REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2011

(Arising out of Special Leave Petition (C) No.8939/10

Dev Sharan & Ors. ...Appellant(s)

- Versus -

State of U.P. & Ors. ...Respondent(s)

With

CIVIL APPEAL NO. OF 2011

(Arising out of Special Leave Petition (C) No.10993/10

Babu Ram Dixit ...Appellant(s)

- Versus -

State of U.P. & Ors. ...Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. These appeals have been preferred from the

judgment and order of the High Court dated

1

25.11.2009 in Writ Petitions (Civil)

No.46457/2009.

3. The appellants challenge the acquisition of

their agricultural lands by the State of

Uttar Pradesh for the construction of the

district jail of Shahjahanpur. The

appellants themselves are bhumidar with

transferable rights and are residents of

village Murchha, tehsil Puwayan in the

district of Shahjahanpur, Uttar Pradesh.

4. The State of Uttar Pradesh vide its office

memorandum dated 25.10.2004 constituted a

committee under the Chairmanship of the

Hon’ble Minister of Revenue to suggest its

recommendations for transfer of prisons

situated in the congested areas of various

districts. After conducting its second and

final meeting on 10

th

January, 2005, the

said committee recommended to the State

Government the shifting of the district

2

jails from congested areas to outside the

city limits within the district. As per the

schedule, this shifting was to be done in

two phases:

1

st

phase

1. District Jail, Shahjahanpur;

2. District Jail, Azamgarh;

3. District Jail, Jaunpur; and

4. District Jail, Moradabad.

2

nd

phase

1. District Jail, Badaun;

2. District Jail, Varanasi;

3. District Jail, Barielly; and

4. District Jail, Muzaffarnagar.

5. The existing district jail of Shahjahanpur,

constructed in 1870, was one of the oldest

and required shifting to a new premises.

The Government case is that the district

jail is located in a densely populated area

of the city and is overcrowded, housing as

many as 1869 prisoners, while having a

capacity of only 511.

3

6. Thereafter, the State Government

constituted a committee under the

Chairmanship of Chief Secretary, Government

of U.P. vide office memorandum dated

12.9.2007 to evaluate and consider the

shifting of prisons identified to be

shifted in the first phase. Prisons in the

districts of Lucknow, Moradabad were added

to the list. This committee was also to

evaluate and recommend the means for

modernisation of existing old prisons. In

its meeting dated 10.10.2007 the committee

recommended that a Detailed Project Report

(DPR) be prepared by the Rajkiya Nirman

Nigam, and that acquisition of lands for

shifting of the prisons be done on a

priority basis.

7. These recommendations were accepted by the

State Government vide the approval of the

cabinet dated 7.12.2007. Following this

4

decision, the Director General of Prisons

(Administration and Reforms), Uttar

Pradesh, vide letter dated 04.06.2008,

requested the District Magistrate,

Shahjahanpur to send all the relevant

records to the State Government for

publication of notification under Sections

4(1) and 17 of the Land Acquisition Act,

1894 (hereinafter ‘the Act’). The land

suggested for such acquisition by the

Divisional Land Utility Committee was one

admeasuring 25.89 hectares (63.93 acres) in

village Morchha, tehsil Puwayan in the

district of Shahjahanpur.

8. Thereafter, the District Magistrate,

Shahjahanpur forwarded the proposal to the

Commissioner and Director, Directorate of

Land Acquisition (Revenue Board, Uttar

Pradesh), for the issuance of notifications

under Sections 4(1) and 17 of the Act,

5

which in turn approved of it and further

forwarded the recommendation to the State

Government, vide letter dated 2.07.2008.

9. Thus, the State Government issued

notifications under Sections 4(1) and 17 on

21.08.2008. However, the provisions of

Section 5A inquiry were dispensed with. The

State Government explained that this was

done in view of the pressing urgency in the

matter of construction of the jails.

10. Being aggrieved by the aforesaid

notifications, the appellants moved a writ

petition before the High Court under

Article 226 of the Constitution of India.

The High Court in its decision dated

25.11.2009 refused to interfere with the

selection of the site for the construction

of the jail premises on the ground that it

was not required to do so unless it found

6

the selection of the site was wholly

arbitrary. The High Court also approved the

invoking of emergency provisions under

Section 17 of the Act as per the guidelines

given in Essco Fabs Private Limited and

another vs. State of Haryana and another

(2009) 2 SCC 377. Having thus stated, the

High Court dismissed the writ petition.

11. Before this Court the appellants broadly

raised the following arguments:

1. Whether or not the State Government was

justified in acquiring the said pieces of

fertile agricultural land, when there were

alternative sites of unfertile banjar land

available?

2. Whether or not the State Government was

justified in dispensing with the inquiry

which is mandated to be conducted under

Section 5A of the Act, especially when one

year elapsed between the notifications

under Section 4 and the one under Section

6. They further stated that the High Court

had erred insofar as it upheld the factum

of urgency in the absence of a categorical

finding, an enquiry under Section 5A would

have been detrimental to public interest.

7

12. It was urged that it was clear from the

counter of the respondent that the

contemplation of a new prison was under

consideration of the State Government for

several years. Committee was formed, matter

was discussed at a leisurely pace at

various levels and there is no material

fact to justify the abridgement of the

appellants’ right of raising an objection

to acquisition and of a hearing under

Section 5A of the Act.

13. This Court finds a lot of substance in the

contentions of the appellants.

14. In connection with land acquisition

proceeding whenever the provision of

Section 17 and its various sub-sections

including Section 17(4) is used in the name

of taking urgent or emergent action and the

right of hearing of the land holder under

8

Section 5A is dispensed with, the Court is

called upon to consider a few fundamentals

in the exercise of such powers.

15. Admittedly, the Land Acquisition Act, a

pre-Constitutional legislation of colonial

vintage is a drastic law, being

expropriatory in nature as it confers on

the State 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 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

9

viewed from an angle which is consistent

with the concept of a welfare State.

16. 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

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

public purpose to benefit a particular

group 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

10

public purpose was introduced by pre-

Constitutional legislation, its application

must be consistent with the constitutional

ethos and especially the chapter under

Fundamental Rights and also the Directive

Principles.

17. In construing the concept of public

purpose, the mandate of Article 13 of the

Constitution that any pre-constitutional

law cannot in any way take away or abridge

rights conferred under Part–III must be

kept in mind. By judicial interpretation

the contents of these Part III rights are

constantly expanded. The meaning of public

purpose in acquisition of land must be

judged on the touchstone of this expanded

view of Part-III rights. The open-ended

nature of our Constitution needs a

harmonious reconciliation between various

competing principles and the overhanging

11

shadows of socio-economic reality in this

country.

18. 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 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

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

12

importance, the Courts, especially the

Higher Courts, cannot afford to act as mere

umpires. In this context we reiterate the

principle laid down by this Court in

Authorised Officer, Thanjavur and another

vs. S. Naganatha Ayyar and others reported

in (1979) 3 SCC 466, wherein this Court

held:

“……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 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

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 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.”

13

19. In other words public purpose must be

viewed through the prism of Constitutional

values as stated above.

20. The aforesaid principles in our

jurisprudence compel this Court to construe

any expropriartory legislation like the

Land Acquisition Act very strictly.

21. The judicial pronouncements on this aspect

are numerous, only a few of them may be

noted here.

22. In DLF Qutab Enclave Complex Educational

Charitable Trust vs. State of Haryana and

Ors. – (2003) 5 SCC 622, this Court

construed the statute on Town Planning Law

and held ”Expropriatory statute, as is well

known, must be strictly construed.” (See

para 41 page 635).

14

23. The same principle has been reiterated

subsequently by a three-Judge Bench of this

Court in State of Maharashtra and Anr. vs.

B.E. Billimoria and Ors. – (2003) 7 SCC 336

in the context of ceiling law. (See para 22

at page 347 of the report).

24. These principles again found support in the

decision of this Court in Chairman, Indore

Vikas Pradhikaran vs. Pure Industrial Coke

and Chemicals Ltd. and Ors. – (2007) 8 SCC

705, wherein this Court construed the

status of a person’s right to property

after deletion of Article 19(1)(f) from

Part III. By referring to various

international covenants, namely, the

Declaration of Human and Civic Rights, this

Court held that even though right to

property has ceased to be a fundamental

right but it would however be given an

15

express recognition as a legal right and

also as a human right .

25. While discussing the ambit and extent of

property right, this Court reiterated that

expropriatory legislation must be given

strict construction. (See para 53 to 57 at

pages 731 to 732 of the report)

26. In the background of the aforesaid

discussion, this Court proceeds to examine

the scope of a person’s right under Section

5A of the Act.

27. Initially, Section 5A was not there in the

Land Acquisition Act, 1894 but the same was

inserted long ago by the Land Acquisition

(Amendment) Act, 1923 vide Section 3 of Act

38 of 1923.

16

28. The history behind insertion of Section 5A,

in the Act of 1894 seems to be a decision

of the Division Bench of Calcutta High

Court in J.E.D. Ezra vs. The Secretary of

State for India and ors reported in 7 C. W.

N. 249. In that case, the properties of

Ezra were sought to be acquired under the

pre amended provision of the Act for

expansion of the offices of the Bank of

Bengal. In challenging the said

acquisition, it was argued that the person

whose property is going to be taken away

should be allowed a hearing on the

principles of natural justice. However the

judges found that there was no such

provision in the Act. (see p. 269)

29. In order to remedy this shortcoming in the

Act of 1894, an amendment by way of

incorporation of Section 5A was introduced

on 11

th

July, 1923. The Statement of Objects

17

and Reasons for the said Amendment is as

follows:

“The Land Acquisition Act I of 1894 does

not provide that persons having an

interest in land which it is proposed to

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 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.”

(Gazette of India, Pt. V, dated 14

th

July,

1923, page 260)

30. The said amendment was assented to by the

Governor General on 5

th

August, 1923 and

came into force on 1

st

January, 1924.

31. The importance and scheme of Section 5A was

construed by this Court in several cases.

As early as in 1964, this Court in

Nandeshwar Prasad and Ors. vs. U.P.

18

Government and Ors. Etc. – AIR 1964 SC 1217

speaking through Justice K.N. Wanchoo (as

His Lordship then was) held “…The right to

file objections under Section 5A is a

substantial right when a person’s property

is being threatened with acquisition and we

cannot accept that that right can be taken

away as if by a side-wind…..” In that case

the Court was considering the importance of

rights under Section 5A vis-à-vis Section

17(1) and Section 17(1)(A) of the Act. (See

para 13 at page 1222 of the report).

32. The same view has been reiterated by

another three-Judge Bench decision of this

Court in Munshi Singh and Ors. vs. Union of

India – (1973) 2 SCC 337. In para 7 of the

report this Court held that Section 5A

embodies a very just and wholesome

principle of giving proper and reasonable

opportunity to a land loser of persuading

19

the authorities that his property should

not be acquired. This Court made it clear

that declaration under Section 6 has to be

made only after the appropriate Government

is satisfied on a consideration of the

report made by the Collector under Section

5A. The Court, however, made it clear that

only in a case of real urgency the

provision of Section 5A can be dispensed

with (See para 7 page 342 of the report).

33. In Hindustan Petroleum Corporation Limited

vs. Darius Shahpur Chennai and ors., (2005)

7 SCC 627, this Court held that the right

which is conferred under Section 5A has to

be read considering the provisions of

Article 300-A of the Constitution and, so

construed, the right under Section 5A

should be interpreted as being akin to a

Fundamental Right. This Court held that the

same being the legal position, the

20

procedures which have been laid down for

depriving a person of the said right must

be strictly complied with.

34. In a recent judgment of this Court in Essco

Fabs (supra), (2009) 2 SCC 377, this Court,

after considering previous judgments as

also the provisions of Section 17 of the

Act held:

“41. Whereas sub-section (1) of Section 17

deals with cases of “urgency”, sub-section (2)

of the said section covers cases of “sudden

change in the channel of any navigable river or

other unforeseen emergency”. But even in such

cases i.e. cases of “urgency” or “unforeseen

emergency”, enquiry contemplated by Section 5-A

cannot ipso facto be dispensed with which is

clear from sub-section (4) of Section 17 of the

Act.”

35. This Court, therefore, held that once a

case is covered under sub-section (1) or

(2) of Section 17, sub-section (4) of

Section 17 would not necessarily apply.

“54. In our opinion, therefore, the contention

of learned counsel for the respondent

authorities is not well founded and cannot be

21

upheld that once a case is covered by sub-

sections (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 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.”

36. This Court also held that in view of the

ratio in Union of India vs. Mukesh Hans,

(2004) 8 SCC 14, sub-section (4) of Section

17 cannot be pressed into service by

officers who are negligent and lethargic in

initiating acquisition proceedings.

37. The question is whether in the admitted

facts of this case, invoking the urgency

clause under Section 17 (4) is justified.

In the writ petition before the High Court,

the petitioners have given the details of

the land holding, and it has also been

stated that the entire holding of

petitioners 2, 5, 7, 9, 10, 11 and 13 have

22

been acquired, and as a result of such

acquisition, the petitioners have become

landless. From the various facts disclosed

in the said affidavit it appears that the

matter was initiated by the Government’s

letter dated 4

th

of June, 2008 for issuance

of Section 4(1) and Section 17

notifications. A meeting for selection of

the suitable site for construction was held

on 27

th

June, 2008, and the proposal for

such acquisition and construction was sent

to the Director, Land Acquisition on 2

nd

of

July, 2008. This was in turn forwarded to

the State Government by the Director on 22

nd

of July, 2008. After due consideration of

the forwarded proposal and documents, the

State Government issued the Section 4

notification, along with Section 17

notification on 21

st

of August, 2008. These

notifications were published in local

newspapers on 24

th

of September, 2008.

23

Thereafter, over a period of 9 months, the

State Government deposited 10% of

compensation payable to the landowners,

along with 10% of acquisition expenses and

70% of cost of acquisition was deposited,

and the proposal for issuance of Section 6

declaration was sent to the Director, Land

Acquisition on 19

th

of June, 2009. The

Director in turn forwarded all these to the

State Government on 17

th

July, 2009, and the

State Government finally issued the Section

6 declaration on 10

th

of August, 2009. This

declaration was published in the local

dailies on 17

th

of August, 2009.

38. Thus the time which elapsed between

publication of Section 4(1) and Section 17

notifications, and Section 6 declaration,

in the local newspapers is of 11 months and

23 days, i.e. almost one year. This slow

pace at which the government machinery had

24

functioned in processing the acquisition,

clearly evinces that there was no urgency

for acquiring the land so as to warrant

invoking Section 17 (4) of the Act.

39. In paragraph 15 of the writ petition, it

has been clearly stated that there was a

time gap of more than 11 months between

Section 4 and Section 6 notifications,

which demonstrates that there was no

urgency in the State action which could

deny the petitioners their right under

Section 5A. In the counter which was filed

in this case by the State before the High

Court, it was not disputed that the time

gap between Section 4 notification read

with Section 17, and Section 6 notification

was about 11 months.

40. The construction of jail is certainly in

public interest and for such construction

land may be acquired. But such acquisition

25

can be made only by strictly following the

mandate of the said Act. In the facts of

this case, such acquisition cannot be made

by invoking emergency provisions of Section

17. If so advised, Government can initiate

acquisition proceeding by following the

provision of Section 5A of the Act and in

accordance with law.

41. For the reasons aforesaid, we hold that the

State Government was not justified, in the

facts of this case, to invoke the emergency

provision of Section 17(4) of the Act. The

valuable right of the appellants under

Section 5A of the Act cannot flattened and

steamrolled on the ‘ipsi dixit’ of the

executive authority. The impugned

notifications under Sections 4 and 6 of the

Act in so far as they relate to the

appellants’ land are quashed. The

possession of the appellants in respect of

26

their land cannot be interfered with except

in accordance with law.

42. The appeals are allowed. No order as to

costs.

.......................J.

(G.S. SINGHVI)

.......................J.

New Delhi (ASOK KUMAR GANGULY)

March 07, 2011

27