5-A confers a valuable right in favour of a person whose
lands are sought to be acquired.
20. We do not think it is necessary to multiply the
authorities. In a comparatively recent judgment, this Court
G
speaking through one of us (R.M. Lodha, J.) in Anand Singh
' and Another v. State of Uttar Pradesh and Others" explained
the importance of Section 5-A in the following words:
3. c2oos) 1 sec s21.
H 4. c201 O) 11 sec 242.
' '
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 233
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.l
"41 ....... That Section 5-A of the Act confers a valuable right A.
to an individual is 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.
B
42. When the Government proceeds for compulsory
acquisition of a particular property for public purpose, the
only right that the 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 C
land by setting forth the reasons such as the unsuitability
of the land for the stated public purpose; the grave
-I hardship that may be caused to him by such expropriation.
availability of alternative land for achieving public purpose.
etc. Moreover, the right conferred on the owner or person D
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 of natural justice."
E
21. This Court has dealt with the scope, extent and ambit
of the power of the state government under Section 17(1) and
(4) of the 1894 Act from time to time. Narayan Govind Gavate
& Ors. v. State of Maharashtra & Ors. 5, Deepak Pahwa & Ors.
v. Lt. Governor of Delhi & Ors. 6, State of U.P. v. Smt. Pista F
Dev & Ors. 7, State of U.P. & Anr. v. Keshav Prasad Singh8,
Chameli Singh & Ors. v. State of U.P. & Anr. 9, Meerut
Development Authority & Ors. v. Satbir Singh & Ors. 10, Om
5. (1977) 1 sec 133.
6. (1984) 4 sec 308. G
1. (1986) 4 sec 251.
,. 8. (1995) 5 sec 587.
9. (1996) 2 sec 549.
10. (1996) 11 sec 462.
H
234 SUPREME COURT REPORTS (2013] 2 S.C.R.
A Prakash & Anr. v. State of U.P. & Ors. 11 , Union of India & Ors.
v. Mukesh Hans 12, Union of India & Ors. v. Krishan Lal
Ameja & Ors. 13, Mahadevappa Lachappa Kinagi & Ors. v.
State of Kamataka & Ors. 14, Babu Ram & Anr. v. State of
Haryana &Anr. 15 and Tika Ram & Ors. v. State of U.P. 16 have
B been referred to in Anand Singh4 and the legal position in
paragraphs 43 to 48 of the Report (pgs. 265-266) is culled out
as follows:
"43. The exceptional and extraordinary power of doing
away with an enquiry under Section 5-A in a case where
c possession of the land is required urgently or in an
unforeseen emergency is provided in Section 17 of the Act. ·
Such power is not a routine power and save
circumstances warranting immediate possession it should
not be lightly invoked. The guideline is inbuilt in Section
D 17 itself for exercise of the exceptional power in
dispensing with enquiry under Section 5-A. Exceptional the
power, the more circumspect the Government must be in
its exercise. The Government obviously, therefore, has to
apply its mind before it dispenses with enquiry under
E 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
F that the State Government is satisfied that the land
specified in the notification is urgently needed and the
provision contained in Section 5-A shall not apply, though
may initially raise a presumption in favour of the
Government that prerequisite conditions for exercise of
G 11. (1998) s sec 1.
s sec 14.
12. (2004)
13. (2004) s sec 453.
14. c2ooa) 12 sec 41a.
15. (2009) 10 sec 11s.
H 1s. (2009) 10 sec 689.
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 235
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.]
......
such power have been satisfied, but such presumption A
may be displaced by the circumstances themselves having
no reasonable nexus with the purpose for which the power
has been exercised. Upon challenge being made to the
use of power under Section 17, the Government must
produce appropriate material before the Court that the B
opinion for dispensing with the enquiry under Section 5-A
has been formed by the Government after due application
of mind on the material placed before it.
45. It is true that power conferred upon the Government
under Section 17 is administrative and its opinion is c
entitled to due weight, but in a case where the opinion is
formed regarding the urgency based on considerations not
germane to the purpose, the judicial review of such
•
administrative decision may become necessary.
D
46. As to in what circumstances the power of emergency
can be invoked are specified in Section 17(2) but
circumstances necessitating invocation of urgency under
Section 17(1) are not stated in the provision itself.
Generally speaking, the development of an area {for E
residential purposes) or a planned development of city,
takes many years if not decades and, therefore, there is
•• no reason why summary enquiry as contemplated under
Section 5-A may not be held and objections of
landowners/persons interested may not be considered. In F
many cases, on general assumption likely delay in
completion of enquiry under Section 5-A is set up as a
reason for invocation of extraordinary power in dispensing
with the enquiry little realising that an important and valuable
right of the person interested in the land is being taken
G
away and with some effort enquiry could always be
completed expeditiously.
47. The special provision has been made in Section 17
to ~liminate enquiry under Section 5-A in deserving and
H
236 SUPREME COURT REPORTS [2013] 2 S.C.R.
.,.
A cases of real urgency. The Government has to apply its
mind on the aspect that urgency is of such nature that
necessitates dispensation of enquiry under Section 5-A.
We have already noticed a few decisions of this Court.
There is a conflict of view in the two decisions of this Court
B viz. Narayan Govind Gavate [(1977) 1 SCC 133] 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 sec 251] must be confined to the fact situation
in those days when it was rendered and the two-Judge
Bench could not have laid down a proposition contrary to
c the decision in Narayan Govind Gavate [(1977) 1 SCC
133]. We agree.
48. As regards the issue whether pre-notification and post-
notification delay would render the invocation of urgency
D power void, again the case law is not consistent. The view
of this Court has differed on this aspect due to different
fact situation prevailing in those cases. In our opinion such
delay will have material bearing on the question of
invocation of urgency power, particularly in a situation
E 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." '
F 22. Anand Singfrl has been referred to in later cases, one
of such decisions is Radhy Shyam (Dead) Through LRs &
Ors.. v. State of Uttar Pradesh and Others' 7 wherein this Court
in paragraph 77 (v) to (ix) of the Report stated as follows:
"77(v) Section 17(1) read with Section 17(4) confers
G extraordinary power upon the State to acquire private
property without complying with the mandate of Section 5-
A. These provisions can be invoked only when the purpose
of acquisition cannot brook the delay of even a few weeks
H 17. c2011) 5 sec 553.
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 237
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.]
or months. Therefore, before excluding the application of A
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. B
(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
c
purpose at all or that the exercise of power is vitiated due
to mala tides 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 D
Section 17(1) does not necessarily result in exclusion of
Section 5-A of the Act in terms of which any person
interested in land can file objection and is entitled to be
heard in support of his objection. The use of word "may"
in sub-section (4) of Section 17 makes it clear that it E
merely enables the Government to direct that the provisions
<
of Section 5-A would not apply to the cases covered under
sub-section (1) or (2) of Section 17. In other words,
invoking of Section 17(4) is not a necessary concomitant
of the exercise of power under Section 17(1). F
(viii) The acquisition of land for residential, commercial,
industrial or institutional purposes can be treated as an
acquisition for public purposes within the meaning of
Section 4 but that, by itself, does not justify the exercise
of power by the Government under Sections 17(1) and/or G
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 H
238 SUPREME COURT REPORTS (2013] 2 S.C.R.
A purpose by invoking the urgency provision contained in
Section 17(1 ). In any case, exclusion of the rule of audi
alteram partem embodied in Sections 5-A(1) and (2) is not
at all warranted in such matters.
(ix) If land is acquired for the benefit of private persons,
B
the court should view the invoking of Sections 17(1) and/
or 17(4) with suspicion and carefully scrutinise the relevant
record before adjudicating upon the legality of such
acquisition."
C 23. In light of the above legal position which is equally
applicable to Section 17(1) and (4) of the 1953 Act, we may
turn to the fact situation of the present matter. Section 4(5)
notice under the 1953 Act was issued by the state government
in 1980. For almost seven years, no steps were taken in taking
D the acquisition proceedings pursuant to the Section 4(5) notice
to the logical conclusion. Even inquir)' under Section 5-A was
not commenced, much less completed. Abruptly on
19.03.1987, without following the procedure contemplated
in Section 5-A, the declaration under Section 6 was made
E and in that notification the state government stated that it
has invoked its power of urgency under Section 17(1) and
dispensed with inquiry under Section 5-A in exercise of its ,
power under Section 17(4). Can it be said that an inquiry
under Section 5-A could not have been completed in all
F these years? We think that it could have been done easily
and conveniently in few months leave aside few years.
There were not large number of owners or persons interested
in respect of the subject land. Section 5-A, which gives a very
limited right to an owner/person interested, is not an empty
G formality. The substantial right under Section 5-A is the only
right given to an owner/person interested to object to the
acquisition proceedings. Such right ought not to be taken away
by the State Government sans real urgency. The strong arm
of the government is not meant to be used nor it should be
used against a citizen in appropriating the property against his
H
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 239
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.]
consent without giving him right to file objections as A
incorporated under Section 5-A on any ostensible ground. The
dispensation of enquiry under Section 17(4) has to be founded
on considerations germane to the purpose and not in a routine
manner. Unless the circumstances warrant immediate
possession, there cannot be any justification in dispensing with B
an enquiry under Section 5-A. As has been stated by this Court
in Anand Singh4, elimination of enquiry under Section 5-A must
only be in deserving and in the cases of real urgency. Being
an exceptional power, the government must be circumspect in
exercising power of urgency. c
24. In Anand Singh4 , dealing with the issue whether the
pre-notification and post-notification delay would render the
invocation of urgency power void, this Court said that such delay
would have material bearing on the question of invocation of
urgency power, more so, in a situation where no material has D
been placed by the appropriate government before the Court
justifying that urgency was of such nature that necessitated
elimination of inquiry under Section 5-A.
25. In the counter affidavit filed on behalf of the respondent E
nos. 1 to 3 before this Court, in respect of invocation of power
of urgency under Section 17(1) and dispensation of inquiry
under Section 17(4), it is stated as follows:
" ........ Section 17 of the Rajasthan Land Acquisition Act
which is a code containing complete procedure for F
acquisition made under the said provision in case of
urgency. In the present petition, urgency of the acquisition
has been shown by the respondent. For the purpose of
public interest, as a bus stand was to be put up, hence the
nature of urgency is quite apparent. G
The government issued notification under Section 6
read with 17(4) of the Act on 19.03.1987 under the
compulsory need of the land ........ ".
H
240 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 26. The counter affidavit filed by the respondent no. 4, i.e.,
Rajasthan State Road Transport Corporation is not relevant as
Section 17 confers power of urgency only on the state
government alone and it is the state government that has to
justify that the urgency was so imminent that dispensation of
B inquiry under Section 5-A was necessary.
27. The explanation by the state government unsupported
by any material indicates that the state government feels that
power conferred on it under Section 17(1) and (4) is unbridled
and uncontrolled. The state government seems to have some
C misconception that in the absence of any time limit prescribed
in Section 17(1) and (4) fcir exercise of such power after
issuance of notice under Section 4 of the 1953 Act, it can
invoke the power of urgency whenever it wants. We are afraid
the whole understanding of Section 17 by the state government
D is fallacious. This Court has time and again said with regard
to Section 17(1) read with Section 17 (4) of the 1894 Act that
the provisions contained therein confer extraordinary power
upon the state to appropriate the private property without
complying with the mandate of Section 5-A and, therefore,
E these provisions can be invoked only when the purpose of
acquisition cannot brook the delay of even few weeks or
months. This principle equally applies to the exercise of power
under Section 17(1) and (4) of the 1953 Act. The state
government, therefore, has to apply its mind before it invokes
F its power of urgency and dispensation of inquiry under Section
5-A that the compliance of the mandate of Section 5-A may
lead to precious loss of time which may defeat the purpose for
which land is sought to be acquired. Any construction of
building (institutional, industrial, residential, commercial etc.)
G takes some time and, therefore, acquisition of land for such
purpose can always brook delay of few months. Ordinarily,
invocation of power of urgency by the state government for such
acquisition may not be legally sustainable.
28. In this case, as noted above, the preliminary notification
H
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v. 241
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.]
, under Section 4 was issued on 01.5.1980. After lapse of about A
•
7 years on 19.03.1987, one fine morning the state government
issued declaration under Section 6 without complying with the
mandate of Section 5-A and in that declaration it was stated
that it has invoked its powers conferred under Section 17(1)
read with Section 17 (4) of the 1953 Act and dispensed with B
the provisions of Section 5-A. Had the state government
intended to hold and complete the inquiry under Section 5-A.
it could have been done in few months. However, no steps for
commencement of the inquiry under Section 5-A were even
taken by the state government. We find that a very valuable c
right conferred on the land owner/person interested under
Section 5-A has been taken away without any justification. It
is so because the bus stand construction would have taken
some time. The exercise of the power by the state government
under section 17(1) read with Section 17(4) of the 1953 Act D
and dispensation of inquiry under Section 5-A can not be
legally sustained and has to be declared as such.
29. Now, coming to the first question, it will be seen that
preliminary notification under Section 4 was issued on
01.05.1980. At the time of issuance of the preliminary E
notification, the 1953 Act did not prescribe any time limit for
issuance of declaration under Section 6. However, with effect
from 27.06.1981 by the 1981 Amendment Act, Section 6 was
amended and a proviso was inserted that no declaration in
respect of any land covered by notice under Section 4, sub- F
section (5), given after the commencement of the 1981
Amendment Act shall be made after the expiry of three years
from the date of giving of such notice. This proviso is obviously
·applicable to the acquisition proceedings initiated after coming
into force of the 1981 Amendment Act and has no application G
to the present fact situation. As regards the acquisition
proceedings which had already commenced by issuance of
preliminary notification before coming into force of the 1981
Amendment Act, Section 5(1)(b) of the 1981 Amendment Act,
inter alia, provides that acquisition pursuant to such preliminary H .·
242 SUPREME COURT REPORTS [2013] 2 S.C.R.
A notification may be completed after commencement of the
1981 Amendment Act and no such acquisition and no action
taken or thing done including any order made, agreement
entered into or notice given, whether before or after such
commencement, in connection with such acquisition shall be
B deemed to be invalid merely on the grounds referred to in
clause (a) or any one of them. Sub-section (2) of Section 5 of
the 1981 Amendment Act, however, provides that
notwithstanding anything contained in clause (b) of sub-section
(1 ), no declaration under Section 6 of the 1953 Act in respect
c of any land for the acquisition of which notice under sub-section
(5) of Section 4 has been given before the commencement of
the 1981 Amendment Act shall be made after the expiry of two
years from the commencement of the 1981 Amendment Act..
Sub-section (2) of Section 5 of the 1981 Amendment Act
begins with non obstante clause. Section 5(2) of the 1981
0
Amendment Act thus mandates that no declaration under
Section 6 in respect of the notice issued under Section 4(5)
before the commencement of the 1981 Amendment Act shall
be made after expiry of two years from the commencement of ·
the said Act. The provision leaves no manner of doubt that two
E years' time prescribed for making declaration under Section 6
in respect of the notice issued under Section 4(5) prior to the
commencement of the 1981 Amendment Act is mandatory and
permits no departure. This is clear from the words "no
declaration" and "shall be made" used in Section 5(2). The
F intention of the legislature admits of no ambiguity and it is clear
that in respect of the notice issued under Section 4(5) before
the commencement of the 1981 Amendment Act, it is obligatory
on the stale government to make declaration on or before the
expiry of two years from the commencement of the 1981
G Amendment Act. The provision is imperative in nature and has
to be followed as it lays down the maximum time limit within
which the declaration under Section 6 of the 1953 Act can be
made in respect of the notice under Section 4(5) issued before
the commencement of the 1981 Amendment Act.
H
LAXMAN LAL (DEAD) THROUGH LRS. AND ANR. v.- 243
STATE OF RAJASTHAN AND ORS. [R.M. LODHA, J.]
30. On behalf of the respondents, two decisions of the A
Rajasthan High Court, one, lndrapuri Grah Nirman Sahakari
Samiti Ltd. v. State of Rajasthan and Others 18 and the other,
Chain Singh and etc., v. State of Rajasthan and Others 19 were
cited. We are afraid insofar as lndrapuri Grah Nirman Sahakari ·
Samiti Ltd. 18 is concerned, it has no application whatsoever. B
As regards Chain Singh 19 , the Division Bench of the Rajasthan
High Court was concerned with the provisions of the Land
Acquisition (Rajasthan Amendment) Act, 1987 amending the
1894 Act. The provisions under consideration before the
Rajasthan High Court in Chain Singh 19 were materially different c
and, therefore, that decision is of no help to the respondents.
31. Learned counsel for the respondents also cited a
decision of this Court in Pesara Pushapmala Reddy .v. G.
Veera Swamy and Others20 . In Pesara Pushpamala Reddy20,
this Court was concerned with the questions whether it was D
mandatory for the special tribunal or the special court to call
for a report of the Mandal Revenue Officer before taking
cognizance of a case under the Andhra Pradesh Land
Grabbing (Prohibition) Act, 1982 (for short, "Land Grabbing
Act") and whether it was mandatory for the special tribunal or E
the special court to publish a notification in the gazette notifying
the fact of cognizance of a case under the Act. This Court
considered the provisions of the Land Grabbing Act. In our view,
Pesara Pushpamala Reddy20 is not even remotely relevant for
the present case and has no application at all. F
32. Having regard to clear and unambiguous mandate of
Section 5(2) of the 1981 Amendment Act that no declaration
under Section 6 of the 1953 Act in respect of any land for the
acquisition of which notice under Section 4(5) has been given G
before the commencement of the 1981 Amendment Act shall
be made after the expiry of two years from the commencement
18. 2002 (3) WLN 122.
19. AIR 1991 Rajasthan 17.
20. (2011) 4 sec 306. H
244 SUPREME COl:JRT REPORTS (2013] 2 S.C.R.
A of the 1981 Amendment Act, it has to be held and we hold that
preliminary notification dated 01.05.1980, which was followed
by notice under Section 4(5) before the commencement of the
1981 Amendment Act, has lapsed and does not survive since
declaration under Section 6 has been made much beyond the
B time limit prescribed in law.
33. Civil appeal is, accordingly, allowed. The impugned
orders are set aside. It is declared that preliminary notification
dated 01.05.1980 has lapsed and the declaration made on
C 19.03.1987 is legally unsustainable. If possession of the subject
land has been taken from the appellants, the same shall be
restored to them without any delay. No orders as to costs.
R.P. Appeal allowed.
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