Supreme Court of India
SRI RADHY SHYAM (D) THROUGH LRS. & ORS.versusSTATE OF U.P. & ORS.
- Citation
- 2011 INSC 304
- Decided
- 15 April 2011
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
The Court held that the State could not invoke Sections 17(1) and 17(4) without real urgency and must comply with the hearing requirement of Section 5‑A; consequently, the High Court's dismissal was erroneous.
Summary
The State of Uttar Pradesh, through the Greater Noida Industrial Development Authority, acquired land belonging to the appellants for a planned industrial development of Gautam Budh Nagar, invoking Sections 17(1) and 17(4) of the Land Acquisition Act, 1894, thereby dispensing with the hearing provision of Section 5‑A. The appellants challenged the acquisition on the grounds that there was no real urgency, that they were denied the statutory right to be heard, that the acquisition was discriminatory under Article 14, and that the land was earmarked as residential in the master plan. The Allahabad High Court dismissed the writ petition and non‑suited the appellants, holding that the petition lacked a proper affidavit. The Supreme Court held that the High Court erred, that the State had not demonstrated any genuine urgency justifying the use of Section 17(1) and 17(4), and that the statutory requirement of a Section 5‑A enquiry could not be ignored. The Court also found merit in the appellants' claim of violation of the equality principle and ordered the impugned notification set aside, directing the State to proceed only after complying with Section 5‑A and awarding costs to the appellants.
Issues considered
- The State was justified in invoking the urgency clause under Section 17(1) and 17(4) of the Land Acquisition Act and dispensing with the enquiry under Section 5‑A.
- Whether the High Court was correct in non‑suiting the appellants for lack of a specific affidavit.
- Whether the acquisition violated Article 14 of the Constitution by selective acquisition of land.
Legislation cited
- Constitution of Indias. Article 14, s. Article 226, s. Article 300-A
- Indian Evidence Act, 1872s. 101, s. 102, s. 106
- Land Acquisition Act, 1894s. 17(1), s. 17(4), s. 4, s. 5-A, s. 6
- Uttar Pradesh Act No.8 of 1974 (amendment to Land Acquisition Act)
- Uttar Pradesh Industrial Areas Development Act, 1976
Subjects
land acquisitionurgency clauseSection 5-Aeminent domainArticle 14equalitynatural justiceaudi alteram partempublic purposeindustrial development
Judgment
[2011) 8 S.C.R. 359
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. A
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 3261 of 2011)
APRIL 15, 2011
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Land Acquisition Act, 1894 - ss. 17(1) & (4) and 5-A:
Acquisition of land - Power of eminent domain - Power c
conferred upon the State to acquire private property -
Invocation of urgency clause and dispensing with enquiry as
envisaged under s.5-A - When permissible - Principles re-
stated.
Writ petition filed by appellants questioning the D
acquisition .of their/and for planned industrial development
of District Gautam Budh Nagar through Greater NO/DA
Industrial Development Authority by invoking s.17(1) and
17(4) of the Act, as amended by Uttar Pradesh Act No.8 of
1974 - Plea of appellants that there was no justification to E
invoke the urgency clause and to dispense with the inquiry
envisaged under s. 5-A - High Court non-suited the appellants
and dismissed the writ petition - On appeal, held: The
appellants had succeeded in making out a strong case for
deeper examination of the issues raised in the writ petition F
and the High Court committed serious error by summarily
non-suiting them - The assertion by the appellants that there
was no urgency in the acquisition of land; that the concerned
authorities did not apply mind to the relevant factors and
records and arbitrarily invoked the urgency provisions and G
thereby denied him the minimum opportunity of hearing in
terms of s.5-A(1) and (2), should have been treated by the
High Court as sufficient for calling upon the respondents to
file their response and produce the relevant records to justify
359 H
360 SUPREME COURT REPORTS [2011] 8 S.CJ _
A the invoking of urgency provisions - On facts, the acquisition
was primarily meant to cater private interest in the name of
industrial development of the district - Even if planned
industrial development of the district is treated as public
purpose within the meaning of s. 4, on facts there was no
B urgency which could justify the exercise of power by the State
Government under s.17(1) and 17(4) - The time required for
ensuring compliance of the provisions contained in s. 5-A
cannot, by any stretch of imagination, be portrayed as delay
which will frustrate the purpose of acquisition - There was no
c wa"ant to exclude the application of s.5-A which represent the
statutory embodiment of the rule of audi alteram partem -
There is also merit in the appellants' plea that the acquisition
of their land was vitiated due to violation of the doctrine of
equality enshrined in Article 14 of the Constitution inasmuch
as the respondents adopted the policy of pick and choose in
0
acquiring some parcels of land - The Court cannot refuse to
protect the legal and constitutional rights of the appellants
merely because some other landowners did not come forward
to challenge the illegitimate exercise of power by the State
Government - Respondent No. 1 directed to pay cost of
E Rs. 5, 00, 0001- to the appellants for forcing unwarranted
litigation on them - However, the respondents shall be free
to proceed from the stage of s.4 notification and take
appropriate action after complying with s.5-A(1) and (2) - If
the appellants fee/ aggrieved by the fresh exercise
F undertaken by the State Government then they shall be free
to avail appropriate legal remedy - Constitution of India, 1950
- Article 14.
Constitution of India, 1950 - Article 226 and 300A -
G Acquisition of land - Invocation of s.17(1) and/or 17(4) - Writ
petition filed by landowner under Art.226 - Held: While
examining the land owner's challenge to the acquisition of land
in a petition filed under Article 226, the High Court should not
adopt a pedantic approach - It should decide the matter
H keeping in view the constitutional goals of social and
1
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 361
STATE OF U.P. & ORS.
economic justice and the fact that even though the right to A
propetty is no longer a fundamental right, the same continues
to be an impottant constitutional right and in terms of Atticle
300-A, no person can be deprived of his propetty except by
authority of law - In cases where the acquisition is made by
invoking s.4 read with s.17(1) and/or 17(4), the High Coutt B
should insist upon filing of reply affidavit by the respondents
and production of the relevant records and carefully scrutinize
the same before pronouncing upon legality of the impugned
notification/action because a negative result without
examining the relevant records to find out whether the c
competent authority had formed a bona fide opinion on the
issue of invoking the urgency provision and excluding the
application of s.5-A is likely to make the land owner a landless
poor and force him to migrate to the nearby city only to live
in a slum - A depatture from this rule should be made only 0
when land is required to meet really emergent situations like
those enumerated in s. 17(2) - If the acquisition is intended
to benefit private person(s) and the provisions contained in
s.17(1) and/or 17(4) are invoked, then scrutiny of the
justification put forward by the State should be more rigorous
and relief should not be denied to the petitioner by applying E
the technical rules of procedure embodied in the Code of Civil
Procedure and other procedural laws - While dealing with
challenge to the acquisition of land belonging to those who
suffer from handicaps of povetty, illiteracy and ignorance and
do not have the resources to access the material relied upon F
by the functionaries of the State and its agencies for forming
an opinion or recording a satisfaction that the urgency
provisions contained in s.17(1) should be resorted to and/or
the enquiry envisaged under s. 5A should be dispensed with,
the High Court should not literally apply the abstract rules of G
·burden of proof enshrined in the Evidence Act - Land
Acquisition Act, 1894 - ss. 17(1) & (4) and 5-A.
The State Government acquired the land owned by
the appellants for the planned industrial development of H
362 SUPREME COURT REPORTS [2011) 8 S.C.F\
A District Gautam Budh Nagar through Greater NOIDA
Industrial Development Authority by invoking Section
17(1) and 17(4) of the Land Acquisition Act, 1894, as
amended by the Uttar Pradesh Act No. 8 of 1974. The
appellants filed writ petition challenging the acquisition
B of their land on grounds (i) that the land could not be
used for industrial purposes because in the draft Master
Plan of Greater NOIDA (2021 ), the same was shown as
part of residential zone; (ii) that they had already
constructed dwelling houses and as per the policy of the
c State Government, the residential structures were
exempted from acquisition; (iii) that the State Government
arbitrarily invoked Section 17(1) read with Section 17(4)
of the Act and deprived them of their valuable right to
raise objections under Section 5-A and (iv) that the
acquisition of land was vitiated by arbitrariness, mala
0
fides and violation of Article 14 of the Constitution
inasmuch while the lands )f the Member of Legislative
Assembly and other influential persons were left out from
acquisition despite the fact that they were not in abadi,
E the appellant-landowners were not given similar treatment
although their land was part of abadi and they had
constructed dwelling units. The writ petition was
dismissed by the High Court.
In the instant appeal, the appellants contended that
F the High Court had failed to consider the issues raised
in the writ petition in a. correct perspective. They
contended that though they had specifically pleaded that
there was no valid ground to invoke the urgency clause
contained in Section 17(1) and to dispense with the
G application of Section 5-A but the High Court did not even
call upon the respondents to file counter affidavit and
brushed aside the challenge to the acquisition
proceeding on a wholly untenable premise that the
affidavit filed in support of the writ petition was laconic.
H It was further contended on behalf of the appellants that
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 363
STATE OF U.P. & ORS.
the purpose for which land was acquired i.e. planned A
industrial development of the district did not justify
invoking of the urgency provisions and denial of
opportunity to the appellants and other land owners to
file objections under Section 5-A (1) and to be heard by
the Collector in terms of the mandate of Section 5-A (2) B
and further that the High Court had misdirected itself in
summarily dismissing the writ petition ignoring the
substantive plea of discrimination raised by the
appellants.
The questions which therefore arose for C
consideration in the instant appeal were (1) whether the
High Court was justified in non-suiting the appellants on
the ground that they had not raised a specific plea
supported by a proper affidavit to question the decision
taken by the State government to invoke Section 17(1) D
and 17(4) of the Land Acquisition Act; 1894 and (2)
· whether the appellants had succeeded in prima facie
proving that there was no justification to invoke the
urgency clause and to dispense with the inquiry
envisaged under Section 5-A. . E
Allowing the appeal, the Court
HELD:1.1. At the outset, this Court records its
disapproval of the casual manner in which the High Court
disposed of the writ petition without even calling upon F
the respondents to file counter affidavit and produce the
relevant records. A reading of the averments contained
in the writ petition, coupled with the appellants' assertion
that the acquisition of their land was vitiated due to
discrimination inasmuch as land belonging to influential G
persons had been left out from acquisition, but their land
was acquired in total disregard of the policy of the State
Government to leave out land on which dwelling units
had already been constructed, show that the appellants
H
364 SUPREME COURT REPORTS [2011] 8 S.C.R.
A had succeeded in making out a strong case for deeper
examination of the issues raised in the writ petition and
the High Court committed serious error by summarily
non-suiting them. [Para 15] [388-E-G]
1.2. The majority of the landowners do not have any
8
idea about their constitutional and legal rights, which can
be enforced by availing the constitutional remedies
under Articles 32 and 226 of the Constitution. They
reconcile with deprivation of land by accepting the
amount of compensation offered by the Government and
C by thinking that it is their fate and destiny determined by
God. Eve_n those who get semblance of education are
neither conversant with the functioning of the State
apparatus nor they can access the records prepared by
the concerned authorities as a prelude to the acquisition
D of land by invoking Section 4 with or without the aid of
Section 17(1) and/or 17(4). Therefore, while examining the
land owner's challenge to the acquisition of land in a
petition filed under Article 226 of the Constitution, the
High Court should not adopt a pedantic approach, as has
E been done in the present case, and decide the matter
keeping in view the constitutional goals of social and
economic justice and the fact that even though the right
to property is no longer a fundamental right, the same
continues to be an important constitutional right and in
F terms of Article 300-A, no person can be deprived of his
property except by authority of law. In cases where the
acquisition is made by invoking Section 4 read with
Section 17(1) and/or 17(4), the High Court should insist
upon filing of reply affidavit by the respondents and
G production of the relevant records and carefully scrutinize
the same before pronouncing upon legality of the
impugned notification/action because a negative result
without examining the relevant records to find out
whether the competent authority had formed a bona fide
H opinion on the issue of invoking the urgency provision
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 365
STATE OF U.P. & ORS.
and excluding the application of Section 5-A is likely to A
make the land owner a landless poor and force him to
migrate to the nearby city only to live in a slum. A
departure from this rule should be made only when land
is required to meet really emergent situations like those
enumerated in Section 17(2). If the acquisition is intended 8
to benefit private person(s) and the provisions contained
in Section 17(1) and/or 17(4) are invoked, then scrutiny
of the justification put forward by the State should be
more rigorous in cases involving the challenge to the
acquisition of land, the pleadings should be liberally c
construed and relief should not be denied to the
petitioner by applying the technical rules of procedure
embodied in the Code of Civil Procedure and other
procedural laws. [Para 18] [390-E-H; 391-A-F]
1.3. It is clear that while dealing with challenge to the D
acquisition of land belonging to those who suffer from
handicaps of poverty, illiteracy and ignorance and do not
1have the resources to access the material relied upon by
1the functionaries of the State and its agencies for forming
ian opinion or recording a satisfaction that the urgency E
provisions contained in Section 17(1) should be resorted
..;o and/or the enquiry envisaged under Section SA should
-le dispensed with, the High Court should not literally
iapply the abstract rules of burden of proof enshrined in
•he Evidence Act. It is too much to expect from the rustic F
•illagers, who are not co.nversant with the intricacies of
.aw and functioning of the judicial system in India to first
obtain relevant information and records from the
-:oncerned State authorities and then present skillfully
Brafted petition for enforcement of their legal and/or G
onstitutional rights. The Court should also bear in mind
hat the relevant records are always in the exclusive
•ossession/domain of the authorities of the State and/or
-s agencies. Therefore, in the instant case, an assertion
y the appellants that there was no urgency in the H
366 SUPREME COURT REPORTS [2011] 8 S.C.R.
A acquisition of land; that the concerned authorities did not
apply mind to the relevant factors and records and
arbitrarily invoked the urgency provisions and thereby
denied him the minimum opportunity of hearing in terms
of Section 5-A(1) and (2), should be treated as sufficient
B for calling upon the respondents to file their response
and produce the relevant records to justify the invoking
of urgency provisions. [Para 19] [392-E-H; 393-A-B]
Authorised Officer, Thanjavur v. S Naganatha Ayyar
c (1979) 3 sec 466: 1979 (3) SCR 1121 - relied on.
Narayan Govind Gavate v. State of Maharashtra
(1977) 1 SCC 133 and Anand Singh v. State of Uttar Pradesh
(2010) 11 SCC 242: 2010 (9) SCR 133 - referred to.
o Woolmington v. Director Public Prosecutions, 1935 AC
462 - referred to.
Phipson on Evidence (11th Edn) - referred to.
2.1. The acquisition of land under Section 4 read with
E Section 17(1) and/or 17(4) of the Land Acquisition Act,
1894 has generated substantial litigation in the last 50
years. Frorri an analysis of the relevant statutory
provisions and interpretation thereof by this Court in
different cases, the following principles can be culled out
F in this regard:
(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
G 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
H (ii) The legislations which provide for compulsory
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 367
STATE OF U.P. & ORS.
acquisition of private property by the State fall in the A
category of expropriatory legislation and such
legislation must be construed strictly.
(iii) Though, In exercise of the power of eminent
domain, the Government can acquire the private B
property for public purpose, the 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 scrutinize the action/decision of the State with C
greater vigilance, care and circumspection keeping
in view the fact that the land owner is likely to
become landless and deprived of the only source of
his livelihood and/or shelter.
D
(iv) The property of a citizen cannot be acquired by
the State and/or its agencies/instrumentalities
without complying with the mandate of Sections 4,
5-A and 6 of the Act. A public purpose, however,
laudable it may be does not entitle the State to invoke E
the urgency provisions because the same have the
effect of depriving the owner of his right to property
without being heard. Only in a case of real urgency,
the State can invoke the urgency provisions and
dispense with the requirement of hearing the land F
owner or other interested persons.
(v) Section 17(1) read with Section 17(4) confers
extraordinary power upon the State to acquire private
property without complying with the mandate of
Section 5-A. These provisions can be invoked only G
when the purpose of acquisition cannot brook the
delay of even few weeks or months. Therefore, before
excluding the application of Section 5-A, the
concerned authority must be fully satisfied that time
of few weeks or months likely to be taken in H
368 SUPREME COURT REPORTS [2011] 8 S.C.R.
A conducting inquiry under Section 5·A will, in all
probability, frustrate the public purpose for which
land is proposed to be acquired.
(vi) The satisfaction of the Government on the issue
B
of urgency is subjective but is a condition precedent
to the exercise of power under Section 17(1) and the
same can be challenged on the ground that the
purpose for which the private property is sought to
be acquired is not a public purpose at all or that the
exercise of power is vitiated due to mala tides or that
c the concerned authorities did not apply 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
D exclusion of Section 5-A of the Act in terms of which
any person interested in land can file objection and
is entitled to be heard in support of his objection.
The use of word "may" in sub-section (4) of Section
17 makes it clear that it merely enables the
E Government to direct that the provisions of Section
5-A would not apply to the cases covered under sub·
section (1) or (2) of Sectio~ 17. In other words,
invoking of Section 17(4) is not a necessary
concomitant of the exercise of power under Section
F 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,
G does not justify the exercise of power by the
Government under Section 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,
H commercial, industrial or institutional areas usually
SRI RADHY SH'Y;AM (D) THROUGH LRS. & ORS. v. 369
STATE OF U.P. & ORS.
take few years. Therefore, the private property cannot A
be acq.uired for such purpose by invoking the
urgency provision contained in Section 17(1 ). In any
case, exclusion of the rule of audi a/teram partem
embodied in Section 5-A (1) and (2) is not at all
warranted in such matters. B
(ix) If land is acquired for the benefit of private
persons, the Court s_hQuld view the ~nvoking of
Section 17(1-)--and/or 17(4) with suspicion and
carefully scrutinize the relevant record before
adjudicating upon the legality of ·such acquisition. C
[Para 53] [436-E-H; 437-A-H; 438-A-H; 439-A-B]
2.2. In the instantcase, upon receipt of proposal from
the Development Authority, the State Government issued
directions to the concerned authorities to take action. for D
the acquisition of land in different villages. The comments/
certificate signed by three officers, which was submitted
in the context of Government Order dated 21.12.2006 was
accompanied by several documents including proposal
for the acquisition of land, preliminary inquiry report E
submitted by the Amin, Land Acquisition, copies of
khasra khatauni and lay out plan, 10 per cent of the
estimated compensation and a host of other documents.
In the note dated nil jointly signed by Deputy Chief
Executive Officer, Greater Noida, Collector, Gautam Budh F
Nagar and four other officers/officials, the following
factors were cited in justification of invoking the urgency
provisions: (a) The area was notified under Uttar Pradesh
Industrial Areas Development Act, 1976 for planned
industrial development; (b) If there is any delay in the G
acquisition of land then the same is likely to be
encroached and that will adversely affect the concept of
planned industrial development of the district; (c) Large
tracts of land of the nearby villages have already been
acquired and in respect of some villages, the acquisition H
370 SUPREME COURT REPORTS [2011] 8 S.C.R.
A proceedings are under progress; (d) the Development
Authority urgently requires land for overall development,
i.e. construction of roads, laying of sewerages, providing
electricity, etc. in the area; (e) the development scheme
has been duly approved by the State Government but the
B work has been stalled due to non-acquisition of land; (f)
Numerous reputed and leading industrial units of the
country want to invest in the State of Uttar Pradesh and,
therefore, it is extremely urgent and necessary that land
is acquired immediately; (g) If land is not made available
c to the incoming leading and reputed industrial concerns
of the country, then they will definitely establish their
units in other States and if this happens, then it will
adversely affect employment opportunities in the State
and will also go against the investment policy of the
Government; (h) If written/oral objections are invited from
0
the farmers and are scrutinized, then it will take
unprecedented long time and disposal thereof will
hamper planned development of the area and (i) as per
the provisions of the Act, there shall be at least one year's
time gap between publication of the notifications under
E Sections 4 and 17 and Section 6. In the considered view
of this Court, the above noted factors do not furnish
legally acceptable justification for the exercise of power
by the State Government under Section 17(1) because
the acquisition is primarily meant to cater private interest
F in the name of industrial development of the district. It is
neither the pleaded case of the respondents nor any
evidence has been produced before the Court to show
that the State Government and/or agencies/
instrumentalities of the State are intending to establish
G industrial units on the acquired land either by itself or
through its agencies/instrumentalities. The respondents
have justified the invoking of urgency provisions by
making assertions, which are usually made in such cases
by the executive authorities i.e. the inflow of funds in the
H State in the form of investment by private entrepreneurs
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 371
. STATE OF U.P. & ORS .
. and availability of larger employment opportunities to the A
people of the area. However , this Court does not find any
plausible reason to accept this tailor-made justification for
approving the impugned action which has resulted in
depriving the. appellants' of their constitutional right to
property. Even if planned industrial development of the B
district is treated as public purpose within the meaning
of Section 4, there was no urgency which could justify
the exercise of power by the State Government under
Section 17(1) and 17(4). The objective of industrial
development of an area cannot be achieved by pressing c
some buttons on computer screen. It needs lot of
deliberations and planning keeping in view various
scientific and technical parameters and environmental
concerns. The private entrepreneurs, who are desirous
of making investment in the State, take their own time in
0
setting up the industrial units. Usually, the State
Government and its agencies/ instrumentalities would
give them two to three years' to put up their factories,
establishments etc. Therefore, time required for ensuring
compliance of the provisions contained in Section 5-A E
cannot, by any stretch of imagination, be portrayed as
delay which will frustrate the purpose of acquisition. In
this context, it is apposite to note that the time limit for
filing objection under Section 5-A (1) is only 30 days from
the date of publication of the notification under Section
4(1). Of course, in terms of sub-section (2), the Collector F
is required to give opportunity of hearing to the objector
and submit report to the Government after making such
further inquiry, as he thinks necessary. This procedure
is likely to consume some time, but as has been well
said, "Principles of natural justice are to some minds G
burdensome but this price-a small price indeed-has to be
paid if we desire a society governed by the rule of law."
[Paras 54, 55] [439-D-H; 440-A-H; 441-A-H; 441-A-H; 442-
A-B]
H
372 SUPREME COURT REPORTS (2011] 8 S.C.R.
A 2.3. In this case, the Development Authority sent
proposal some time in 2006. The authorities up to the level
of the Commissioner completed the exercise of survey
and preparation of documents by the end of December,
2006 but it took one year and almost three months to the
B State Government to issue notification under Section 4
·read with Section 17(1) and 17(4). If this much time was
consumed between the receipt of proposal for the
acquisition of land and issue of notification, it is not
possible to accept the argument that four to five weeks
c within which the objections could be filed under sub-
section (1) of Section 5-A and the time spent by the
Collector in making inquiry under sub-section (2) of
Section 5-A would have defeated the object of
acquisition. [Para 56] [442-C-E]
D 2.4. The apprehension of the respondents that delay
in the acquisition of land will lead to enormous
encroachment is totally unfounded. It is beyond the
comprehension of any person of ordinary prudence to
think that the land owners would encroach their own
E land with a view to frustrate the concept of planned
industrial development of the district. The perception of
the respondents that there should be atleast one year's
time gap between the issue of notifications under
Sections 4 and 6 is clearly misconceived. The time limit
F of one year specified in clause (ii) of the proviso to
Section 6(1) is the outer limit for issue of declaration. This
necessarily means that the State Government can
complete the exercise under Sections 5-A and 6 in a
shorter period. There was no real and substantive
G urgency which could justify invoking of the urgency
provision under Section 17(1) and in any case, there was
no warrant to exclude the application of Section 5-A
which, as mentioned above, represent the statutory
embodiment of the rule of audi a/teram partem. [Paras 57,
H 58 and 59] [442-F-H; 443-A-B]
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 373
STATE OF U.P. & ORS.
2.5. There is also merit in the appellants' plea that the A
acquisition of their land is vitiated due to violation of the
doctrine of equality enshrined in Article 14 of the
Constitution. A reading of the survey report shows that
the committee constituted by the State Government had
recommended release of land measuring 18.9725 8
hectares. Many parcels of land were released from
acquisition because the land owners had already raised
constructions and were using the same as dwelling
units. A large chunk of land measuring 4.3840 hectares
was not acquired apparently because the same belong c
to an ex-member of the legislative assembly. The
appellants had also raised constructions on their land
and were using the same for residential and agricultural
purposes. Why their land was not left out from acquisition
has not been explained in the counter affidavit filed by 0
the respondents. The High Court should have treated this
as sufficient for recording a finding that the respondents
had adopted the policy of pick and choose in acquiring
some parcels of land and this amounted to violation of
Article 14 of the Constitution. [Para 60] [443-C-F]
E
2.6. The argument of the respondents that the Court
may not annul the impugned acquisition because land of
other villages had already been acquired and other land
owners have not come forward to challenge th~
acquisition of their land cannot be entertained and the F
Court cannot refuse to protect the legal and
constitutional rights of the appellants merely because the
others have not come forward to challenge the illegitimate
exercise of power by the State Government. It is quite
possible that others may have, due to sheer poverty, G
ignorance and similar handicaps not been able to avail
legal remedies for protection of their rights, but that
cannot be made basis to deny what is due to the
appellants. [Para 61] [443-G-H; 444-A-B]
H
374 SUPREME COURT REPORTS [2011] 8 S.C.R.
A Dwarkadas Shrinivas v. Sholapur Spinning and Weaving
Co. Ltd.,AIR (1954) SC 119: 1954 SCR 674 ; Chiranjit Lal
Chowdhuri v.Union of India AIR (1951) SC 4: 1950 SCR 869;
Jilubhai NanbhaiKhachar v. State of Gujarat (1995) Supp.
(1) SCC 596; DLF Qutab Enclave Complex Educational
B Charitable Trust v. State of Haryana (2003) 5 SCC 622: 2003
(2) SCR 1; State of Maharashtra v. B.E. Bi/limoria (2003) 7
SCC 336: 2003 (2) Suppl. SCR 603; Dev Sharan v. State
of U.P. Civil Appeal No.2334 of 2011 decided on 7.3.2011
- relied on.
c Raja Anand Brahma Shah v. State of Uttar Pradesh
(1967) 1 SCR 373:1967 SCR 373; Om Prakash v. State of
U.P. (1998) 6 SCC 1; Union of India v. Krishan Lal Arneja
(2004) 8 SCC 453:2004 (1) Suppl. SCR 801; Esso Fabs
Private Limited v. State of Haryana (2009) 2 SCC 377; Babu
D Ram v. State of Haryana (2009) 10 SCC 115: 2009 (14) SCR
1111; Anand Singh v. State of Uttar Pradesh (2010) 11 SCC
242: 2010 (9) SCR 133; State of U.P. v. Pista Devi (1986) 4
SCC; Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC
84: 1993 (1) SCR 269; Chameli Singh v. State of U.P. (1996)
E 2 SCC 549; First Land Acquisition Collector v. Nirodhi
Prakash Gangoli (2002) 4 SCC 160:2002 (2) SCR 326; Tika
Ram v. State of Uttar Pradesh (2009)10 SCC 689: 2009 (14)
SCR 905; Nand Kishore Gupta v. State of Uttar Pradesh
(2010) 10 SCC 282: 2010 (11 ) SCR 356; State of Punjab v.
F Gurdial Singh (1980) 2 SCC 471: 1980 (1 ) SCR 1071;
Union of India v. Mukesh Hans (2004) 8 SCC 14; Shyam
Nandan Prasad v. State of Bihar (1993) 4 SCC 255:1993 (1)
Suppl. SCR 533; Nandeshwar Prasad v. The State of Uttar
Pradesh (1964) 3 SCR 425; A.P. Sareen v. State of U.P.
G (1997) 9 SCC 3591997 (1) SCR 210; Ghaziabad
Development Authority v. Jan Kalyan Samiti (1996) 2 SCC
365: 1996 (1) SCR 307; Jai Narain v. Union of India (1996)
1 SCC 9: 1995 ( 5 ) Suppl. SCR 769; Munshi Singh v. Union
of India (1973) 2 SCC 337: 1973 (1) SCR 973; Hindustan
H Petroleum Corporation Limited v. Darius Shapur Chenai
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 375
STATE OF U.P. & ORS.
(2005) 7 SCC 627: 2005 (3) Suppl. SCR 388; Swadeshi A
Cotton Mills v. Union of India (1981) 1 SCC 664: 1981 (2)
SCR 533; A.K. Kraipak v. Union of India (1969) 2 SCC 262:
1970 (1) SCR 457; Mohinder Singh Gill v. Chief Election
Commissioner (1978) 1 SCC 405: 1978 (2) SCR 272;
Maneka Gandhi v. Union of India (1978) 1 SCC 248: 1978 ( B
2 ) SCR 621; State of Orissa v Dr. Bina Pani Dei 1967 (2)
SCR 625:1967 SCR 625; Sayeedur Rehman v. State of
Bihar (1973) 3 SCC 333: 1973 ( 2 ) SCR 1043 - referred
to.
Cooper v. Wandsworth Board of Works (1863) 143 ER C
414; Board of Education v. Rice (1911 AC 179 at 182);
O'Reilly v. Mackman 1983 2 AC 237; Lloyd v. Mcmahon 1987
AC 625 and Ridge v. Baldwin 1964 AC 40; King Emperor v.
Shibnath Banerjee [Criminal Appeal No.110 of 1966
decided on July 27, 1966]; Jaichand Lal Sethia v. State of D
West Bengal (1958) 1 WLR 546; Estate and Trust Agencies
Ltd. v. Singapore Improvement Trust (1914) 1 Ch 438; Ross
· Clunis v. Papadopoul/os 44 1A 11 and R. v. Australian
Stevedoring Industry Board 39 1A 133 - referred to.
E
3. Respondent No.1 is directed to pay cost of
Rs.5,00,0001- to the appellants for forcing unwarranted
litigation on them. However, the respondents shall be free
to proceed from the stage of Section 4 notification and
take appropriate action after complying with Section 5- F
A(1) and (2) of the Act. If the appellants feel aggrieved by
the fresh exercise undertaken by the State Government
then they shall be free to avail appropriate legal remedy.
[Para 62] [444-C-D]
Case Law Reference: G
1979 (3) SCR 1121 Relied on Para 18
(1977) 1 sec 133 Referred to Para 20
1935 AC 462 Referred to Para 20 H
376 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 2010 (9) SCR 133 Referred to Para 21
(1863) 143 ER 414 Referred to Para 24
(1911 AC 179 at 182) Referred to Para 25
1964 AC 40 Referred to Para 26
B
1983 2 AC 237 Referred to Para 26
1987 AC 625 Referred to Para 26
1973 (2) SCR 1043 Referred to Para 28
c
1978 (2) SCR 272 Referred to Para 29
1978 ( 2) SCR 621 Referred to Para 30
1981 (2) SCR 533 Referred to Para 31
D 1970 (1) SCR 457 Referred to Para·31
1967 (2) SCR 625 Referred to Para 31
1973 (1) SCR 973 Referred to Para 32
E 1980 (1) SCR 1071 Referred to Para 33
1993 (1) Suppl. SCR 533 Referred to Para 34
(2004) 8 sec 14 Referred to Para 35
2005 (3) Suppl. SCR 388 Referred to Para 35
F
(1964) 3 SCR 425 Referred to Para 36
(1967) 1 SCR 373 Referred to Para 37
(1958) 1 WLR 546 Referred to Para 37
G Referred to Para 37
(1914) 1 Ch 438
44 1A 117 Referred to Para 37
39 1A 133 Referred to Para 37
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 377
STATE OF U.P. & ORS.
1993 (1) SCR 269 Referred to Para 39 A
1997 ( 1) SCR 210 Referred to Para 39
1996 (1) SCR 307 Referred to Para 39
1995 (5) Suppl. SCR 769 Referred to Para 39
B
2004 (1) Suppl. SCR 801 Referred to Para 41
2009 (14) SCR 1111 Referred to Para 43
2002 (2) SCR 326 Referred to Para 49
2009 (14) SCR 905 Referred to Para 49
c
2010 (11) SCR 356 Referred to Para 51
1954 SCR 674 Relied on Para 53
1950 SCR 869 Relied on Para 53 D
(1995) Supp. (1) sec 596 Relied.on Para 53
. 2003 (2) SCR 1 Relied on Para 53
2003 (2) Suppl. SCR 603 Relied on Para 53 E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3261 of 2011.
From the Judgment and Order dated 15.12.2008 of the
High Court of Judicature at Allahabad in CMWP No. 64127 of F
2008.
N.P. Singh, Advocate for the Appellants.
Dinesh Dwivedi, Sanjay Visen, Ravindra Kumar, Shashank
Kumar Lal and Gunnam Venateswara · Rao for the G
Respondents.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
H
378 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 2. This appeal is directed against order dated 15.12.2008
passed by the Division Bench of the Allahabad High Court
whereby the writ petition filed by the appellants questioning the
acquisition of their land for planned industrial development of
Distriet Gautam Budh Nagar through Greater f'.-IOIDA Industrial
B Development Authority (hereinafter referred to as the,
"Development Authority") by invoking Section 17(1) and 17(4)
of the Land Acquisition Act, 1894 (for short, "the Act"), as
amended by Uttar Pradesh Act No.8 of 1974, was dismissed.
C 3. Upon receipt of proposal from the Development
Authority for acquisition of 205.0288 hectares land of village
Makora, Pargana Dankaur, Tehsil and District Gautam Budh
Nagar, which was approved by the State Government,
notification dated 12.3.2008 was issued undar Section 4(1)
D read with Section 17(1) and 17(4) of the Act. The relevant
portions of the notification are extracted below:
"Under Sub-Section (1) of Section 4 of the Land
Acquisition Act 1894 (Act no.1 of 1894), the Governor is
pleased to notify for general information that the land
E mentioned in the scheduled below, is needed for public
purpose, namely planned industrial development in District
Gautam Budh Nagar through Greater Noida Industrial
Development Authority.
2. The Governor being of the opinion that the provisions
F
of sub-section 1 of Section 17 of the said Act, are
applicable to said land inasmuch as the said land is
urgently required, for the planned industrial development
in District Gautam Budh Nagar through Greater Noida
Industrial Development Authority and it is as well
G
necessary to eliminate the delay likely to be caused by an
enquiry under Section 5A of the said Act, the Governor is
further pleased to direct under sub-section 4 of Section 17
of the said Act that the provisions of Section 5A of the said
Act, shall not apply."
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 379
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
4. Since the appellants' land was also included in the A
notification, they made a representation to the Chairman-cum-
Chief Executive Officer of the Development Authority
(Respondent No.4) with .copies to the Chief Minister, Principal
Secretary, Housing and Urban Development, U.P., the District
Magistrate and the Special Officer, Land Acquisition, Gautam B
Buddh Nagar with the request that their land comprised in
Khasra No.394 may not be acquired because they had raised
construction 30-35 years ago and were using the property for
abadi/habitation. The concerned functionaries/authorities did
not pay heed to the request of the appellants and the State c
Government issued notification dated 19.11.2008 under
Section 6 read with Section 9 of the Act.
5. The appellants challenged the acquisition of their land
on several grounds including the following:
D
(i) That the land cannot be used for industrial purposes
because in the draft Master Plan of Greater NOIDA
(2021), the same is shown as part of residential zone.
(ii) That they had already constructed dwelling houses and E
as per the policy of the State Government, the residential
structures are exempted from acquisition.
(iii) That the State Government arbitrarily invoked Section
17(1) read with Section 17(4) of the Act and deprived them
of their valuable right to raise objections under Section 5- F
A.
(iv) The acquisition of land is vitiated by arbitrariness, mala
tides and violation of Article 14 of the Constitution
inasmuch as lands of the Member of Legislative Assembly G
and other influential persons were left out from acquisition
despite the fact that they were not in abadi, but they were
· not given similar treatment despite the fact that their land
was part of abadi and they had constructed dwelling units.
H
380 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 6. In support of their challenge to the invoking of Section
17(1) and (4), the appellants made detailed averments in
paragraphs 11 and 16 and raised specific grounds A and F,
which are extracted below:
"11. That as per the scheme of the said Act, each and
B
every section from sections 4 to 17 has an independent
role to play though there is an element of interaction
between them. Section 5-A, has a very important role to
play in the acquisition proceedings and it is mandatory of
the part of the government to give hearing to the person
c interested in the land whose land is sought to be acquired.
It is relevant to point out that the acquisition proceedings
under the Act, are based on the principal of eminent
domain and the only protection given to the person whose
land is sought to be acquired is an opportunity under
D Section 5-A of the Act to convince the enquiring authority
that the purpose for which the land is sought to be acquired
is in fact is not a public purpose and is only purported to
be one in the guise of a public purpose.
E It is relevant to mention here that excluding the
enquiry under Section 5-A can only be an exception where
the urgency cannot brook any delay. The enquiry provides
an opportunity to the owner of land to convince the
authorities concerned that the land in question is not
F suitable for purpose for which it is sought to be acquired
or the same sought to be acquired for the collateral
purposes. It is pertinent to mention here that the
respondents No. 1 & 2 without the application of mind
dispensed with the enquiry on the ground of urgency
invoking the power conferred by Section 17 (1) or (2) of
G
the Act. Further, the respondent No. 1 & 2 without ·
application of mind did not considered the survey report
of the abadi of the vi/lage Makaura where the entire land
is being used for the purpose of residence and grazing
of cattle's in Khasra No. 394. Further, the petitioners were
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 381
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
surprised to find that their land have not been included A
in the Abadi irrespective the same is in use for habitable
and keeping the cattle and other uses. The petitioners
have constructed their houses and using the same for
their residence and keep their cattle's and agricultural
produce . .The survey report clearly shows that the B
impugned Khasra No. 394 is in use for residence. The
report in respect of the land in question falling in Khasra
No. 394 given by the respondent No. 4 vide
communication dated 26th March, 2007 is annexed as
Annexure 6. C
16. That the said notification under Section 4 of the Act
issued by the respondent No. 1 and 2 is without
application of mind and there was no urgency in the
acquisition of land, for the planned industrial
development, as the land, as per the master plan - 2021 D
the land of the village Makauca is reserved for "residentiar
of which the respondent No. 2invoked Section 17 (1) and
subsection 4 of the Act by dispensing with an enquiry
under Section 5A of the Act. The said action on the part
of the respondents are un-warranted and is in gross E
violation of Article 14,19, 21and300A of the constitution.
The such illegal act on the parl of the respondents show
ma/a fide and their oblique motive to deprive the owners
from their houses in order to fulfill their political
obligations/promise to the private builders by taking the F
shelter of section 17 of the Act by dispensing with the
enquiry under Section 5-A of the Act as well as
overlooked purpose as stipulated in the Master Plan
2021 which is any way do not require any urgent attention.
G
A. That the whole acquisition proceedings are void,
unconstitutional, tainted with mala fide, abuse of authority
and power, non-application of mind, and as such, liable to
be quashed as violative of Articles 14, 19 and 300-A of the
Constitution of India.
H
382 SUPREME COURT REPORTS [2011] 8 S.C.R.
A F. That the purpose stated in the notification under Section
4 and declaration under section 6 by invoking section 17
is presently non-existent and thus the notification is bad in
law. There is no urgency for the invocation when the land
is to be acquired for planned development for the purpose
B of setting residential colony. The impugned notification is
without any authority of law and volatile of Article 300-A of
the Constitution of India, which limits the power to acquire
land to the authority under the Land Acquisition Act.
Therefore, the notification in question is bad in law."
c (emphasis supplied)
7. The High Court negatived the appellants' challenge at
the threshold mainly on the ground that the averments contained
in the petition were not supported by a proper affidavit. This is
D evident from the following portions of the impugned order:
"Here the petitioners neither have pleaded that there exist
no material before the State Government to come to the
conclusion that the enquiry under Section 5-A should be
dispensed with by invoking Section 17(4) of the Act nor
E
the learned counsel for the petitioners could place before
us any such averment in the writ petition. Though, in para-
11 of the writ petition, an averment has been made that
the respondents no. 1 and 2 without the application of mind
dispensed with the enquiry on the ground of urgency
F invoking the power conferred by Section 17(1) or (2) of the
Act, but in the affidavit, the said paragraph has been sworn
on the basis of perusal of record. Similarly in para 16 of
the writ petition, the only averment contained therein is as
under:
G
"16. That the said notification under Section 4 of the Act
issued by the respondent No.1 and 2 is without application
of mind and there was no urgency in the acquisition of
land, for the planned industrial development, as the land,
I
'H as per the master plan-2021 th_e land of the village
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 383
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
Makaura is reserved for "residential" of which the A
respondent No.2 invoked Section 17(1) and sub-section
4 of the Act by dispensing with an enquiry under Section
5-A of the Act. The said action on the part of the
respondents are un-warranted and is in gross violation of
Article 14,19,21 and 300A of the Constitution. The such B
illegal act on the part of the respondents show mala fide
and their oblique motive to deprive the owners from their
houses in order to fulfill their political obligations/ promise
to the private builders by taking the shelter of Section 17
of the Act by dispensing with the enquiry under Section 5- c
A of the Act as well as overlooked purpose as stipulated
in the Master Plan 2021 which is any way do not require
any urgent attention."
However, in the affidavit, this para has not been sworn at
all and in any case with respect to dispensation of enquiry D
under Section 5-A by invoking Section 17(4) of the Act
nothing has been said except that the exercise of power
is violative of Articles 14, 19, 21 and 300-A of the
Constitution.
E
We, therefore, do not find any occasion even to call upon
the respondents to file a counter affidavit placing on record,
the material if any for exercising power under Section 17(1)
and (4) of the Act in the absence of any relevant pleading
or material and the question of requiring the respondents F
to produce the original record in this regard also does not
arise."
8. The High Court distinguished the judgment of this Court
in Om Prakash v. State of U.P. (1998) 6 SCC 1, albeit without
assigning any cogent reason, relied upon the judgments of the G
Division Benches in Kshama Sahkari Avas Samiti Ltd. v. State
of U.P. 2007 (1) AWC 327, Jasraj Singh v. State of U.P. 2008
(8) ADJ 329 and Jagriti Sahkari Avas Samiti Ltd. Ghaziabad
v. State of U.P. 2008 (9) ADJ 43 and held that the decision of
the Government to invoke Section 17(1) cannot be subjected H
384 SUPREME COURT REPORTS [2011] 8 S.C.R.
A to judicial review. The High Court also rejected the appellants'
plea that in terms of the policy framed by the State Government,
the land covered by abadi cannot be acquired by observing that
no material has been placed on record to show that the policy
framed in 1991 was still continuing. To buttress this conclusion,
s the High Court relied upon the judgment of this Court in Anand
Buttons Limited v. State of Haryana (2005) 9 SCC 164.
9. By an order dated 29.10.2010, this Court, after taking
cognizance of the fact that the respondents did not get
C opportunity to file reply to the writ petition, directed them to do
so. Thereupon, Shri Harnam Singh, Additional District
Magistrate (Land Acquisition)/Officer on Special Duty (Land
Acquisition) NOIDA, District Gautam Budh Nagar filed counter
affidavit on behalf of respondent Nos.1 to 3. In paragraph 10
of his affidavit, Shri Harnam Singh has attempted to justify
D invoking of the urgency clause by making the following
assertions:
"That in invoking the urgency clause the State Government
has taken into consideration the following factors:-
E
(i) Greater Noida Industrial Development Authority was
constituted under the U.P. Industrial Area Development
Act, 1976 to promote Industrial and Urban Development
in the Area. The acquired land was urgently required by
the Development Authority for planned Industrial
F Development of the area.
(ii) That the land in the adjoining villages were already
acquired by the Greater Noida Industrial Development
Authority. Thus, the acquired land was urgently required for
G continuity of infrastructure services and planned Industrial
Development of the Area. If, the proposed land was not
acquired immediately and delay in this regard would lead
to encroachments and would adversely affect the Planned
Industrial Development of the Area.
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 385
STATE OF U.P. & ORS. [G.S. SINGHVI, J.)
(iii) That the acquired land was required for overall A
development i.e. construction of roads, laying of
sewerages, providing electricity etc. in the area and the
said scheme has been duly approved by the state
government.
B
(iv) That the acquired land consists of 246 plots numbers
with 392 recorded tenure holders. If objections are to be
invited and hearing be given to such large number of
tenure holders, it would take long time to dispose of the
objections thereof and would hamper the planned C
development of the area.
(v) That reputed industrial houses who are interested in
investing in the State and in case the land is not readily
available, they might move to other states and such a move
would adversely affect the employment opportunities in the D
State." ·
Shri Harnam Singh also controverted the appellants' plea
for exemption by stating that the constructions made by them
on land of Khasra Nos.101 and 399 were insignificant and the E
construction raised on Khasra No.394 is not part of village
Abadi.
10. Shri Manoj Kumar Singh, Tehsildar filed a separate
affidavit on behalf of Respondent No.4 and justified the invoking
of urgency clause by asserting that large tracts of land were F
acquired for industrial development of the district. According
to him, as per the policy of industrial development of the State
Government, the land is required to be allotted to industrial
houses.
G
11. On 8.11.2010, Shri Dinesh Dwivedi learned senior
counsel for the State made a request for permission to file
additional affidavit with some documents. His request was
accepted. Thereafter, the respondents filed an affidavit of Shri
Sushil Kumar Chaubey, Tehsildar, Land Acquisition, Gautam H
386 SUPREME COURT REPORTS (2011] 8 S.C.R.
A Budh Nagar along with eight documents of which seven have
been collectively marked as Annexure A-1. The first of the
documents marked· Annexure A-1 is copy of letter dated
25.2.2008.sent by the Commissioner and Director, Directorate
of Land Acquisition, Revenue Board, U.P. to the Special
s Secretary, Industrial Development on the subject of issuance
of notification under Sections 4 and 17 of the Act for acquisition
of lands measuring 205.0288 hectares of village Makora. The
second document is an undated letter signed by Deputy Chief
Executive Officer, Greater Noida, Collector, Gautam Budh
c Nagar and four other officers/officials. The next document has
been described as comments/certificate on the issues raised
in Government Order No.5261177-4-06-251 N/06 dated
21.12.2006 with regard to proposal for acquisition of 205.0288
hectares lands in village Makora. This document is
D accompanied by seven forms containing various particulars.
The third document is communication dated 29.10.2007 sent
by the Commissioner, Meerut Division, Meerut to the District
Magistrate, Gautam Budh Nagar conveying the consent of the
Divisional Land Utility Committee for the acquisition of lands
of five villages including Makora. This letter is accompanied by
E minutes of the meeting of the Divisional Land Utility Committee
held on 29.10.2007. The fifth document is form No.43A-1. The
sixth document is communication dated 22.2.2008 sent by
Collector, Land Acquisition/Special Land Acquisition Officer,
Greater Noida. The last document which forms part of Annexure
F A-1 is form No.16 showing the list of properties having
constructions etc. Annexure A-2 is copy of letter dated
31.10.2008 sent by the Director, Directorate of Land
Acquisition to the Special Secretary, Industrial Development.
G 12. Shri N.P.Singh, learned counsel for the appellants
argued that the impugned order is liable to be set aside
because the High Court failed to consider the issues raised in
the writ petition in a correct perspective. Learned counsel
submitted that the appellants had specifically pleaded that there
H was no valid ground to invoke the urgency clause contained in
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 387
STATE OF U.P. & ORS. [G.S~ SINGHVI, J.]
Section 17(1) and to dispense with the application of Section A
5-A but the High Court did not even call upon the respondents
to file counter affidavit and brushed aside the challenge to the
acquisition proceeding on a wholly untenable premise that the
affidavit filed in support of the writ petition was laconic. Learned
counsel further argued that. the purpose for which land was B
·acquired i.e. planned industrial development of the district did
not justify invoking of the urgency provisions and denial of
opportunity to the appellants and other land owners to file
objections under Section 5-A (1) and to be heard by the
Collector in terms of the mandate of Section 5-A (2). In support c
of his argument, learned counsel relied upon the judgments in
Narayan Govind Gavate v. State of Maharashtra (1977) 1
SCC 133 and Esso Fabs Private Limited v. State of Haryana
(2009) 2 sec 377. Another argument of the learned counsel
is that the High Court misdirected itself in.summarily dismissing
0
the writ petition ignoring the substantive plea of discrimination
raised by the appellants.
13. Shri Dinesh Dwivedi, learned senior counsel appearing
for the respondents urged that this Court should not nullify the
acquisition at the instance of the appellants because the E
pleadings filed before the High Court were not supported by
proper affid~vit. Shri Dwivedi argued that ttie High Court was
justified in non-suiting the appellants because they did not
produce any evidence to effectively challenge the invoking of
urgency provision contained in Section 17(1). Learned senior F
counsel emphasized that the satisfaction envisaged in Section
17(1) is purely subjective and the Court cannot review the
decision taken by the State Government to invoke the urgency
clause. He submitted that planned industrial development of
District Gautam Budh Nagar is being undertaken in consonance G
with the policy decision taken by the State Government and the
appellants cannot be heard to make a grievance· against the'
acquisition of their land because they will be duly compensated.
In support of his argument, Shri Dwivedi relied upon the
judgment of this Court in State of U.P. v. Pista Devi (1986) 4 H
388 SUPREME COURT REPORTS [2011] 8 S.C.R.
A SCC 251 and Chameli Singh v. State of U.P. (1996) 2 SCC
549. Learned senior counsel further submitted that the
appellants' land cannot be released from acquisition because
that will result in frustrating the objective of planned industrial
development of the district. On the issue of discrimination, Shri
B Dwivedi argued that even if the land belonging to some
persons has been illegally left out from acquisition, the
appellants are not entitled to a direction that their land should
also be released.
14. The first issue which needs to be addressed is whether
C the High Court was justified in non-suiting the appellants on the
ground that they had not raised a specific plea supported by a
proper affidavit to question the decision taken by the State
Government to invoke Section 17(1) and 17(4) of the Act. We
shall also consider an ancillary issue as to whether the
D appellants had succeeded in prima facie proving that there was
r:io justification to invoke the urgency clause and to dispense
with the inquiry envisaged under Section 5-A.
· 15. At the outset, we record our disapproval of the casual
E manner in which the High Court disposed of the writ petition
without even calling upon the respondents to file counter
affidavit and produce the relevant records. A reading of the
averments contained in paragraphs 11 and 16 and grounds A
and F of the writ petition, which have been extracted
F hereinabove coupled with the appellants' assertion that the
acquisition of their land was vitiated due to discrimination
inasmuch as land belonging to influential persons had been left
out from acquisition, but their land was acquired in total
disregard of the policy of the State Government to leave out
G land on which dwelling units had already been constructed,
show that they had succeeded in making out a strong case for
deeper examination of the issues raised in the writ petition and
the High Court committed serious error by summarily non-
suiting them.
H 16. The history of land acquisition legislations shows that
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 389
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
in Eighteenth Century, Bengal Regulation I of 1824, Act I of A
1850, Act VI of 1857, Act XXll of 1863, Act X of 1870, Bombay
Act No. XXVlll of 1839, Bombay Act No. XVII of 1850, Madras
Act No. XX of 1852 and Madras Act No.1 of 1854 were enacted
to facilitate the acquisition of land arid other immovable
properties for roads, canals, and other public purposes by B
paying the amount to be determined by the arbitrators. In 1870,
the Land Acquisition Act was enacted to provide for proper
valuation of the acquired land. That Act envisaged that if the
person having interest in land is not agreeable to part with
possession by accepting the amount offered to him, then the C
Collector may make a reference to the Civil Court. The 1870
Act also envisaged appointment of assessors to assist the Civil
Court. If the Court and the assessor did not agree on the amount
then an appeal could be filed in the High Court. This mechanism
proved ineffective because lot of time was consumed in o
litigation. With a view to overcome this problem, the legislature
enacted the Act on the line of the English Lands Clauses
Consolidation Act, 1845. However, the land owners or persons
having interest in land did not have any say in the acquisition
process either under pre-1984 legislations or the 1984 Act (un- E
amended). They could raise objection only qua the amount of
compensation and matters connected therewith. The absence
of opportunity to raise objection against the acquisition of land
was resented by those who were deprived of their land. To
redress this grievance, Section 5A was inserted in the Act by F
amending Act No.38 of 1923. The statement of Objects and
Reasons contained in Bill No.29 of 1923, which led to
enactment of the amending Act read as under:
"The Land Acquisition Act I of 1894 does not provide that
persons having an interest in land which it is proposed to G
acquire, shall have the right of objecting to such
acquisition; nor is Government bound to enquire into and
consider any objections that may reach them. The object
of this Bill is to provide that a Local Government shall not
declare, under Section 6 of the Act, that any land is needed H
390 SUPREME COURT REPORTS (2011) 8 S.C.R.
A for a public purpose unless time has been allowed after
the notification under Section 4 for persons interested in
the land to put in objections and for such objections to be
considered by the Local Government."
17. The Act, which was enacted more than 116 years ago
8
for facilitating the acquisition of land and other immovable
properties for construction of roads, canals, railways etc., has
been frequently used in the post independence era for different
public purposes like laying of roads, construction of bridges,
C dams and buildings of various public establishments/institutions,
planned development of urban areas, providing of houses to
different sections of the society and for developing residential
colonies/sectors. However, in the recent years, the country has
witnessed a new phenomena. Large tracts of land have been
acquired in rural parts of the country in the name of development
D and transferred to private entrepreneurs, who have utilized the
same for construction of multi-storied complexes, commercial
centers and for setting up industrial units. Similarly, large scale
acquisitions have been made on behalf of the companies by
invoking the provisions contained in Part VII of the Act.
E
18. The resultant effect of these acquisitions is that the land
owners, who were doing agricultural operations and other
ancillary activities in rural areas, have been deprived of the only
source of their livelihood. Majority of them do not have any idea
F about their constitutional and legal rights, which can be enforced
by availing the constitutional remedies under Articles 32 and
226 of the Constitution. They reconcile with deprivation of land
by accepting the amount of compensation offered by the
Government and by thinking that it is their fate and destiny
determined by God. Even those who get semblance of
G education are neither conversant with the functioning of the
State apparatus nor they can access the records prepared by
the concerned authorities as a prelude to the acquisition of land
by invoking Section 4 with or without the aid of Section 17(1)
and/or 17(4). Therefore, while examining the land owner's
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 391
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
challenge to the acquisition of land in a petition filed urider A
Article 226 of the Constitution, the High Court should not adopt
a pedantic approach, as has been done in the present case,
and decide the matter keeping in view the constitutional goals
of social and economic justice and the fact that even though
the right to property is no longer a fundamental right, the same B
continues to be an important constitutional right and in terms
of Article 300-A, no person can be deprived of his property
except by authority of law. In cases where the acquisition is
made by invoking Section 4 read with Section 17(1) and/or
17(4), the High Court should insist upon filing of reply affidavit c
by the respondents and production of the relevant records and
carefully scrutinize the same before pronouncing upon legality
of the impugned notification/action because a negative result
without examining the relevant records to find out whether the
competent authority had formed a bona fide opinion on the
0
issue of invoking the urgency provision and excluding the
application of Section 5-A ls likely to make the land owner a
landless poor and force him to migrate to the nearby city only
to live in a slum. A departure from this rule should be made only
when land is required to meet really emergent situations like
those enumerated in Section 17(2). If the acquisition is intended E
to benefit private person(s) and the provisions contained in
Section 17(1) and/or 17(4) are invoked, then scrutiny of the
justification put forward by the State should be more rigorous
in cases involving the challenge to the acquisition of land, the
pleadings should be liberally construed and relief should not be F
denied to the petitioner by applying the technical rules of
procedure embodied in the Code of Civil Procedure and other
procedural laws. In this context it will be profitable to notice the
observations made by this Court in Authorised Officer,
Thanjavur v. S Naganatha Ayyar (19~) 3 SCC 466, which G
are as under:
"...... It is true that Judges are constitutional invigilators and
statutory interpreters; but they are also responsive .and
responsible to Part IV of the Constitution being one of the H
392 SUPREME COURT REPORTS [2011) 8 S.C.R.
A trinity of the nation's appointed instrumentalities in the
transformation of the socio-economic order. The judiciary,
in its sphere, shares the revolutionary purpose of the
constitutional order, and when called upon to decode
social legislation must be animated by a goal-oriented
B approach. This is part of the dynamics of statutory
interpretation in the developing countries so that courts are
not converted into rescue shelters for those who seek to
defeat agrarian justice by cute transactions of many
manifestations now so familiar in the country and illustrated
c by the several cases under appeal. This caveat has
become necessary because the judiciary is not a mere
umpire, as some assume, but an activist catalyst in the
constitutional scheme."
19. We may now advert to the ancillary question whether
D the High Court was justified in non suiting the appellants on the
ground that they failed to discharge the primary burden of
proving that the State Government had invoked Section 17(1)
and 17(4) without application of mind to the relevant
considerations. In this context, it is apposite to observe that
E while dealing with challenge to the acquisition of land belonging
to those who suffer from handicaps of poverty, illiteracy and
ignorance and do not have the resources to access the material
relied upon by the functionaries of the State and its agencies
for forming an opinion or recording a satisfaction that the
F urgency provisions contained in Section 17(1) should be
resorted to and/or the enquiry envisaged under Section SA
should be dispensed with, the High Court should not literally
apply the abstract rules of burden of proof enshrined in the
Evidence Act. It is too much to expect from the rustic villagers,
G who are not conversant with the intricacies of law and
functioning of the judicial system in our country to first obtain
relevant information and records from the concerned State
authorities and then presen.t skillfully drafted petition for
enforcement of his legal and/or constitutional rights. The Court
H should also bear in mind that the relevant records are always
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 393
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
in the exclusive possession/domain of the authorities of the A
State and/or its agencies. Therefore, an assertion by the
appellants that there was no urgency in the acquisition of land;
that the concerned authorities did not apply mind to the relevant
factors and records and arbitrarily invoked the urgency
provisions and thereby denied him the minimum opportunity of B
hearing in terms of Section 5-A(1) and (2), should be treated
as sufficient for calling upon the respondents to file their
response and produce the relevant records to justify the invoking
of urgency provisions.
20. In Narayan Govind Gavate v. State of Maharashtra C
(supra), the three-Judge Bench of this Court examined the
correctness of the judgment of the Bombay High Court whereby
the acquisition of land by the State Government by issuing
notification under Section 4 read with Section 17(1) and 17(4)
· for development and utilisation as residential and industrial area D
was quashed. The High Court held that the purpose of
acquisition was a genuine public purpose but quashed the
notifications by observing that the burden of proving the
existence of circumstances which could justify invoking of
urgency clause was on the State, which it had failed to E
discharge. Some of the observations made by the High Court, .
which have been extracted in paragraphs 11 and 12 of the
judgment of this Court, are reproduced below.
"When the formation of an opinion or the satisfaction of an F
authority is subjective but is a condition precedent to the
exercise of a power, the challenge to the formation of such
opinion or to such satisfaction is limited, in law, to three
points only. It can be challenged, firstly, on the ground of
mala fides; secondly, on the ground that the authority which
formed that opinion or which arrived at such satisfaction G
did not apply its mind to the material on which it formed
the opinion or arrived at the satisfaction, and, thirdly, that
the material on which it formed its opinion or reached the
satisfaction was so insufficient that no man could
H
394 SUPREME COURT REPORTS [2011) 8 S.C.R.
A reasonably reach that conclusion. So far as the third point
is concerned, no court of law can, as in an appeal,
consider that, on the material placed before the authority,
the authority was justified in reaching its conclusion. The
court can interfere only in such cases where there was no
B material at all or the material was so insufficient that no
man could have reasonably reached that conclusion.
In the case before us the petitioner has stated in the
petition more than once that the urgency clause had been
applied without any valid reason. The urgency clause in
c respect of each of the said two notifications concerning the
lands in Groups 1 and 2 is contained in the relative Section
4 notification itself. The public purpose stated in the
notification is 'for development and utilization of the said
lands as an industrial and residential area'. To start with,
D this statement itself is vague, in the sense that it is not clear
whether the development and utilization of the lands
referred to in that statement was confined to the lands
mentioned in the schedule to the notification or it applied
to a wider area of which such lands formed only a part.
E So far as the affidavit in reply is concerned, no facts
whatever are stated. The affidavit only states that the
authority i.e. the Commissioner of the Bombay Division
was satisfied that the possession of the said lands was
urgently required for the purpose of carrying out the said
F development. Even Mr Setalvad conceded that the affidavit
does not contain a statement of facts on which the authority
was satisfied or on which it formed its opinion. It is,
therefore, quite clear that the respondents have failed to
bring on record any material whatever on which the
G respondents formed the opinion mentioned in the two
notifications. The notifications themselves show that they
concern many lands other than those falling in the said first
and third groups. It is not possible to know what was the
development for which the lands were being acquired,
much less is it possible to know what were the
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 395
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
circumstances which caused urgency in the taking of A
1
possession of such lands. We have held that the burden
of proving such circumstances, at least prima facie is on
the respondents. As the respondents have brought no
relevant 'material on the record, the respondents have
failed to discharge that burden. We must, in conclusion, B
hold that the urgency provision under Section 17(4) was
not validly resorted to."
(emphasis supplied)
While dealing with the argument of the State that it was C
for the petitioner to prove that there was no material to justify
invoking of the urgency clause, this Court observed:
"We do not think that a question relating to burden of proof
is always free from difficulty or is quite so simple as it is 0
sought to be made out here. Indeed, the apparent
· simplicity of a question relating to. presumptions and
burdens ofproof, which have to be always viewed together
· is often deceptive. Over simplification of such questions
leads to erroneous statements and misapplications of the E
law." .
The Court then referred to the judgment in Woolmington
v. Director Public Prosecutions, 1935 AC 462, extensively
quoted from Phipson on Evidence (11th Edn), noticed
Sections 101 to 106 of the Evidence Act and observed: F
"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 G
on certain limited grounds. But, as soon as we speak of a
challenge we have to bear in mind 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 H
396 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 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 duty his petition will fail. But, is that the
position in the cases before us? We find that, although the
B High Court had stated the question before it to be one
which "narrows down to the point as to the burden of proof'
yet, it had analysed the evidence sufficiently before it to
reach the conclusion that the urgency provision under
Section 17(4) had not been validly resorted to.
c
.. . We think that the original or stable onus laid down by
Section 101 and Section 102 of the Evidence Act cannot
be shifted by the use of Section 106 of the Evidence Act,
D although the particular onus of providing facts and
circumstances lying especially within the knowledge of
the official who formed the opinion which resulted in the
notification under Section 17 (4) of the Act rests upon that
official. The recital, if it is not defective, may obviate the
E need to look further. But, there may be circumstances in
the case which impel the court to look beyond it. And, at
that stage, Section 106 Evidence Act can be invoked by
the party assailing an order or notification. It is most
unsafe in such cases for the official or authority
F concerned to rest content which non-disclosure of facts
especially within his or its knowledge by relying on the
sufficiency of a recital. Such an attitude may itself justify
further judicial scrutiny.
G
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
H addition to the bare assertions made by the petitioners,
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 397
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
that the urgency contemplated by Section 17(4) did not A
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
It is also clear that, even a technically correct recital in
an order or notification stating that the conditions
precedent to the exercise of a power have been fulfilled C
may not debar the court in a given case from considering
the question whether, in fact, those conditions have been
fulfilled. And, a fortiori, the court may consider and
decide whether the authority concerned has applied its
mind to really relevant facts of a case with a view to D
determining that a condition precedent to the exercise of
a power has been fulfilled. If it appears, upon an
examination of the totality of facts in the case, that the
power conferred has been exercised for an extraneous
or irrelevant purpose or that the mind has not been E
applied at all to the real object or purpose of a power, so
that the result is that the exercise of power could only
serve some other or collateral object, the court will
interfere. n .
The Court finally held as under: F
" .................. There is no indication whatsoever in the
affidavit filed on behalf of the State the mind of the
Commissioner was applied at all to the question whether
it was a case necessitating the elimination of the enquiry G
under Section5A of the Act. The recitals in the notifications,
on the other hand, indicate that elimination of the enquiry
under Section SA 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 H
~
398 SUPREME COURT REPORTS [2011) 8 S.C.R.
A the need to dispense with the enquiry under Section 5A
of the Act. It is certainly a case 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
B necessitated the elimination of an enquiry under Section
5A of the Act and 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
c to prove those special circumstances, although it also
appears to us that the High Court was quite correct in
stating its view in such a manner as to make it appear
that some 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
D
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
knowledge of its officials, which rested upon it under
Section 106 of the Evidence Act, taken together with the
E 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."
(emphasis supplied}
F
21. The ratio of the aforesaid judgment was recently
followed by the two-Judge Bench in Anand Singh v. State of
Uttar Pradesh (2010) 11 SCC 242.
22. We shall now consider whether there was any valid
G ground or justification for invoking the urgency provision
contained in Section 17(1} and to exclude the application of
Section 5A for the acquisition of land for planned industrial
development of the district. Sections 4, 5-A (as amended}, 6
and 17 of the Act which have bearing on this question rea_d as
H under:
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 399
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
"4. Publication of preliminary notification and power of A
officers thereupon. - ( 1) Whenever it appears to the
appropriate Government that land in any locality is needed
or is likely to be needed for any public purpose or for a
company, a notification to that effect shall be published in
the Official Gazette and in two daily newspapers circulating B
in that locality of which at least one shall be in the regional
language, and the Collector shall cause public notice of the
substance of such notification to be given at convenient
places in the said locality (the last of the dates of such
publication and the giving of such public notice, being C
hereinafter referred to as the date of the publication of the
notification).
(2) Thereupon it shall be lawful for any officer, either
generally or specially authorized by such Government in
this behalf, and for his servants and workmen, - D
to enter upon and survey and take levels of any land in such
locality; to dig or bore into the sub-soil;
to do all other acts necessary to ascertain whether the land E
is adapted for such purpose;
to set out the boundaries of the land proposed to be taken
and the intended line of the work (if any) proposed to be
made thereon;
F
to mark such levels, boundaries and line by placing marks
and cutting trenches; and,
where otherwise the survey cannot be completed and the
levels taken and the boundaries and line marked, to cut
down and clear away any part of any standing crop, fence G
or jungle;
Provided that no person shall enter into any building
or upon any enclosed court or garden attached to a
dwelling house (unless with the consent of the occupier H
400 SUPREME COURT REPORTS [2011] 8 S.C.R.
A thereof} without previously giving such occupier at least
seven days' notice in writing of his intention to do so.
SA. Hearing of objections. - (1) Any person interested in
any land which has been notified under section 4, sub-
section (1), as being needed or likely to be needed for a
8 public purpose or for a company may, within thirty days
from the date of the publication of the notification, object
to the acquisition of the land or of any land in the locality,
as the case may be.
c (2) Every objection under sub-section (1) shall be made
to the Collector in writing, and the Collector shall give the
objector an opportunity of being heard in person or by any
person authorized by him in this behalf or by pleader and
shall, after hearing all such objections and after making
D such further inquiry, if any, as he thinks necessary, either
make a report in respect of the land which has been
notified under section 4, sub-section (1), or make different
reports in respect of different parcels of such land, to .the
appropriate Government, containing his recommendations
E on the objections, together with the record of the
proceedings held by him, for the decision of that
Government. The decision of the appropriate Government
on the objections shall be final.
(3) For the purpose of this section, a person shall be
F deemed to be interested in land who would be entitled to
claim an interest in compensation if the land were acquired
under this Act.
6. Declaration that land is required for a public purpose.
G - (1) Subject to the provisions of Part VII of this Act, wlfen
the appropriate Government is satisfied, after considering
the report, if any, made under section 5A, sub-section (2),
that any particular land is needed for a public purpose, or
for a Company, a declaration shall be made to that effect
under the signature °''a Secretary to such Government or
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 401
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
A
of some. officer duly authorized to certify its orders, and
different declarations may be made from time to time in
respect of different parcels of any land covered by the
same notification under section. 4, sub-section (1)
irrespective of whether one report or different reports has
or have been made (wherever required) under section SA, !3
sub-section (2):
Provided that no declaration in respect of any particular
land covered by a notification under section 4, sub-section
(1), - c
(i) xx xx )()( )()(
(ii) published after the commencement of the Land
Acquisition (Amendment) Act, 1984, shall be made after
the expiry of one year from the date of the publication of D
the notification: ·
Provided further .that no such declaration shall be made
unless the compensation to be awarded for such property
is to be paid by a Company, or wholly or partly out of public E
revenues or some fund controlled or managed by a local
authority.
Explanation 1. - In computing any of the periods referred
to in the first proviso, the period during which any action
or proceeding to be taken in pursuance of the notification F
issued under section 4, sub-section (1 ), is stayed by an
order of a Court shall be excluded.
Explanation 2. - Where the compensation to be awarded
·for such property is to be paid out of the funds of a G
corporation owned or controlled by the State, such
compensation shall be deemed to be compensation paid
out of public revenues.
(2) Every declaration shall be" published in the Official H
Gazette, and in two daily newspapers circulating in the
402 SUPREME COURT REPORTS [2011) 8 S.C.R.
A · locality in which the land is situate of which at least one
shall be in the regional language, and the Collector shall
cause public notice of the substance of such declaration
to be given at convenient places in the said locality (the
last of the date of such publication and the giving of such
B public notice, being hereinafter referred to as the date of
the publication of the declaration), and such declaration
shall state the district or other territorial division in which
the land is situate, the purpose for which it is needed, its
approximate area, and, where a plan shall have been
c made of the land, the place where such plan may be
inspected.
(3) The said declaration shall be conclusive evidence that
the land is needed for a public purpose or for a Company,
as the case may be; and, after making such declaration,
D the appropriate Government may acquire the land in
manner hereinafter appearing.
17. Special powers in case of urgency. - (1) In cases of
urgency whenever the appropriate Government, so directs,
E the 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 land needed for a public purpose. Such
land shall thereupon vest absolutely in the Government, free
F from all encumbrances.
(2) Whenever, owing to any sudden change in the channel
of any navigable river or other unforeseen emergency, it
becomes necessary for any Railway Administration to
acquire the immediate possession of any land for the
G maintenance of their traffic or for the purpose of making
thereon a river-side or ghat station, or of providing
convenient connection with or access to any such station,
or the appropriate Government considers it necessary to
acquire the immediate possession of any land for the
H
SRI RADHY SHYAM (0) THROUGH LRS. & ORS. v. 403
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
purpose of maintaining any structure or system pertaining A
to irrigation, water supply, drainage, road communication
or electricity, the Collector may, immediately after the
publication of the notice mentioned in sub-section (1) and
with the previous sanction of the appropriate Government,
enter upon and take possession of such land, which shall B
thereupon vest absolutely in the Government free from all
encumbrances:
Provided that the Collector shall not take possession of any
building or part of a building under this sub-section without C
giving to the occupier thereof at least forty-eight hours'
notice of his intention so to do, or such longer notice as
may be reasonably sufficient to enable such occupier to
remove his movable property from such building without
unnecessary inconvenience.
D
(3) In every case under either of the preceding sub-
sections the Collector shall at that time of taking
possession offer to the persons interested compensation
for the standing crops and trees (if any) on such land and
from any other damage sustained by them caused by such E
sudden dispossession and. not excepted in section 24;
and, in case such offer is not accepted, the value of such
crops and trees and the amount of such other damage shall
be allowed for in awarding compe11sation for the land
under the provisions herein contained. F
(3A) Before taking possession of any land under sub-
section (1) or sub-section (2), the Collector shall, without
prejudice to the provisions of sub-section (3)-
( a) tender payment of eighty per centum of the G
compensation for such land as estimated by him to the
persons interested entitled thereto, and
(b) pay it to them, unless prevented by some one or more
of the contingencies mentioned in section 31; sut>..:section H
404 SUPREME COURT REPORTS [2011] 8 S.C.R.
A (2),
and where the Collector is so prevented, the provisions of
section 31, sub-section (2), (except the second proviso
thereto), shall apply as they apply to the payment of
compensation under that section.
B
(38) The amount paid or deposited under sub-section (3A),
shall be taken into account for determining the amount of
compensation required to be tendered under section 31,
and where the amount so paid or deposited exceeds the
c compensation awarded by the Collector under section 11,
the excess may, unless refunded within three months from
the date of Collector's award, be recovered as an arrear
of land revenue.
D (4) In the case of any land to which, in the opinion of the
appropriate Government, the provisions of sub-section (1)
or sub-section (2) are applicable, the appropriate
Government may direct that the provisions of section 5A
shall not apply, and, if it does so direct, a declaration may
be made under section 6 in respect of the land ar any time
E
after the date of the publication of the notification under
section 4, sub-section (1 ).
Section 17 has been amended five times by the Uttar
Pradesh legislature. However, the only amendment which is
F relevant for deciding this case is the insertion of proviso to
Section 17(4) vide Uttar Pradesh Act No.8 of 1974. That
proviso reads as under:
"Provided that where in the case of any land, notification
G under section 4, sub-section (1) has been published in the
Official Gazette on or after September 24, 1984 but before
January 11, 1989, and the appropriate Government has
under this sub-section directed that the provisions of
section 5A shall not apply, a declaration under section· 6
in respect of the land may be made either simultaneously
H
· SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 405
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
with, or at any time after, the publication in the Official A
Gazett~ of the notification under section 4, sub-section (1 )."
23. ANALYSIS OF THE PROVISIONS:
Section 4(1) lays down that whenever it appears to the
appropriate Government that land in any locality is needed or B
is likely to be needed for any public purpose or for a company,
then a notification to· that effect is required to be published in
the Official Gazette and two daily newspapers having circulation
in the locality. Of these,' one paper has to be in the regional
language. A duty is also cast on the Collector, as defined in C
Section 3(c), to cause public notice of the substance of such
notification to be given at convenient places in the locality. The
last date of publication and giving of public notice is treated
as the date of publication of thel notification. Section 4(2) lays
down that after publication of the notification under Section 4(1 ), D
any offiter authorised by the Government in this behalf, his
servants orworkmen can enter upon and survey and take levels
of any land, in the locality or to dig or bore into the sub-soil and
to do all other acts necessary for ascertaining that land is
suitable for the purpose of acquisition. The concerned officer; E
his servants or workmen can fix the boundaries of land
proposed to· be acquired and the intended line ot'the work, if
any, proposed to be made on it. They can also mark such levels
and boundaries by marks and cutting trenches and cut down
and clear any part of any standing crops, fence or jungle for the F
purpose of completing the survey and taking level, marking of
boundaries and line. However, neither the officer nor his
servants or workmen can, without the consent of the occupier,
enter into any building or upon any enclosed court or garden
attached to a dwelling house without giving seven days' notice G
to the occupier. Section SA, which embodies the most
important dimension of the rules of natural justice, lays down
that any person interested in any land notified under Section
4(1) may, within 30 days of publication of the notification,
submit objection in writing against the proposed acquisition of
H
406 SUPREME COURT REPORTS [2011) 8 S.C.R.
A land or of any land in the locality to the Collector. The Collector
is required to give the objector an opportunity of being heard
either in person or by any person authorized by him or by
pleader. After hearing the objector (s) and making such further
inquiry, as he may think necessary, the Collector has to make
s a report in respect of land notified under Section 4(1) with his
recommendations on the objections and forward the same to
the Government along with the record of the proceedings held
by him. The Collector can make different reports in respect of
different parcels of land proposed to be acquired. Upon receipt
c · of the Collector's report, the appropriate Government is
required to take action under Section 6(1) which lays down that
after considering the report, if any, made under Section 5-A (2),
the appropriate Government is satisfied that any particular land
is needed for a public purpose, then a declaration to that effect
D is required to be made under the signatures of a Secretary to
the Government or of some officer duly authorised to certify its
orders. This section also envisages making of different
declarations from time to time in respect of different parcels of I
land covered by the same notification issued under Section
5(1). In terms of clause (ii) of proviso to Section 6(1), no
E declaration in respect of any particular land covered by a
notification issued under Section 4(1 ), which is published after
24 .9 .1989 can be made after expiry of one year from the date
of publication of the notification. To put it differently, a
declaration is required to be made under Section 6(1) within
F one year from the date of publication of the notification under
Section 4(1). In terms of Section 6(2), every declaration made
under Section 6(1) is required to be published in the official
gazette and in two daily newspapers having circulation in the
locality in which land proposed to be acquired is situated. Of
G these, at least one must be in the regional language. The
Collector is also required to cause public notice of the
substance of such declaration to be given at convenient places
in the locality. The declaration to be published under Section
6(2) must contain the district or other territorial division in which
H land is situate, the purpose for which it is needed, its
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 407
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
approximate area or a plan is made in respect of land and the A
place where such plan can be inspected. Section 6 (3) lays
down that the declaration made under Section 6(1) shall be
conclusive evidence of the fact that land is needed for a public
purpose. After publication of the declaration under Section 6,
the Collector is required to take order from the State B
Government for the acquisition of land to be carved out and
measured and planned (Sections 7 and 8). The next stage as
envisaged is issue of public notice and individual notice to the
persons interested in land to file their claim for compensation.
Section 11 envisages holding of an enquiry into the claim and c
passing of an award by the Collector who is required to take
into consideration the provisions contained in Section 23.
Section 16 lays down that after making an award the Collector
can take possession of land which shall thereafter vest in the
Government. Section 17(1) postulates taking of possession of
0
land without making an award. If the appropriate Government
decides that land proposed to be acquired is urgently needed
· for a public purpose then it can· authorise the competent
authority to take possession. Section 17(2) contemplates a
different type of urgency in which, the State Government can E
authorise taking of possession even before expiry of 15 days
period specified in Section 9 (1). Section 17(4) lays down that
in cases where appropriate Government comes to the
conclusion that there is existence of an urgency or unforeseen
emergency, it can direct that provisions of Section 5-A shall not
apply. F
24. Before adverting to the precedents in which Section
SA has been interpreted by this Court, it will be useful to notice
development of the law relating to the rule of hearing. In the
celebrated case of Cooper v. Wandsworth Board of Works G
(1863) 143 ER 414, the principle was stated thus:
"Even God did not pass a sentence upon Adam, before
he was called upon to make his defence. "Adam" says
God, "where art thou? hast thou not eaten of the tree
H
408 SUPREME COURT REPORTS [2011] 8 S.C.R.
A whereof I commanded thee that thou shouldest not eat".· ·
Therein the District Board had brought down the house of the
plaintiffs (Cooper), because he had failed to comply with The
Metropolis Local Management Act The Act required the plaintiff
B to notify the board seven days before starting to build the house.
Cooper argued that even though the board had the legal
authority to tear his house down, no person should be deprived
of their property without notice. In spite of no express words in
the statute the court recognized the right of hearing before the
plaintiffs house built without permission was demolished in the
C exercise of statutory powers. Byles J stated:
'Although there are not positive words in a statute requiring
that the party shall be heard, yet the justice of the common
law shall supply the omission of the legislature'.
D
25. Perhaps the best known statement on the right to be
heard has come from Lord Loreburn, L.C. in Board of
Education v. Rice (1911 AC 179 at 182), where he observed:
"Comparatively recent statutes have extended, if they have
E originated, the practice of imposing upon departments or
offices of State the duty of deciding or determining
questions of various kinds ... In such cases ... they must act
in good faith and fairly listen to both sides, for that is a duty
lying upon everyone who decides anything. But I do not
F think they are bound to treat such questions as though it
were a trial ... they can obtain information in any way they
think best, always giving a fair opportunity to those who are
parties in the controversy for correcting or contradicting any
relevant statement prejudicial in their view."
G
26. In Ridge v. Baldwin 1964 AC 40 Lord Reid
emphasized on the universality of the right to a fair hearing
whether it concerns the property or tenure of an office or
membership of an institution. In O'Reilly v. Mackman 19.83 2
H AC 237, Lord Diplock said that the right of a man to be given
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 409
STATE OF U.P. & ORS. [G.S. SINGHVI, J.] .
a fair opportunity of hearing, what is alleged against him and A
of presenting his own case is so fundamental to any civilized
legal system that it is to be presumed that Parliament intended
that failure to observe the same should render null and void any
decision reached in breach of this requirement.' In- Lloyd v.
Mcmahon 1987 AC 625 Lord Bridge said: B
"My Lords, the so-called rules of natural justice are not
engraved on tablets of stone. To use the phrase which
better expresses the underlying concept, what the
requirements of fairness demand when any body, C
domestic, administrative or·judicial, has to make a
decision which will affect the rights of individuals depends
on the character of the decision-making body, the kind of
decision it has to make and the statutory or other
framework in which it operates. In particular, it is well-
established that when a statute has conferred on any body D
the power to make decisions affecting individuals, the
courts will not only require the procedure prescribed by the
statute to be followed, but will readily imply so much and
no more to be introduced by way of additional procedural
safeguards as will ensure the attainment of fairness." E
27. In the United States, principles of natural justice usually
find support from the Due Process clause of the Constitution.
The extent· of due process protection required is determined
by a number of factors; first the private interest that will be F
affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural
requirement would entail.
28. The amplitude, ambit and width of the rule of audi G
alteram partem was lucidly stated by the three-Judge bench
in Sayeedur Rehman v. State of Bihar (1973) 3 SCC 333 in
the following words:
"11 .......... This unwritten right of hearing is fundamental to H
410 SUPREME COURT REPORTS [2011] 8 S.C.R.
A a just decision by any authority which decides a
controversial issue affecting the rights of the rival
contestants. This right has its roots in the notion of fair
procedure. It draws the attention of the party concerned to
the imperative necessity of not overlooking the other side
B of the case before coming to its decision, for nothing is
more likely to conduce to just and right decision than the
practice of giving hearing to the affected parties."
29. In Mohinder Singh Gill v. Chief Election
Commissioner (1978) 1 SCC 405, Krishna Iyer J. speaking
C for himself, Beg CJ and Bhagwati J. highlighted the importance
of rule of hearing in the following words:
"43. Indeed, natural justice is a pervasive facet of secular
law where a spiritual touch enlivens legislation,
D administration and adjudication, to make fairness a creed
of life. It has, many colours and shades, many forms and
shapes and, save where valid law excludes it, applies
when people are affected by acts of authority. It is the hone
of healthy government, recognised from earliest times and
E not a mystic testament of Judge-made law. Indeed, from
the legendary days of Adam - and of Kautilya's
Arthasastra - the rule of law has had this stamp of natural
justice which makes it social justice. We need not go into
these deeps for the present except to indicate that the
F roots of natural justice and its foliage are noble and not
new-fangled. Today its application must be sustained by
current legislation, case-law or other extant principle, not
the hoary chords of legend and history. Our jurisprudence
has sanctioned its prevalence even like the Anglo-
American system.
G
48. Once we understand the soul of the rule as fair play in
action - and it is so - we must hold that it extends to
H both the fields. After all, administrative power in a
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 411
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
democratic set-up is not allergic to fairness in action and A
discretionary executive justice cannot degenerate into
unilateral injustice. Nor is there ground to be frightened of
delay, inconvenience and expense, if natural justice gains
access. For fairness itself is a flexible, .pragmatic and
relative concept, not a rigid, ritualistic or sophisticated B
abstraction. It is not a bull in a china shop, nor a bee in
one's bonnet. Its essence is good conscience in a given
situation: nothing more - but nothing less. The
"exceptions" to the rules of natural justice are a misnomer
or rather are but a shorthand form of expressing the idea c
that in those exclusionary cases nothing unfair can be
inferred by not affording an opportunity to present or meet
a case. Text-book excerpts and ratios from rulings can be
heaped, but they all converge to the same point that audi
alteram partem is the justice of the law, without, of course, 0
making law lifeless, absurd, stultifying, self-defeating or
plainly contrary to the common sense of the situation."
30. In Maneka Gandhi, v. Union of India (1978) 1 SCC
248, Bhagwati J. speaking for himselfand Untwalia and Fazal
Ali JJ. observed: E
"14 ............The audi alteram partem rule is intended to .
inject justice into the law and it cannot be applied to defeat
the ends of justice, or to make the law "lifeless, absurd,
stultifying, self-defeating or plainly contrary to the common F
sense of the situation". Since the life of the law is not logic
but experience and every legal proposition must, in the
ultimate analysis, be tested on the touchstone of pragmatic
realism, the audi alteram partem rule would, by the
experiential test, be excluded, if importing the right to be G
heard has the effect of paralysing the administrative
process or the need for promptitude or the urgency of the
. situation so demands. But at the same time it must be
remembered that this is a rule of vital importance in the
field of administrative law and it must not be jettisoned H
412 SUPREME COURT REPORTS [2011] 8 S.C.R.
A save in very exceptional circumstances where
compulsive necessity so demands. It is a wholesome rule
designed to secure the rule of law and the court should
not be too ready to eschew it in its application to a given
case. True it is that in questions of this kind a fanatical or
B doctrinaire approach should be avoided, but that does not
mean that merely because the traditional methodology of
a formalised hearing may have the effect of stultifying the
exercise of the statutory power, the audi alteram partem
should be wholly excluded. The court must make every
c effort to salvage this cardinal rule to the maximum extent
permissible in a given case. It must not be forgotten that
"natural justice is pragmatically flexible and is amenable
to capsulation under the compulsive pressure of
circumstances". The audi alteram partem rule is not cast
in a rigid mould and judicial decisions establish that it
D
may suffer situational modifications. The core of it must,
however, remain, namely, t.11at the person affected must
have a reasonable opportunity of being heard and the
hearing must be a genuine hearing and not an empty
public relations exercise."
E
(emphasis supplied)
31. In Swadeshi Cotton Mills v. Union of India (1981) 1
SCC 664 the majority of the three Judge Bench held that rule
F of audi alteram partem must be complied with even when the
Government exercises power under Section 18AA of the
Industries (Development & Regulation) Act, 1951 which
empowers the Central Government to authorise taking over of
the management of industrial undertaking. Sarkaria J. speaking
G for himself and Desai J. referred to the development of law
relating to applicability of the rule of audi alteram partem to
administrative actions, noticed the judgments in Ridge v.
Baldwin (supra), A.K. Kraipak vs. Union of India (1969) 2 SCC
262, Mohinder Singh Gill v. Union of India (supra), Maneka
Gandhi v. Union of India (supra) and State of Orissa v Dr. Bina
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 413
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
Pani Dei 1967 (2) SCR 625 and quashed the order passed A
by the Central Government for taking over the management of
the industrial undertaking of the appellant on the ground that
opportunity of hearing has not been given to the owner of the
undertaking and remanded the matter for fresh consideration
and compliance of the rule of audi alteram partem. 8
32. In Munshi Singh v. Union of India (1973) 2 SCC 337,
the three Judge Bench of this Court emphasised the importance
of Section 5A in the following words:
"7 ............. Sub-section (2) of Section 5-A makes it C
obligatory on the Collector to give an objector an
opportunity of being heard. After hearing all objections and
making further inquiry he is to make a report to the
appropriate Government containing his recommendation
on the objections. The decision of the appropriate D
Government on the ohjections is then final. The declaration
under Section 6 has to be made after the appropriate
Government is satisfied, on a consideration of the report,
if any, made by the Collector under Section 5-A(2). The
legislature has, therefore, made complete provisions for E
the persons interested to file objections against the
proposed acquisition and for the disposal of their
objections. It is only in cases of urgency that special
powers have been conferred on the appropriate
Government to dispense with the provisions of Section 5- F
A: [See Section 17(4) of the Acquisition Act.]"
33. In State of Punjab v. Gurdial Singh (1980) 2 SCC 471,
Krishna Iyer J. emphasized the necessity of reasonableness
and fairness in the State action of invoking the urgency
provision in the following words: ' G
"16 ......... .it is fundamental that compulsory taking' of a
man's property is a serious matter and the smaller the man
the more serious the matter. Hearing11lm before depriving
him is both reasonable and pre-emptive of arbitrariness, H
414 SUPREME COURT REPORTS [2011] 8 S.C.R.
A and denial of this administrative fairness is constitutional
anathema except for good reasons. Save in real urgency
where public interest does not brook even the minimum
time needed to give a hearing land acquisition authorities
should not, having regard to Articles 14 (and 19), burke
B an enquiry under Section 17 of the Act. Here a slumbering
process, pending for years and suddenly exciting itself into
immediate forcible taking, makes a travesty of emergency
power."
34. In Shyam Nandan Prasad v. State of Bihar (1993) 4
C SCC 255, this Court reiterated that the compliance of Section
SA is mandatory and observed as under:
"10 ............ The decision of the Collector is supposedly
final unless the appropriate Government chooses to
D interfere therein and cause affectation, suo motu or on the
application of any person interested in the land. These
requirements obviously lead to the positive conclusion that
the proceeding before the Collector is a blend of public
and individual enquiry. The person interested, or known to
E be interested, in the land is to be served personally of the
notification, giving him the opportunity of objecting to the
acquisition and awakening him to such right. That the
objection is to be in writing, is indicative of the fact that
the enquiry into the objection is to focus his individual
F cause as well as public cause. That at the time of the
enquiry, for which prior notice shall be essential, the
objector has the right to appear in person or through
pleader and substantiate his objection by evidence and
argument."
G 35. The ratio of Munshi Singh v. Union of India (supra}
has been reiterated and followed in Union of India v. Mukesh
Hans (2004) 8 SCC 14, Hindustan Petroleum Corporation
Limited v. Darius Shapur Chenai (2005) 7 SCC 627 and
Anand Singh v. State of Uttar Pradesh (supra).
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 415
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
36. The acquisition of land under Section 4 read with A
Section 17(1) and/or 17(4) has generated substantial litigation
in last 50 years. One of the earliest judgments on the subject
is Nandeshwar Prasad v. The State of Uttar Pradesh (1964)
3 SCR 425. In that case, the acquisition of land for construction
of tenements for the 4th phase of subsidized industrial housing B
scheme sponsored by the State Government, as also for
general improvement and street Scheme No.XX of Kanpur
Development Board by issuing notification under Section 4
read with Section 17(1), (1-A) and 17(4) was challenged. The
learned Single Judge and the Division Bench of the Allahabad c
High Court negatived the appellants' challenge by observing
that once Section 17 is invoked, there was no necessity to hold
enquiry under Section SA. This Court set aside the order of the
Division Bench of the High Court and held:
"It will be seen that Section 17(1) gives power to the D
Government to direct the Collector, though no. award has
been made under Section11, to take possession of any
waste or arable land needed for public purpose and such
land thereupon vests absolutely in the Government free
from all encumbrances. If action is taken under Section E
17(1 ), taking possession and vesting which are provided
in Section 16 after the award under Section 11 are
accelerated and can take place fifteen days after the
publication of the notice under Section 9. Then comes
Section 17(4) which provides that in case of any land to F
which the provisions of sub-section (1) are applicable, the
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 notification under Section 4(1 ). G
It will be seen that it is not necessary even where the
Government makes a direction under Section 17(1) that
. it should also make a direction under Section 17(4). If the
Government makes a direction only under Section 17(1)
the procedure under Section 5-A would still have to be H
416 SUPREME COURT REPORTS · [2011] 8 S.C.R.
A followed before a notification under Section 6 is issued,
though after that procedure has been followed and a
notification under Section 6 is issued the Collector gets
the power to take possession of the land after the notice
under Section 9 without waiting for the award and on such
B taking possession the land shall vest absolutely in
Government free from all encumbrances. It is only when
the Government also makes a declaration under Section
17 (4) that it becomes unnecessary to take action under
Section 5-A and make a report thereunder. It may be that
c generally where an order is made under Section 17(1),
an order under Section 17(4) is also passed; but in law it
is not necessary that this should be so. It will also be seen
that under the Land Acquisition Act an order under
Section 17(1) or Section 17(4) can only be passed with
respect to waste or arable land and it cannot be passed
D
with respect to land which is not waste or arable and on
which buildings stand. n
(emphasis supplied)
E 37. In Raja Anand Brahma Shah v. State of Uttar
Pradesh (1967) 1 SCR 373, the Constitution Bench
considered the legality of the acquisition of 409.6 acres of
land in village Markundi Ghurma, Pargana Agori for a public
purpose i.e. for limestone quarry. The State Government
F invoked Section 17(1) and 17(4), dispensed with requirement
of hearing envisaged under Section 5-A and directed the
Collector and District Magistrate, Mirzapur to take the
possession of land. The Allahabad High Court dismissed the
writ petition filed by the appellant by observing that the Court
G cannot interfere w.ith the subjective satisfaction reached by the
State Government on the issue of urgency. This Court agreed
with the. High Court that the acquisition was for a public purpose
but held that the expression of opinion by the State Government
on the issue of invoking urgency provision can be challenged
on the ground of non application of mind or mala tides. The
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 417
STATE OF U.P. & ORS, [G.S: SINGHVI, J.]
Court relied upon the judgments in King Emperor v. Shibnath A
Banerjee, Criminal Appeal No.110 of 1966 decided on July
27, 1966; Jaichand Lal Sethia v. State of West Bengal (1958)
1 WLR 546; Estate and Trust Agencies Ltd. v. Singapore '.'
Improvement Trust (1914) 1 Ch 438; Ross Clunis v.
Papadopoullos 44 1A 117 and R. v. Australian Stevedoring B
Industry Board 39 1A 133 and observed:
"It is true that the opinion of the State Government which
is a condition for the exercise of the power under Section
17 (4) of the Act, is subjective and a court cannot normally C
enquire whether there were sufficient grounds or
justification of the opinion formed by the State Government
under Section 17(4). The legal position has been explained
· by the Judicial Committee in King Emperor v. Shibnath
Banerjee and by this Court in a recent case - Jaichand ·
Lal Sethia v. State of West Bengal. But even though the D
power of the State Government has been formulated under
Section 17(4) of the Act in subjective terms the expression
of opinion of the State Government can be challenged
as ultra vires in a court of law if it could be shown that
the State Government never applied it mind to the matter ~
or that the action of the State Government is ma/a fide.
If therefore in a case the land under acquisition is not
actually waste or arable land but the State Government
has formed the opinion that the provisions of sub-section
(1) of Section 17 are applicable, the court may F
legitimately draw an inference that the State Government
did not honestly form that opinion or that in forming that
opinion the State Government did not apply its mind to
the relevant facts bearing on the question at issue. It
follows therefore that the notification of the State G
Government under Section 17 (4) of the Act directing that
the provisions of Section 5~A shall not apply to the land is
ultra vires."
(emphasis supplied) H
418 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 38. In Narayan Govind Gavate v. State of Maharashtra
(supra), this Court while approving the judgment of the Bombay
High Court, which quashed the acquisition made under Section
4 read with Section 17(1) and 17(4) held as under:
B "38. Now, the purpose of Section 17(4) of the Act is,
obviously, not merely to confine action under it to waste
and arable land but also to situations in which an inquiry
under Section 5-A will serve no useful purpose, or, for
some overriding reason, it should be dispensed with. The
mind of the officer or authority concerned has to be
c applied to the question whether there is an urgency of such
a 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.
D
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 generally
take sufficient period of time to enable at least summary
inquiries under Section 5-A of the Act to be completed
F 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, on the apparent facts of the
case, as to require the elimination of an enquiry under
Section 5-A of the Act.
G
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. Yet, the very nature of such
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 419
STATE OF U.P. & ORS. [G.S. SINGHVI, J.)
schemes of development does not appear to demand A
such emergent action as to eliminate summary enquiries
under Section 5-A of the Act... ................... ."
(emphasis supplied}
39. The next judgment which deserves to be mentioned is B
Om Prakash v State of U.P. (supra). In 1976, NOIDA acquired
large tracts of land in different villages of Ghaziabad District
including village Chhalera Banger for planned industrial
development of Ghaziabad. On being approached by NOIDA,
the State Government invoked Section 17 (1) and 17(4) on the C
ground that the land was urgently required. In 1987, more lands
were acquired from the same village by issuing notification
under Section 4. This time the land owners were given
opportunity to file their objections and after considering the
.same, the State Government issued notification under Section D
6 for the acquisition of 353 acres land. In 1988; NOIDA
· submitted fresh proposal for the acquisition of land belonging
to the appellants and others (total land measuring 294.26
acres). The State Government issued notification under Section
4 read with Section 17(1) and 17(4) of the Act clearly indicating E
therein that Section 5-A was not applicable. The writ petitions
filed by the land owners were dismissed by the High Court.
After noticing the argufi11ents of the learned counsel for the
parties, this Court framed the following questions.
F
"1. Whether the State authorities were justified in invoking
Section 17(4) of the Act for dispensing with inquiry under
Section 5-A of the Act.
2. In any case, whether the appellants' lands have to be
treated as immune from acquisition proceedings on the G
ground that they were having abadi thereon and were,
therefore, governed by the policy decision of the State of
U.P. not to acquire such lands.
3. Whether this Court should refuse to exercise its H
420 SUPREME COURT REPORTS [2011] 8 S.C.R.
A discretionary jurisdiction under Article 136 of the
Constitution of India in the facts and circumstances of the
case.
4. What final orders."
B While dealing with question No. 1, the Court noticed the
scheme of Section 17, referred to the pleadings of the parties,
and the judgments in State of U.P. v. Pista Devi (supra),
Narayan Govind Gavate v. State of Maharashtra (supra),
Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84,
C State of Punjab v. Gurdial Singh (supra), Nandeshwar Prasad
v. U.P. Govt. (supra), A.P. Sareen v. State of U.P. (1997) 9
SCC 359, Ghaziabad Development·Authority v. Jan Kalyan
Samiti (1996) 2 SCC 365, Jai Narain v. Union of India (1996)
1 sec 9 and held that the decision to dispense with the inquiry
D envisaged under Section 5-A was not based on any real and
genuine subjective satisfaction. In the process, the Court noted
that in 1989 the State Government had not resorted to Section
17 and the acquisition proceedings were finalized after holding
inquiry under Section 5-A and observed:
E
"We were informed by Senior Counsel Shri Mohta for
NOIDA that even though in the earlier acquisition of 1987
pursuant to Section 4 notification, inquiry under Section 5-
A was not dispensed with, by the time Section 6
notification came to be issued, Section 17(1) was resorted
F
to as urgency had developed at least by the end of
December 1989. If that be so, it was expected that
pursuant to the requisition of 14-12-1989 by NOIDA
invoking urgency powers of the State Government,
consequential notification under Section 4(1) would have
G seen the light of day at the earliest in connection with
acquisition of the proposed 494.26 acres of land for the
development of Sector 43 and other sectors. But curiously
enough, nothing happened urgently and Section 4
notification which is impugned in the present case was
H issued on 5-1-1991. Thus despite the invocation of
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 421
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
urgency by NO/DA by its Jetter dated 14-12-1989, it A
appears that the State did not think the said proposal to
be so urgent as to immediately respond and to issue
notification under Section 4 read with Section 17 sub-
section (4) till 5-1-1991. More than one year elapsed in
the meantime. Why this delay took place and why the B
State did not think it fit to urgently respond to the proposal
of NO/DA, has remained a question mark for which there
is no answer: furnished by the respondent-authorities in
the present cases and nothing is brought on the record
by them to explain the delay. It has, therefore, c
necessarily to be presumed that despite the emergency
powers of the State Government being invoked by
NO/DA, the State authorities in their wisdom did not think
the matter to be so urgent as to immediately respond and
promptly issue Section 4 notification read with Section 0
17(4).
Even that apart, despite proposal to acquire this land was
moved by NOIDA as early as on 14-6-1988, and even E
thereafter when the request was sent in this communication
on 14-12-1989, the State authorities did not think the
situation to be so urgent as to respond quickly and could
wait for more than one year. When the appellants in the
writ petitions before the High Court raised their grievances F
regarding dispensing with inquiry under Section 5-A being
not backed up by relevant evidence and the subjective
satisfaction of the State in this connection was brought in
challenge, all that was stated by NOIDA in its counter in
para 26 was to the effect that the contents of paras 25 and G
26 of the writ petition were denied and that the petitioners
were not able to point out any lacunae in the proceedings
under the Land Acquisition Act. The position was no better
so far as the counter of the State authorities was
concerned. In para 24 of the counter before the High Court, H
422 SUPREME COURT REPORTS [2011] 8 S.C.R.
A all that was stated was that paras 25 and 26 of the writ
petition were denied. When we turn to paras 25 and 26
of the writ petition, we find averments to the effect that the
urgency of the acquisition was only for the purpose of
depriving the petitioners of their rights to file objections
B under Section 5-A and their right to hold the possession
till they got compensation for which the respondents had
issued notification under Section 17(1) as well as
notification Section 17(4) of the Act. But so far as the
process of the acquisition was concerned, the
c respondents were taking their own time, which would be
evident from the fact that the notification under Section
4 read with Section 17(4) was issued on 5-1-1991 but was
published in the newspaper on 30-3-1991, whereas the
declaration under Section 6 of the Act was made on 7-1-
1992 and that on the one hand, the respondents had
D
deprived the petitioners of filing their objections under
Section 5-A of the Act on the ground of urgency of
acquisition, but on the other hand, they themselves had
taken more than nine months in issuing the declaration
under Section 6 of the said Act. This conduct of the
E respondents falsified their claim of urgency of acquisition.
The additional material which was produced before the
F High Court was by way of Annexures CA-3, CA-4 and CA-
5. When we turn to these annexures, we find that
AnnexureCA-3 is a letter dated 21-4-1990 written by the
District Magistrate, Gt.,,ziabad, to the Joint Secretary,
Industries, Government of Uttar Pradesh. It recites that on
examination, it was found that the land was immediately
G
required in public interest so that the development work
in the said land could be carried out smoothly. What was
the nature of urgency is not mentioned in the said letter.
Therefore, the position remains as vague as it was earlier.
When we turn to Annexure CA-4 which is dated 12-6-1990,
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 423
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
we find that the District Magistrate, Ghaziabad wrote to the A
Joint Secretary, Industries, State of U.P., that as to how
many farmers were going to be affected by the proposed
acquisition. It does not even whisper about the urgency of
the situation which requires dispensing with Section 5-A
inquiry. The last, Annexure CA-5 is the letter dated 14-12- B
1989 written by NOIDA to the Land Acquisition Officer
proposing urgent acquisition of the lands in question. We
have already made a reference to the said letter. It recites
that if immediate action for acquisition of the aforesaid
lands adjacent to Sector 43 for development of which the c
acquisition was to be resorted to was not taken, then there
was possibility of encroachment over the area cannot by
any stretch of imagination be considered to be a germane
ground for invoking urgency powers for dispensing with
Section 5-A inquiry. Even if acquisition takes place urgently
0
by dispensing with inquiry under Section 5-A and the
possession is taken urgently after Section 6 notification
within 15 days of issuance of notice under Section 9 sub-
section (1), even then there is no guarantee that the
acquired land would not be encroached upon by unruly
persons. It is a law and order problem which has nothing E
to do with the acquisition and urgency for taking
possession. Even that apart, it is easy to visualize that if
objectors are heard in connection with Section 5-A inquiry
they would be the best person to protect their properties
against encroachers. Consequently, the ground put forward F
by NOIDA in its written request dated 14-12-1989 for
invoking urgency powers must be held to be totally
irrelevant."
(emphasis supplied) G
40. We may now notice some recent decisions. In Union
of India vs. Mukesh Hans (supra), this Court interpreted
Sections 5-A and 17 and observed:
"32. A careful perusal of this provision which is an H
424 SUPREME COURT REPORTS [2011) 8 S.C.R.
A exception to the normal mode of acquisition
contemplated under the Act shows that mere existence
of urgency or unforeseen emergency though is a
condition precedent for invoking Section 17(4), that by
itself is not sufficient to direct the dispensation of the
B Section 5-A inquiry. It requires an opinion to be formed
by the Government concerned that along with the
existence of such urgency or unforeseen emergency
there is also a need for dispensing with Section 5-A
inquiry which indicates that the legislature intended the
c appropriate Government to apply its mind before
dispensing with Section 5-A inquiry. It also indicates that
mere existence of an urgency under Section 17(1) or
unforeseen emergency under Section 17(2) would not by
itself be sufficient for dispensing with Section 5-A inquiry.
If that was not the intention of the legislature then the
D
latter part of sub-section (4) of Section 17 would not have
been necessary and the legislature in Sections 17(1) and
(2) itself could have incorporated that in such situation
of existence of urgency or unforeseen emergency
automatically Section 5-A inquiry will be dispensed with.
E But then that is not the language of the section which in
our opinion requires the appropriate Government to
further consider the need for dispensing with Section 5-
A inquiry in spite of the existence of unforeseen
emergency.
F
33. An argument was sought to be advanced on behalf of
the appellants that once the appropriate Government
comes to the conclusion that there is an urgency or
unforeseen emergency under Sections 17(1) and (2), the
G dispensation with inquiry under Section 5-A becomes
automatic and the same can be done by a composite
order meaning thereby that there is no need for the
appropriate Government to separately apply its mind for
any further emergency for dispensatibn with an inquiry
under Section 5-A. We are unable to agree with the above
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 425
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
argument because sub-section (4) of Section 17 itself A
indicates that the "Government may direct that the
provisions of Section 5-A shall not apply" (emphasis
supplied) which makes it clear that not in every case
where the appropriate· Government has come to the
conclusion that there is urgency and under sub-section B
(1) or unforeseen emergency under sub-section (2) of
Section 17, the Government will ipso facto have to direct
the dispensation of the inquiry."
(emphasis supplied) C
41. In Union of India v.. Krishan Lal Arneja (2004) 8 SCC
453, this Court approved quashing of the acquisition
proceedings by the High Court and observed:
"16. Section 17 confers extraordinary powers on the o
authorities under which it can dispense with the normal
procedure laid down under Section 5-A of the Act in
exceptional case of urgency. Such powers cannot be lightly
resorted to except in case of real urgency enabling the
Government to take immediate possession of the land E
proposed to be acquired for public purpose. A public
purpose, however laudable it may be, by itself is not
sufficient to take .aid of Section 17 to use this extraordinary
power as use of such power deprives a landowner of his
right in relation to immovable property to file objections
for the proposed acquisition and it also dispenses with
F
the inquiry under Section 5-A of the Act. The authority
must have subjective satisfaction of the need for invoking
urgency clause under Section 17 keeping in mind the
nature of the public purpose, real urgency that the situation
demands and the time factor i.e. whether taking G
possession of the property can wait for a minimum period
· within which the objections could be received from the
landowners and the inquiry under Section 5-A of the Act
could be completed. In other words, if power under Section
17 is not exercised, the very purpose for which the land is H
426 SUPREME COURT REPORTS (2011] 8 S.C.R.
A being acquired urgently would be frustrated or defeated.
Normally urgency to acquire a land for public purpose does
not arise suddenly or overnight but sometimes such
urgency may arise unexpectedly, exceptionally or
extraordinarily depending on situations such as due to
B earthquake, flood or some specific time-bound project
where the delay is likely to render the purpose nugatory
or infructuous. A citizen's property can be acquired in
accordance with law but in the absence of real and
genuine urgency, it may not be appropriate to deprive an
c aggrieved party of a fair and just opportunity of putting
forth its objections for due consideration of the acquiring
authority. While applying the urgency clause, the State
should indeed act with due care and responsibility.
Invoking urgency clause cannot be a substitute or support
for the laxity, lethargy or lack of care on the part of the
D
State administration.
(emphasis supplied)
42. In Esso Fabs Private Limited vs. State of Haryana
E (supra), the Court again dealt with the question whether the
State was justified in invoking Section 17(1) and 17(4) and
dispensing with the inquiry under Section 5-A and held:
"53. Section 17, no doubt, deals with special situations
and exceptional circumstances covering cases of "urgency"
F and "unforeseen emergency". In case of "urgency" falling
under sub-section ( 1) of Section 17 or of "unforeseen
emergency" covered by sub-section (2) of Section 17,
special powers may be exercised by appropriate
Government but as held by a three-Judge Bench decision
G before more than four decades in Nandeshwar Prasad·
and reiterated by a three-Judge Bench decision in
Mukesh Hans, even in such cases, inquiry and hearing of·
objections under Section 5-A cannot ipso facto be
dispensed with unless a notification under sub-section (4)
H of Section 17 of the Act is issued. The legislative scheme-
- /_/-_:----
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 427
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
· is amply clear which merely enables the appropriate A
Government to issue such notification under sub-section
(4) of Section 17 of the Act dispensing with inquiry under
Section 5-A if the Government intends to exercise the
said power. The use of the expression "may" in sub-
section (4) of Section 17 leaves no room of doubt that it B
is a discretionary power of the government to direct that
the provisions of Section 5-A would not apply to such
cases covered by sub-section (1) or (2) of Section 17 of
the Act.
54. In our opinion, therefore, the contention of learned C
counsel for the respondent authorities is not well founded
and cannot be upheld that once a case is covered by sub-
s_ection (1) or (2) of Section 17 of the Act, sub-section (4)
of Section 17 would necessarily apply and there is no
question of holding inquiry or hearing objections under D
Section 5-A of the Act. Acceptance of such contention or
upholding of this argument will make sub-section (4) of
Section 17 totally otiose, redundant and nugatory."
(emphasis supplied) E
43. In Babu Ram v. State of Haryana (2009) 10 SCC 115,
this Court reversed the judgment of the High Court and quashed
the notification issued by the State Government under Section
4 read with Section 17(1) and 17(4) for the acquisition of land
for construction of sewage treatment plant. After noticing the F
judgments in State of Punjab v. Gurdial Singh (supra), Om
Prakash v. State of U.P. (supra) and Union of India v. Krishan
Lal Arneja (supra), the Court observed:
"As indicated hereinabove in the various cases cited by G
Mr.Pradip Ghosh and, in particular, the decision in Krishan
Lal Arneja case, in which reference has been made to the
observations made by this Court in Om Prakash case, it
has been emphasized that a right under Section 5-Ais not
merely statutory but also has the flavour of fundamental H
428 SUPREME COURT REPORTS [2011) 8 S.C.R.
A rights under Articles 14 and 19 of the Constitution. Such
observations had been made in reference to an
observation made in the earlier decision in Gurdial Singh
case and keeping in mind the fact that right to property was
no longer a fundamental right, an observation was made
s that even if the right to property was no longer a
fundamental right, the observations relating to Article 14
would continue to apply in full force with regard to Section
5-A of the LA Act."
44. In Anand Singh v. State of U.P. (supra), the two-Judge
C Bench considered the question whether the State Government
was justified in invoking Section 17(4) for the acquisition of land
for residential colony to be constructed by Gorakhpur
Development Authority,. Gorakhpur. The Court noted that
notifications under Section 4(1) read with Section 17(1) and
D 17(4) were issued on November 23, 2003 and February 20,
2004 and declaration under Section 6 was issued on
December 24, 2004, referred to 16 judicial precedents
including those noticed hereinabove and held:
E "The exceptional and extraordinary power of doing away
with an enquiry under Section 5-A in a case where
possession of the land is required urgently or in an
unforeseen emergency is provided in Section 17 of the Act.
Such power is not a routine power and save
F 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
G
apply its mind before it dispenses with enquiry under
Section 5-A on the aspect whether the urgency is of such
a nature that justifies elimination of summary enquiry under
Section 5-A.
H A repetition of the statutory phrase in the notification that
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 429
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
the State Government is satisfied that the land specified A
in the notification is urgently needed and the provision
contained in Section 5-A shall not apply, though may
initially raise a presumption in favour of the Government
that prerequisite conditions for exercise of such power
have been satisfied, but such presumption may be B
displaced by the circumstances themselves having no
reasonable nexus with the purpose for which the power has
been exercised. Upon challenge being made to the use
of power under Section 17, the Government must produce
appropriate material before the Court that the opinion for c
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.
It is true that power conferred upon the Government under
Section 17 is administrative and its opinion is entitled to D
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.
E
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 F
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 I persons interested may not be considered. G
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 realizing that an important and
valuable right of the person interested in the land is being H
430 SUPREME COURT REPORTS [2011] 8 S.C.R
taken away anc:J with some effort enquiry could always be
completed expeditiously. ·
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
B
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 viz.
Narayan Govind Gavate and Pista Devi. In Om Prakash
this Court held that the decision in Pista Devi must be
c confined to the fact situation in those days when it was
rendered and the two-Judge Bench could not have laid
down a proposition contrary to the decision in Narayan
Govind Gavate. We agree.
D 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
E delay will have material bearing on the question of
invocation of urgency power, particularly in a situation
where no material has been placed by the appropriate
Government before the Court justifying that urgency was
of such nature that necessitated elimination of enquiry
F under Section 5-A."
(emphasis supplied}
45. In Civil Appeal No.2334 of 2011, Dev Sharan v. State
of U.P., decided on March 7, 2011, the acquisition of land for
G construction of district jails was quashed on the ground that
there was no valid ground or justification to exclude the
application of Section 5-A of the Act and it was observed:
" ... Admittedly, the Land Acquisition Act, a pre-
Constitutional legislation of colonial vintage is a drastic law,
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 431
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
being expropriatory in nature as it confers on the State a A
power which affects person's property right. Even though
right to property is no longer fundamental and was never
a natural right, and is acquired on a concession by the
State, it has to be accepted that without right to some
property, other rights become illusory. This Court is B
considering these questions, especially, in the context of
some recent trends in land acquisition. This Court is of the
opinion that the concept of public purpose in land
acquisition has to be viewed from an angle which is
consistent with the concept of a welfare State. c
The concept of public purpose cannot remain static for all
time to come. The concept, even though sought to be
defined under Section 3(f) of the Act, is not capable of any
precise definition. The said definition, having suffered
several amendments, has assumed the character of an D
inclusive one. It must be accepted that in construing public
purpose, a broad and overall view has to be taken and the
focus must be on ensuring maximum benefit to the largest
number of people. Any attempt by the State to acquire land
by promoting a pubic purpose to benefit a particular group E
of people or to serve any particular interest at the cost of
the interest of a large section of people especially of the
common people defeats the very concept of public
purpose. Even though the concept of public purpose was
introduced by pre-Constitutional legislation, its application F
must be consistent with the constitutional ethos and
especially the chapter under Fundamental Rights and also
the Directive Principles.
In construing the concept of public purpose, the mandate
of Article 13 of the Constitution that any pre-constitutional G
law cannot in any way take away or abridge rights
conferred under Part-Ill must be kept in mind. By judicial
interpretation the contents of these Part Ill rights are
constantly expanded. The meaning of public purpose in
H
432 SUPREME COURT REPORTS [2011] 8 S.C.R.
A acquisition of land must be judged on the touchstone of
this expanded view of Part-Ill rights. The open-ended nature
of our Constitution needs a harmonious reconciliation
between various competing principles and the
overhanging shadows of socio-economic reality in this
B country.
Therefore, the concept of public purpose on this broad
horizon must also be read into the provisions of
emergency power under Section 17 with the consequential
dispensation of right of hearing under Section 5A of the
c said Act. The Courts must examine these questions very
carefully when little Indians lose their small property in the
name of mindless acquisition at the instance of the State.
If public purpose can be satisfied by not rendering
common man homeless and by exploring other avenues
D of acquisition, the Courts, before sanctioning an
acquisition, must in exercise of its power of judicial review,
focus its attention on the concept of social and economic
justice. While examining these questions of public
importance, the Courts especially the Higher Courts,
E cannot afford to act as mere umpires. "
46. To be fair to the respondents, we may also notice the
judgments in which the decision of the State to invoke Section
17(1) and/or 17(4) has been upheld. In State of U.P. v. Pista
F Devi (supra), this Court examined the justification of invoking
Section 17(1) and 17(4) of the Act for the acquisition of over
662 Bighas land situated in village Mukarrabpur, District Meerut
for providing housing accommodation. The two-Judge Bench
distinguished the three-Judge Bench judgment in Narayan
Govind Gavate v. State of Maharashtra (supra), by observing
G that after that decision, population of India had gone up by
hundreds of millions and it was 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.
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 433
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
47. In Rajasthan Housing Board v. Shri Kishan (supra), A
this Court set aside the judgment of the majority of Full Bench · 1 ·
of the High Court, which had quashed the acquisition of2570
bighas land by the State Government by invoking Sections
17(1) and 17(4) of the Act for the benefit of appellant Rajasthan
Housing Board and observed: B
"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 C
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 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 0
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 other material also
upon which the Government had formed the said
satisfaction viz., that in view of the time-bound programme E
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 entire scheme and F
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 G
it examine the material 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."
H
434 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 48. In Chameli Singh v. State of U.P. (supra), the three-
Judge Bench upheld the acquisition of land under Sections 17
(1A) and 17(4) by observing that the problem of providing
houses to the dalits, tribes and poor needed emergency
measures and so long as the problem is not solved and the
B need of that segment of the society is not fulfilled, the urgency
continues to subsist.
49. In First Land Acquisition Collector v. Nirodhi Prakash
Gangoli (2002) 4 SCC 160, the Court upheld the acquisition
C of land for Calcutta Medical College under Section 17(1) and
17(4) and observed:
"By no stretch of imagination, exercise of power for
acquisition can be held to be mala fide, so long as the
purpose of acquisition continues and as has already been
D stated, there existed emergency to acquire the premises
in question. The premises which were under occupation
of the students of National Medical College, Calcutta, were
obviously badly needed for the College and the
appropriate authority having failed in their attempt earlier
E twice, the orders having been quashed by the High Court,
had taken the third attempt of issuing notification under
Sections 4(1) and 17(4) of the Act, such acquisition cannot
be held to be mala fide and, therefore, the conclusion of
the Division Bench in the impugned judgment that the
F acquisition is mala fide, must be set aside and we
accordingly set aside the same."
50. In Tika Ram v. State of Uttar Pradesh (2009) 10 SCC
689, the two-Judge Bench mainly considered the question$
relating to constitutional validity of the Uttar Pradesh Act nos.
G 8of1974 and 5of1991 by which amendments were made in
Section 17 of the Act. An ancillary question considered by the
Court was whether the State Government was justified in
invoking the urgency provision. The Bench referred to some of
the precedents on the subject and refused to quash the
H acquisition by observing that the acquired land has already
SRI RADHY SHYAM (0) THROUGH LRS. & ORS. v. 435
STATE QF U.P. & ORS. [G.S. SINGHVI, J.]
been utilized for construction of houses by third parties.
51. In Nand ~ishore Gupta v. State of Uttar Prade$h
(2010) 10 sec 282, the acquisition of land for construction of
Yamuna Expressway was upheld and challenge to the decision
of the· State Government to dispense with the inquiry was B
negatived by making the following observations:
"We have deliberately quoted the above part of the High
Court judgment only to show the meticulous care taken by
the High Court in examining as to whether there was
material before the State Government to dispense with the C
enquiry under Section 5-A of the Act. We are completely
convinced that there was necessity in this Project
considering the various reasons like enormousness of the
Project, likelihood of the encroachments, number of
appellants who would have required to be heard and the D
time taken for that purpose, and the fact that the Project
had lingered already from· 2001 till 2008. We do not see
any reason why we should take a different view than what
is taken by the High Court."
E
52. What is important to be noted is that in none of the
aforementioned judgments, the Court was called upon to
examine the legality and/or justification of the exercise of power
under Section 17(1) and/or 17(4) for the acquisition of land for
residential, commercial or industrial purpose. In State of U.P.
v. Pista Devi (supra), Rajasthan Housing Board v. Shri Kishan
F
(supra) and Chameli Singh v. State of U.P. (supra), the
invoking of urgency provision contained in Section 17(1) and
exclusion of Section 5-A was approved by the Court keeping
in view the acute problem of housing, which was perceived as
a national problem and for the solution of which national housing G
policy was framed and ·the imperative of providing cheaper
s~elter to dalits,. tribals and other disadvantaged sections of the
society. In First Land Acquisition Collector v. Nirodhi Prakash
Gangoli (supra), the exercise of power under Section 17 was
found to be justified because the land was already in the H
436 SUPREME COURT REPORTS [2011) 8 S.C.R.
A possession of the medical college and the earlier exercise
undertaken by the State for the acquisition of land got frustrated
due to intervention of the Court. The factor, which influenced this
Court to approve the judgment of the High Court in Tika Ram
v. State of Uttar Pradesh (supra) was that the acquired land
B had already been utilized for construction of houses by third
parties to whom the plots had been allotted and they were not
parties to the litigation. In Nand Kishore Gupta v. State of U.
P. (supra), the acquisition was upheld because the land was
urgently needed for construction of Yamuna Expressway and
c by the time the matter was decided by this Court, huge amount
had been spent on the project. As against this, the exercise of
power under Section 17(1) and/or 17(4) for the acquisition of
land for residential, industrial and commercial purposes,
construction of sewage treatment plant and district jails was held
0 to be legally impermissible in Raja Anand Brahma Shah v.
State of Uttar Pradesh (supra), Narayan Govind Gavate v.
State of Maharashtra (supra), Om Prakash v. State of U.P.
(supra), Union of India v. Krishan Lal Ameja (supra), Esso
Fabs Private Limited v. State of Haryana (supra), Babu Ram
E v. State of Haryana (supra) and Anand Singh v. State of Uttar
Pradesh (supra).
53. From the analysis of the relevant statutory provisions
and interpretation thereof by this Court in different cases, the
following principles can be culled out:
F
(i) Eminent domain is a right inherent in every sovereign
to take and appropriate property belonging to citizens for
public use. To put it differently, the sovereign is entitled to
reassert its dominion over any portion of the soil of the
State including private property without its owner's consent
G
provided that such assertion is on account of public
exigency and for public good. - Dwarkadas Shrinivas v.
Sholapur Spinning and Weaving Co. Ltd., Al R (1954) SC
119, Chiranjit Lal Chowdhuri v. Union offndia AIR (1951)
SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 437
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
(1995) Supp. (1) sec 596. A
(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 8
Educational Charitable Trust v. State of Haryana (2003)
5 SCC 622; State of Maharashtra v. B.E. Bil/imoria {2003)
7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal
No.2334 of 2011 decided on 7.3.2011.
(iii) Though, in exercise of the power of eminent domain, C
the Government can acquire the private property for public
purpose, it must be remembered that compulsory taking
of one's property is a serious matter. If the property
belongs to economically disadvantaged segment of the
society or people suffering from other handicaps, then the D
Court is not only entitled but is duty bound to scrutinize the
action/decision of the State with greater vigilance, care
and circumspection keeping in view the fact that the land
owner is likely to become landless and deprived of the only
source of his livelihood and/or shelter. E
(iv) The property of a citizen cannot be acquired by the
State and/or its agencies/instrumentalities without
complying with the mandate of Sections 4, 5-A and 6 of
the Act. A public purpose, however, laudable it may be
does not entitle the State to invoke the.urgency provisions F
because the same have the effect of depriving the owner
of his right to property without being heard. Only in a case
of real urgency, the State can invoke the urgency
provisions and dispense with the requirement of hearing
the land owner or other interested persons. G
(v) Section 17(1) read with Section 17(4) confers
extraordinary power upon the State to acquire private --
property without complying with the mandate of Section 5-
A. These provisions can be invoked only when the purpose H
438 SUPREME COURT REPORTS (2011] 8 S.C.R.
A of acquisition cannot brook the delay of even few weeks
or months. Therefore, before excluding the application of
Section 5-A, the concerned authority 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,
B frustrate the public purpose for which land is proposed to
be acquired.
(vi) The satisfaction of the Government on the issue of
urgency is subjective but is a condition precedent to the
exercise of power under Section 17(1) and the same can
c be challenged on the ground that the purpose for which the
private property is sought to be acquired is not a public
purpose at all or that the exercise of power is vitiated due
to mala fides or that the concerned authorities did not
apply mind to the relevant factors and the records.
D
(vii) The exercise of power by the Government under
Section 17(1) does not necessarily result in exclusion of
Section 5"A of the Act in terms of which any person
interested in land can file objection and is entitled to be
E 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,
F invoking of Section 17(4) is not a necessary concomitant
of the exercise of power under Section 17(1).
(viii) The acquisition of land for residential, commercial,
industrial or institutional purposes can be treated as an
acquisition for public purposes within the meaning of
G Section 4 but that, by itself, does not justify the exercise
of power by the Government under Section 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,
H industrial or institutional are·as usually take few years.
,. SRI RADHY SHYAM (D) THROUGH LRS. & ORS.' v. 439
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
Therefore, the private property cannot be acquired for such A
purpose by invoking the urgency provision contained in
Section 17(1). In any case, exclusion of the rule of audi
a/teram partem embodied in Section 5-A (1) and (2) is not
at all warranted in such matters.
B
(ix) If land is acquired f9r the benefit of private persons,
the Court should view the invoking of Section 17(1) and/
or 17(4) with suspicion I and carefully scrutinize the relevant
record before adjudicating upon the legality of such
acquisition.
c
54. The stage is now set for consideration of the issue
whether the State Government was justified in invoking the
urgency provision contained in Section 17(1) and excluding the
application of Section 5-A for.the acquisition of land for planned
industrial development of District Gautam Budh Nagar. A D
recapitulation of the facts ·shows that upon recefpt of proposal
from the Development Authority, the State Government issued
directions to the concerned authorities to take action for the
acquisition of land in different villages including village Makora.
The comments/certificate signed by three officers, which was E
submitted in the context of Government Order dated
21.12.2006 was accompanied by several documents including
proposal for the acquisition of land, preliminary inquiry report
submitted by the Amin, Land Acquisition, copies of khasra
khatauni and lay out plan, 10 per cent of the estimated F
compensation and a host of other documents. In the note dated
nil jointly signed by Deputy Chief Executive Officer, Greater
Noida, Collector, Gautam Budh Nagar and four other officers/
officials, the following factors were cited in justification of
invoking the urgency provisions:
G
(a) The area was notified under Uttar Pradesh Industrial
Areas Development Act, 1976 for planned
industrial development.
(b) If there is any delay in the acquisition of land then H
440 SUPREME COURT REPORTS (2011] 8 S.C.R.
A · the same is likely to be encroached and that will
adversely affect the concept of planned industrial
development of the district.
(c) Large tracts of .land of the nearby villages have
already been acquired and in respect of some
B
villages, the acquisition proceedings are under
progress.
(d) The Development Authority urgently requires land
for overall development, i.e. construction of roads,
c laying of sewerages, providing electricity, etc. in the
area.
(e) The development scheme has been duly approved
by . the State Government
r but the work has been
D stalled due to non-acquisition of land of village
Makora.
(f) Numerous reputed and leading industrial units of the
country want to invest in the State of Uttar Pradesh
and, therefore, it is extremely urgent and necessary
E that land is acquired immediately.
(g) If land is not made available to the incoming
leading and reputed industrial concerns of the
country, then they will definitely establish their units
F in other States and if this happens, then it will
adversely affect employment opportunities in the
State and will also go against the investment policy
of the Government.
(h) If written/oral objections are invited from the farmers
G and are scrutinized, then it will take unprecedented
long time and disposal thereof will hamper planned
development of the area.
(i) As per the provisions of the Act, there shall be at
H least one year's time gap between publication of
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 441
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
the notifications under Sections 4 and 17 and A
Section 6.
55. In our view, the above noted factors do not furnish
legally acceptable justification for the exercise of power by the
State Government under Section 17(1) because the acquisition 8
is primarily meant to cater private interest in the name of
industrial development of the district. It is neither the pleaded
case of the respondents nor any evidence has been produced
before the Court to show that the State Government and/or
agencies/instrumentalities of the State are intending to establish C
industrial units on the acquired land either by itself or through
its agencies/instrumentalities. The respondents have justified
the invoking of urgency provisions by making assertions, which
are usually made in such cases by the executive authorities i.e.
the inflow of funds in the State in the form of investment by
private entrepreneurs and availability of larger employment D
opportunities to the people of the area. However; we do not find
any plausible reason to accept this tailor-made justification for
approving the impugned action which has resulted in depriving
the appellants' of their constitutional right to property. Even if
planned industrial development of the district is treated as E
public purpose within the meaning of Section 4, there was no
urgency which could justify the exercise of power by the State
Government under Section 17(1) and 17(4). The objective of
industrial development of an area cannot be achieved by
pressing some buttons on computer screen. It needs lot of F
deliberations and planning keeping in view various scientific
and technical parameters and environmental concerns. The
private entrepreneurs, who are desirous of making investment
in the State, take their own time in setting up the industrial units.
Usually, the State Government and its agencies/ G
instrumentalities would give them two to three years' to put up
their factories, establishments etc. Therefore, time required for
ensuring compliance of the provisions contained in Section S-
A cannot, by any stretch of imagination, be portrayed as delay
which will frustrate the purpose of acquis.ition. In this context, it H
442 SUPREME COURT REPORTS (2011] 8 S.C.R.
A is apposite to note that the time limit for filing objection under
Section 5-A (1) is only 30 days from the date of publication of
the notification under Section 4(1 ). Of course, in terms of sub-
section (2), the Collector is required to give opportunity of
hearing to the objector and submit report to the Government
B after making such further inquiry, as he thinks necessary. This
procedure is likely to consume some time, but as has been well .
said, "Principles of natural justice are to some minds
burdensome but this price-a small price indeed-has to be paid
if we desire a society governed by the rule of law."
c 56. In this case, the Development Authority sent proposal
some time in 2006. The authorities up to the level of the
Commissioner completed the exercise of survey and
preparation of documents by the end of December, 2006 but
it took one year and almost three months to the State
D Government to issue notification under Section 4 read with
Section 17(1) and 17(4). If this much time was consumed
between the receipt of proposal for the acquisition of land and
issue of notification, it is not possible to accept the argument
that four to five weeks within which the objections could be filed
E under sub-section (1) of Section 5-A and the time spent by the
Collector in making inquiry under sub-section (2) of Section 5-
A would have defeated the object of acquisition.
57. The apprehension of the respondents that delay in the
F acquisition of land will lead to enormous encroachment is totally
unfounded. It is beyond the comprehension of any person of
ordinary prudence to think that the land owners would encroach
their own land with a view to frustrate the concept of planned
industrial development of the district.
G 58. The perception of the respondents that there should
be atleast one year's time gap between the issue of
notifications under Sections 4 and 6 is clearly misconceived.
The time limit of one year specified in clause (ii)) of the proviso
to Section 6(1) is the outer limit for issue of declaration. This
H necessarily means that the State Government can complete the
'SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 443
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
exercise under Sections 5-A and 6 in a shorter period. A
59. The only possible conclusion which can be drawn from
the above discussion is that there was no real and substantive
urgency which could justify invoking of the urgency provision
under Section 17(1) and in any case, there was no warrant to
8
exclude the application of Section 5-A which, as mentioned
above, represent the statutory embodiment of the rule of audi
alteram partem.
60. We also find merit in the appellants' plea that the
acquisition of their land is vitiated due to violation of the doctrine C
of equality enshrined ih Article 14 of the Constitution. A reading
of the survey report shows that the committee constituted by
the State Government had recommended release of land
measuring 18.9725 hectares. Many parcels of land were
released from acquisition because the land owners had already D
raised constructions and were using the same as dwelling units;
A large chunk of land measuring 4.3840 hectares was not
acquired apparently because the same belong to an ex-
member of the legislative assembly. The appellants had also
raised constructions on their land and were using the same for E
residential and agricultural purposes. Why their land was not
left out from acquisition has not been explained in the counter
affidavit filed by the respondents. The High Court should have
treated this as sufficient for recording a finding that the
respondents had adopted the policy of pick and choose in F
acquiring some parcels of land and this amounted to violation
of Article 14 of the Constitution. Indeed it has not been pleaded
by the respondents that the appellants cannot invoke the
doctrine of ~quality because the other parcels of land were
illegally left out from acquisition.
G
61. The argument of the learned senior counsel for the
respondents that the Court may not annul the impugned
acquisition because land of other villages had already been
, acquired and other land owners of village Makara have not
come forward to challenge the acquisition of their land cannot H
'
444 SUPREME COURT REPORTs [2011) 8 S.C.R.
A be entertained and the Court cannot refuse to protect the legal
and constitutional rights of the appellants merely because the
others have not come forward to challenge the illegitimate
exercise of power by the State Government. It is quite possible
that others may have, due to sheer poverty, ignorance and
B similar handicaps not been able to avail legal remedies for
protection of their rights, but that cannot be made basis to deny
what is due to the appellants.
62. In the result, the appeal is allowed. The impugned order
is set aside and the writ petition filed by the appellants is
C allowed. Respondent No.1 is directed to pay cost of Rs.
5,00,000/- to the appe.llants for forcing unwarranted litigation on
them. It is, however, made clear that the respondents shall be
free to proceed from the stage of Section 4 notification and take
appropriate action after complying with Section 5-A(1) and (2)
D of the Act. It is needless to say if the appellants feel aggrieved
by the fresh exercise undertaken by the State Government then
they shall be free to avail appropriate legal remedy.
B.B.B. Appeal allowed.
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