UNION OF INDIA AND ANOTHERversusMOHIUDDIN MASOOD AND OTHERS

696                       [2019]
               SUPREME COURT     10 S.C.R. 696
                              REPORTS                      [2019] 10 S.C.R.


A                    UNION OF INDIA AND ANOTHER
                                        v.
                   MOHIUDDIN MASOOD AND OTHERS
                         (Civil Appeal No. 6419 of 2019)
B                              AUGUST 19, 2019
          [ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
             Land Acquisition Act, 1894: ss.5A, 6, 17 – Request made by
      ITBP for acquisition of land for establishing Battalion Headquarter
      of ITBP in view of increase in counter Insurgency Operations, Law
C
      and Order duties of ITBP, VVIP security duties and Disaster
      Management Operations – Urgent acquisition of land – High Court
      held that there were no justifiable reasons to invoke the urgency
      clause and to dispense with the enquiry u/s.5A of the Act – On
      appeal, held: For establishing Battalion headquarter, a large chunk
D     of land approximately 72 to 75 acres of land was required – Such a
      huge land was required to be first identified at suitable places –
      Some time is bound to be consumed between the proposal and
      issuance of the notification under s.4 of the Act – The said aspect
      was not at all considered by the High Court – Therefore, merely
      that some time was taken in identifying the land and in issuing actual
E
      s.4 notification, High Court was not justified in observing that there
      was no urgency at all and/or there were no grounds to invoke the
      urgency clause – There was a real urgency and, therefore, urgency
      clause and s.17 was rightly invoked dispensing with the enquiry
      under s.5A of the Act.
F
            Land Acquisition Act, 1894: Acquisition of large chunk of
      land for establishing ITBP Battalion Headquarters – So far as
      respondent nos.1 and 2 original writ petitioners were concerned,
      out of the total land acquired, they were the owners/tenure holders
      of area 1.138 hectares, 1.2800 hectares and 0.2970 hectare only –
G     The total land acquired was 28.1398 hectares and other land owners
      did not question the acquisition – Therefore, High Court ought not
      to have set aside the notifications under ss.4 and 6 respectively
      which were not under challenge by the other land owners except
      respondent nos.1 and 2.
H
                                       696
UNION OF INDIA AND ANOTHER v. MOHIUDDIN MASOOD                          697
                  AND OTHERS

      Land Acquisition Act, 1894: s.17(4) – Non-compliance of           A
s.17(4) alleged – In the counter affidavit of Tehsildar, it was
specifically stated that after the notification under s.4 of the Act
was issued, the ITBP deposited the estimated amount of compensation
in the year 2009/2010 itself and the land owners/tenure holders
were served with the notice to withdraw and/or take 80% of the
                                                                        B
estimated amount of compensation but they refused to take the
compensation – Therefore, thereafter it was not open for the original
writ petitioners to make the grievance that they were not paid any
compensation – Therefore, it cannot be said that there was non-
compliance of s.17(4) of the Act.
      Allowing the appeal, the Court                                    C

       HELD: 1. The High Court failed to appreciate and consider
the fact that there was a time gap of only three months between
the notification under Section 4 and notification under Section 6
respectively of the Act. There was not much delay in considering
the request made by the ITBP to acquire the land. Right from            D
the very beginning the ITBP requested to acquire the land
urgently as the land was urgently required by the ITBP to establish
Battalion headquarter due to increase in Counter Insurgency
Operations, Law and order duties of ITBP and Disaster
Management Operations. For establishing such Battalion                  E
headquarter, a large chunk of land approximately 72 to 75 acres
of land was required. Such a huge land was required to be first
identified at suitable places. Therefore, some time is bound to
be consumed between the proposal and issuance of the
notification under Section 4 of the Act. Therefore, merely that
some time was taken in identifying the land and in issuing actual       F
Section 4 notification, the High Court was not justified in
observing that there was no urgency at all and/or there were no
grounds to invoke the urgency clause. [Paras 6.1, 6.2] [704-D-G]
      2. On the land in question total admeasuring 28.1398
hectares, there was a development on 90 to 95% of the land              G
acquired and 90 to 95% of the land has been put to use by the
ITBP. So far as respondent nos. 1 and 2 were concerned, out of
the total land acquired, they were the owners/tenure holders of

                                                                        H
698            SUPREME COURT REPORTS                     [2019] 10 S.C.R.


A     plot nos. 2348 area 1.138 hectares, 2353 area 1.2800 hectares
      and 2354 area 0.2970 hectare only. The total land acquired was
      28.1398 hectares and other land owners have not questioned the
      acquisition. Therefore also, the High Court ought not to have
      set aside the notifications under Sections 4 and 6 respectively of
      the Act which were with respect to the acquisition of large chunk
B
      of land admeasuring 28.1398 hectares, which was not under
      challenge by the other land owners except respondent nos. 1
      and 2 original writ petitioners. [Para 6.3] [705-C-E]
            3. In the counter affidavit filed by the Tehsildar before the
      High Court, it was specifically stated that after the notification
C     under Section 4 of the Act was issued, the ITBP has deposited
      10% of estimated compensation amounting to Rs. 3026675.00
      by treasury challan dated 17.06.2009, 70% of estimated
      compensation amounting to Rs. 23674225.00 by treasury challan
      dated 05.01.2009 and rest of 20% of estimated compensation
D     amounting to Rs. 6053350.00 by treasury challan dated
      22.01.2010. In the counter affidavit, it is also stated that notice
      dated 16.03.2010 was issued to the tenure holders to take 80%
      of the estimated amount of compensation but they did not come
      to take the compensation. [Para 6.4] [705-F-H; 706-A]
E           Radhy Shyam v. State of U.P. (2011) 5 SCC 553 : [2011]
            8 SCR 359 ; Sahara India Commercial Corporation
            Limited v. State of Uttar Pradesh (2017) 11 SCC 339 ;
            Prabhawati v. State of Bihar (2014) 13 SCC 721 – held
            inapplicable.

F                            Case Law Reference
      [2011] 8 SCR 359               held inapplicable       Para 3.2
      (2017) 11 SCC 339              held inapplicable       Para 3.2
      (2014) 13 SCC 721              held inapplicable       Para 5.2
G           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6419
      of 2019.
            From the Judgment and Order dated 10.04.2017 of the High
      Court of Judicature at Allahabad in Civil Misc. Writ Petition bearing
      Writ-C No. 2069 of 2010.
H
UNION OF INDIA AND ANOTHER v. MOHIUDDIN MASOOD                                 699
            AND OTHERS [M. R. SHAH, J.]

      Ms. Madhavi Divan, ASG, Ms. Manjula Gupta, Ms. Ranjeeta,                 A
Ms. Pooja Dhar, B. V. Balaram Das, Ms. Ranjeeta Rohatgi, Advs. for
the Appellants.
     Ajit Kumar Sinha, Sr. Adv., Yunus Malik, Ms. Khushali,
Ms. Rajeeta Raj, Samir Malik, Murari Kumar, Pradeep Kumar Sharma,
Ms. Garima Prashad, Advs. for the Respondents.                                 B
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
      1. Delay condoned. Leave granted.
        2. Feeling aggrieved and dissatisfied with the impugned judgment       C
and order dated 10.04.2017 passed by the High Court of Judicature at
Allahabad in Writ Petition No. 2069 of 2010, by which the High Court
has allowed the said writ petition and has quashed and set aside the
notifications issued under Sections 4 & 6 respectively of the Land
Acquisition Act, 1894 (hereinafter referred to as the ‘Act’) with respect      D
to the land in question on the ground that the urgency clause was illegally
and wrongly invoked, the Union of India and the acquiring body, i.e.,
Director General of ITBP have preferred the present appeal.
       3. That a request for providing about 75 acres of land for
establishing one Battalion Headquarter of ITBP at Kanpur Nagar was
                                                                               E
made to the Government of Uttar Pradesh by the Director, Police
Finance, ITBP as due to increasing Counter Insurgency Operations, Law
and order duties of ITBP, VVIP security duties and Disaster Management
Operations, it was decided to establish Battalion headquarter of ITBP at
Kanpur Nagar, Uttar Pradesh and it was requested to urgently acquire
the land by finding out suitable pieces of land. It appears that thereafter    F
on 5.2.2009, the Special Secretary, State of Uttar Pradesh wrote a letter
to the District Magistrate, Kanpur Nagar and Lucknow for identifying
72 to 75 acres of land for being provided for establishment of the Battalion
headquarter of ITBP.
       3.1 That thereafter, notification under Section 4 of the Act came       G
to be issued on 2.9.2009 for urgent acquisition of the land in order to
facilitate the accommodation of the troops and for ITBP headquarter.
That immediately on issuance of notification under Section 4 of the Act,
respondent nos. 1 & 2 herein filed writ petition No. 54836 of 2009 before
the Allahabad High Court challenging the Section 4 notification. The
                                                                               H
700            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A     aforesaid petition came to be dismissed by the High Court as pre-mature
      vide order dated 3.11.2009. That thereafter the State Government issued
      notification under Section 6 of the Act invoking the urgency clause and
      invoking Section 17 of the Act, vide notification dated 11.12.2009 and
      directed the Collector to take possession of the land. That thereafter
      again and on issuance of notification under Section 6 of the Act on
B
      11.12.2009, respondent nos. 1 & 2 herein filed another writ petition No.
      2069 of 2010 before the Allahabad High Court. Before the High Court,
      number of submissions were made on merits as well as on invoking the
      urgency clause and dispensing with the procedure under Section 5A of
      the Act. The said writ petition was opposed by the appellants justifying
C     the invocation of urgency clause. It appears that thereafter the State
      Government acquired the land in the month of December, 2010 by
      adjudging the amount of compensation to the tune of Rs.6,33,09,176.41
      inclusive of solatium for the land in question. 3.2That by the impugned
      judgment and order and following and relying upon the decision of this
      Court in the case of Radhy Shyam v. State of U.P., reported in (2011)
D
      5 SCC 553, the High Court has observed and held that the State
      Government was not justified in invoking the urgency clause and
      dispensing with the enquiry under Section 5 A of the Act. The High
      Court has observed and held that there was no immediate urgency and
      no facts existed before the State Government for invoking the power
E     under Section 17(1) and Section 17(4) of the Act and consequently has
      held the notifications under Section 4 & 6 of the Act respectively as bad.
      However, taking note of the development of the acquired land and
      investment of public money for development of acquired land running
      into crores of rupees, subsequent to the acquisition notifications, after
      considering and following the decision of this Court in the case of Sahara
F
      India Commercial Corporation Limited v. State of Uttar Pradesh,
      reported in (2017) 11 SCC 339, the High Court has observed and held
      that the notifications under Section 4 & 6 respectively of the Act are
      bad. The acquiring body should not return the possession of the land in
      question, however, the High Court has directed that the land owners be
G     paid the compensation under the provisions of the Right to Fair
      Compensation and Transparency in Land Acquisition & Rehabilitation
      and Re-Settlement Act, 2013 (hereinafter referred to as the ‘2013 Act’)
      and compensation to be determined on the basis of the date of the order
      passed by the High Court as the date of the acquisition notification, i.e.,
      22.12.2016.
H
UNION OF INDIA AND ANOTHER v. MOHIUDDIN MASOOD                                 701
            AND OTHERS [M. R. SHAH, J.]

       3.3 Feeling aggrieved and dissatisfied with the impugned judgment       A
and order passed by the High Court, holding and declaring Sections 4 &
6 notifications with respect to the land in question as bad by holding that
the invocation of the urgency clause and the provisions of Section 17(1)
and 17(4) of the Act were bad, the Union of India and another – ITBP
have preferred the present appeal.
                                                                               B
      4. Ms. Madhavi Divan, learned Additional Solicitor General has
appeared on behalf of the appellants and Shri Ajit Kumar Sinha, learned
Senior Advocate has appeared on behalf of respondent nos. 1 & 2
herein – original writ petitioners.
      4.1 Ms. Madhavi Divan, learned Additional Solicitor General has          C
vehemently submitted that in the facts and circumstances of the case
and considering the purpose for which the land in question was acquired,
the High Court has materially erred in observing and holding that there
existed no facts before the State Government for invoking the powers
under Section 17(1) and Section 17(4) of the Act.
                                                                               D
      4.2 It is further submitted by Ms. Madhavi Divan, learned
Additional Solicitor General that there was no delay at all in invoking the
urgency clause and issuance of the notification under Section 4 of the
Act by the State Government invoking the urgency clause.
        4.3 It is further submitted by Ms. Madhavi Divan, learned              E
Additional Solicitor General that the High Court has failed to appreciate
that the land was urgently required by the appellants, due to increase in
Counter Insurgency Operations, Law and order duties of ITBP, VVIP
security duties and Disaster Management Operations, there was urgent
need to establish Battalion headquarter of ITBP at Kanpur Nagar. It is
submitted that for establishing such Battalion headquarter approximately       F
72 to 75 acres of land was required and therefore it might have taken
some time in identifying the land, preparing the plan and thereafter issuing
the notification under Section 4 of the Act. It is submitted that the High
Court has held the invocation of the urgency clause bad on the ground
that there was much time gap between the proposal by the ITBP and              G
issuance of the notification under Section 4 of the Act. It is submitted
that while holding so, the High Court has not properly appreciated the
true and correct facts, more particularly the time taken from the proposal
till the issuance of the notification under Section 4 of the Act.

                                                                               H
702             SUPREME COURT REPORTS                           [2019] 10 S.C.R.


A            4.4 It is further submitted by Ms. Madhavi Divan, learned
      Additional Solicitor General that the High Court has failed to appreciate
      the fact that between notifications under Sections 4 & 6 respectively,
      the time gap was only three months, which clearly indicates that there
      was an urgency in the matter requiring dispensing with the enquiry under
      Section 5A of the Act. It is submitted that had the Section 5A compliance
B
      not been dispensed with, it would not have been possible to publish Section
      6 notification within three months.
             4.5 It is further submitted by Ms. Madhavi Divan, learned
      Additional Solicitor General that from the very beginning the land was
      required urgently for the aforesaid public purpose, more particularly for
C     establishment of the Battalion headquarter of ITBP and in the facts and
      circumstances of the case, there was no delay/inordinate delay in issuance
      of the notification under Section 4 of the Act. It is submitted that therefore
      the finding recorded by the High Court that no facts existed for invocation
      of the urgency clause cannot be sustained as the same is contrary to the
D     material on record.
             4.6 It is further submitted by Ms. Madhavi Divan, learned
      Additional Solicitor General that even the High Court has also wrongly
      observed in the impugned judgment and order that so far no award has
      been made by the Special Land Acquisition Officer with reference to
E     the notification under challenge. It is submitted that as such and in fact
      the adjudgment of the compensation was pronounced after the sanction
      of the District Magistrate on 27.12.2010 by the Land Acquisition Officer.
            4.7 Ms. Madhavi Divan, learned Additional Solicitor General has
      further submitted that in the facts and circumstances of the case, the
F     decisions relied upon by the learned counsel appearing on behalf of
      respondent nos. 1 & 2, more particularly the decision of this Court in the
      case of Radhy Shyam (supra) shall not be applicable to the facts of the
      case on hand, more particularly with respect to the public purpose for
      which the land is acquired.

G             4.8 Making the above submissions and further submitting that on
      the 95% of the land acquired, by now the development has already taken
      place and public money to the tune of crores of rupees have been spent,
      it is prayed to allow the present appeal.
            5. The present appeal is vehemently opposed by Shri Ajit Kumar
      Sinha, learned Senior Advocate on behalf of respondent nos. 1 & 2.
H
UNION OF INDIA AND ANOTHER v. MOHIUDDIN MASOOD                                  703
            AND OTHERS [M. R. SHAH, J.]

Taking us to various dates and events right from the date of proposal by        A
the ITBP till the notification under Section 6 of the Act was issued, it is
vehemently submitted by Shri Ajit Kumar Sinha, learned Senior Advocate
that in the facts and circumstances of the case, the High Court has
rightly observed and held that the State Government was not justified in
invoking the urgency clause and dispensing with the enquiry under Section
                                                                                B
5A of the Act.
       5.1 It is further submitted by Shri Ajit Kumar Sinha, learned Senior
Advocate that in fact invoking the urgency clause was not explained
and/or justified by the State Government and therefore considering the
material on record, the High Court has rightly observed that there was
no real and substantive urgency which could justify invoking the urgency        C
clause under Section 17(1) of the Act and excluding the application of
Section 5A of the Act.
       5.2 It is further submitted by Shri Ajit Kumar Sinha, learned Senior
Advocate that as held by this Court in catena of decisions that enquiry
under Section 5A of the Act is a valuable statutory right available to the      D
land owners and unless there are compelling circumstances warranting
invocation of the urgency clause under Section 17(1) of the Act, such
statutory right cannot be taken away. In support of his submission, learned
Senior Advocate appearing on behalf of respondent nos. 1 & 2 herein
has heavily relied upon the decisions of this Court in the cases of Radhy       E
Shyam (supra); Prabhawati v. State of Bihar, reported in (2014) 13
SCC 721; and Sahara India Commercial Corporation Limited
(supra).
       5.3 It is further submitted by Shri Ajit Kumar Sinha, learned Senior
Advocate that as such in the present case and by passing the impugned           F
judgment and order, the High Court has tried to strike the balance and
instead of directing to return the land acquired, the High Court has directed
to pay the compensation as per the provisions of the 2013 Act and the
compensation to be determined on the basis of the date of order as the
date of the acquisition notification, i.e., 22.12.2016.
                                                                                G
       5.4 It is further submitted by Shri Ajit Kumar Sinha, learned Senior
Advocate that even till date the land owners have not received any
compensation of the land acquired. It is submitted therefore that there
is a non-compliance of Section 17(4) of the Act.

                                                                                H
704             SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A           5.5 Making the above submissions, it is prayed to dismiss the
      present appeal.
            6. We have heard the learned counsel appearing on behalf of the
      respective parties at length.
              6.1 We have gone through and considered in detail the impugned
B     judgment and order passed by the High Court. We have also considered
      the chronological dates and events leading to the issuance of the
      notification under Section 4 of the Act and thereafter issuance of the
      notification under Section 6 of the Act invoking the urgency clause. At
      the outset, it is required to be noted that by the impugned judgment and
C     order the High Court has held invocation of urgency clause and invocation
      of Section 17 of the Act as bad by observing that there were no justifiable
      reasons to invoke the urgency clause and dispensing with the enquiry
      under Section 5A of the Act. However, considering the chronological
      list of dates and events and the object and purpose for which the land
      was sought to be acquired, we are of the opinion that the High Court has
D     materially erred in holding that invocation of the urgency clause was
      bad. The High Court has failed to appreciate and consider the fact that
      there was a time gap of only three months between the notification
      under Section 4 and notification under Section 6 respectively of the Act.
             6.2 Even there was not much delay in considering the request
E     made by the ITBP to acquire the land. Right from the very beginning
      the ITBP requested to acquire the land urgently as the land was urgently
      required by the ITBP to establish Battalion headquarter due to increase
      in Counter Insurgency Operations, Law and order duties of ITBP and
      Disaster Management Operations. It is required to be noted that for
F     establishing such Battalion headquarter a large chunk of land
      approximately 72 to 75 acres of land was required. Such a huge land
      was required to be first identified at suitable places. Therefore, some
      time is bound to be consumed between the proposal and issuance of the
      notification under Section 4 of the Act. The said aspect has not at all
      been considered by the High Court. Therefore, merely that some time
G     had been taken in identifying the land and in issuing actual Section 4
      notification, the High Court is not justified in observing that there was no
      urgency at all and/or there were no grounds to invoke the urgency clause.
      Therefore, in the facts and circumstances of the case and considering
      the material on record, we are of the opinion that the High Court has
H     erred in observing and holding that invocation of the urgency clause was
UNION OF INDIA AND ANOTHER v. MOHIUDDIN MASOOD                                  705
            AND OTHERS [M. R. SHAH, J.]

bad. We are more than satisfied that there was a real urgency and               A
therefore the urgency clause and Section 17 of the Act was rightly invoked
dispensing with the enquiry under Section 5A of the Act. Therefore, in
the facts and circumstances of the case, the decisions of this Court
relied upon by the learned Senior Advocate appearing on behalf of
respondent nos. 1 & 2, referred to hereinabove, shall not be applicable
                                                                                B
to the facts of the case on hand, more particularly in the relied upon
cases the acquisitions were either for private parties and/or companies
and in the present case the acquisition was for establishing ITBP Battalion
headquarter.
       6.3 It is also required to be noted that on the land in question total
admeasuring 28.1398 hectares (19.7548 + 8.3850 hectares = 28.1398               C
hectares) there is a development on 90 to 95% of the land acquired and
90 to 95% of the land has been put to use by the ITBP. It is also
required to be noted that so far as respondent nos. 1 & 2 herein are
concerned, out of the total land acquired, they were the owners/tenure
holders of plot nos. 2348 area 1.138 hectares, 2353 area 1.2800 hectares        D
and 2354 area 0.2970 hectare only. As observed hereinabove, the total
land acquired was 28.1398 hectares and other land owners have not
questioned the acquisition. Therefore also, the High Court ought not to
have set aside the notifications under Sections 4 & 6 respectively of the
Act which were with respect to the acquisition of large chunk of land
admeasuring 28.1398 hectares, which was not under challenge by the              E
other land owners except respondent nos. 1 & 2 herein – original writ
petitioners.
       6.4 Now so far as the submission on behalf of the original writ
petitioners that there is a non-compliance of Section 17(4) of the Act as
80% of the estimated amount of compensation was not deposited is                F
concerned, at this stage, counter affidavit filed by the Tehsildar before
the High Court is required to be considered. In the counter affidavit, it
has been specifically stated that after the notification under Section 4 of
the Act was issued, the ITBP has deposited 10% of estimated
compensation amounting to Rs.3026675.00 vide treasury challan dated             G
17.06.2009, 70% of estimated compensation amounting to Rs.23674225.00
vide treasury challan dated 05.01.2009 and rest of 20% of estimated
compensation amounting to Rs.6053350.00 vide treasury challan dated
22.01.2010. In the counter affidavit, it is also stated that notice dated
16.03.2010 was issued to the tenure holders to take 80% of the estimated
                                                                                H
706              SUPREME COURT REPORTS                           [2019] 10 S.C.R.


A     amount of compensation but they did not come to take the compensation.
      Therefore, it cannot be said that there is a non-compliance of Section
      17(4) of the Act and the tenure holders/land owners were not paid the
      80% estimated amount of compensation as required.
             6.5 Considering the aforesaid facts and circumstances of the case
B     and in the peculiar facts and circumstances of the case, we are of the
      opinion that the High Court is not justified in setting aside the notifications
      under Sections 4 & 6 respectively of the Act and/or observing and holding
      that the invocation of Section 17 of the Act and urgency clause was bad.
             7. Now so far as submission on behalf of the original writ petitioners
C     that they have not been paid any compensation is concerned, it is required
      to be noted and as observed hereinabove, in fact, ITBP had deposited
      the estimated amount of compensation in the year 2009/2010 itself and
      the land owners/tenure holders were served with the notice to withdraw
      and/or take 80% of the estimated amount of compensation but they
      refused to take the compensation. Therefore, thereafter it is not open
D     for the original writ petitioners to make the grievance that they have not
      been paid any compensation. Still, it will be open to them to withdraw
      the amount of compensation. At this stage, it is required to be noted that
      in the year 2010 itself, final award directing adjudgment of the
      compensation to the tune of Rs.63309176.41 inclusive of solatium was
E     published before that writ petition was filed and compensation was not
      accepted.
             8. In view of the above and for the reasons stated above, the
      present appeal is allowed. The impugned judgment and order passed by
      the High Court is hereby quashed and set aside. Consequently, the writ
F     petition filed before the High Court by respondent no. 1 & 2 herein
      stands dismissed. There shall be no order as to costs.


      Devika Gujral                                                    Appeal allowed.


G




H