REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6580 OF 2008

ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 15449 OF 2004

ESSCO FABS PVT. LTD. & ANR. … APPELLANTS

VERSUS

STATE OF HARYANA & ANR. … RESPONDENTS

WITH

CIVIL APPEAL NO.6581 OF 2008

ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 15544 OF 2004

THE PANIPAT TEACHERS

(RECOGNISED SCHOOLS)HOUSING

CO-OPEATIVE SOCIETY LTD. & ANR. … APPELLANTS

VERSUS

STATE OF HARYANA & ORS. … RESPONDENTS

WITH

CONTEMPT PETITION NO. 30 OF 2007

IN

CIVIL APPEAL NO.6580 OF 2008

ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 15449 OF 2004

ESSCO FABS PVT. LTD. & ANR. … PETITIONERS

VERSUS

STATE OF HARYANA & ANR. … RESPONDENTS

J U D G M E N T

C.K. THAKKER, J.

1. Leave granted.

2. Both these appeals are filed by the

appellants being aggrieved and dissatisfied

with the judgment and order dated April 02,

2004, passed by the High Court of Punjab &

Haryana in Civil Writ Petition Nos. 1853 of

2003 and 2077 of 2002.

3. To appreciate the controversy raised

in the present appeals, relevant facts in

nutshell may be noted.

4. According to the appellant Essco Fabs

Pvt. Ltd. (‘Essco’ for short), the Government

of Haryana intended to acquire land for public

purpose, viz., for utilization of land as

residential, commercial and industrial area in

Sector Nos. 11, 12 and 25 Part-II by Haryana

Urban Development Authority (‘HUDA’ for short).

For the said purpose, the Government issued a

notification under sub-section (1) of Section 4

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of the Land Acquisition Act, 1894 (hereinafter

referred to as ‘the Act’) on December 15, 1982.

The land mentioned in the said notification

situated in village Kheri Nangal was sought to

be acquired. A final notification under Section

6 of the Act was issued on June 20, 1984.

However, the land acquisition proceedings could

not be completed within the stipulated period

and the notifications lapsed and the land stood

released.

5. It was the case of Essco that it

bought the land which was sought to be acquired

earlier for expansion of its Export Unit.

According the appellant, it is engaged in

manufacturing and exporting rugs, cushions,

bed-spreads, bath mats, fabrics, kitchen towel,

aprons, pot holders, gloves, mitten, curtains,

napkins, carpets, etc. It is Export Oriented

Unit and earns foreign exchange by export of

goods manufactured in its unit. In the year

1992, it exported materials over Rs.2 crores.

The appellant has stated that on June 6, 1991,

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it made an application to the Director, Town &

Country Planning, Haryana for permission for

change of user of land. All necessary documents

were appended to the application. The Director,

however, vide an order dated September 5, 1991,

rejected the permission on several grounds. One

of the grounds weighed with the Director for

refusing the permission was that the land in

question was proposed to be acquired. The

appellant has produced a copy of the

application as also an order of rejection

thereof in the present proceedings. But even

thereafter no proceedings for acquisition of

land were initiated for many years.

6. On August 1, 2001 i.e. after about

twenty years of the first notification of 1982

and nine years after rejection of prayer of the

appellant for change of user, the Government of

Haryana again issued notification under sub-

section (1) of Section 4 of the Act for

acquisition of land for the development and

utilization for construction of road connecting

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Sanauli Road with G.T. Road for Sector 25 Part-

II B, Urban Estate Panipat by HUDA. The land of

the appellant situated in village Kheri Nangal

was sought to be included in the notification.

Moreover, ‘urgency clause’ under Section 17 of

the Act was applied and a valuable right of

raising objections under Section 5-A of the Act

was taken away in an arbitrary manner. On the

very next day i.e. on August 2, 2001, final

notification under Section 6 of the Act was

issued by the Government.

7. It is the case of the appellant that

the preliminary notification under sub-section

(1) of Section 4 of the Act was required to be

published in the manner laid down in the Act.

But it had not been published before issuance

of final notification under Section 6 of the

Act. The final notification was, therefore,

illegal and the appellant could not be deprived

of his property in a manner not known to law.

The right of the appellant to own, possess and

enjoy the property is not merely a Common Law

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right but also constitutional right under

Article 300A of the Constitution which has a

‘flavour of fundamental right’. The acquisition

proceedings, being not in consonance with law

were vitiated and liable to be quashed.

8. The appellant, hence, filed Civil Writ

Petition No. 1853 of 2003 in the High Court of

Punjab & Haryana by invoking Article 226 of the

Constitution praying therein for quashing and

setting aside acquisition proceedings. The High

Court entertained the petition and granted

status quo with regard to possession of the

land in question. Finally, however, by the

impugned judgment it dismissed the petition.

The said order is challenged by the appellant

in this Court.

9. The other appeal is filed by the

Panipat Teachers (Recognized Schools) Housing

Co-operative Society Ltd. (‘society’ for short)

challenging the acquisition proceedings. It was

the case of the society that pursuant to the

representation made by the society, the State

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Government released 53 kanals and 8 marlas of

land by executing an agreement dated October

19, 1985 and by granting land in favour of the

society on conditions mentioned in the

agreement. Possession of land was handed over

to the society. The land was demarcated and was

carved out into plots reserving requisite space

for school, parks, temple, overhead water tank,

roads, green belt etc. The society got the site

plan designed strictly in accordance with HUDA

Rules. The society invested huge amount,

approximately Rs.26 lakhs, for developing the

land laying down sewer pipe lines, RCC Water

pipe lines, construction of roads and boundary

walls etc. The site plan, however, has not been

cleared by the office of the Director, Town &

Country Planning, Haryana despite numerous

attempts by the appellant-society. It is

alleged by the society that the matter was kept

pending for oblique and ulterior purposes on

lame and untenable excuses. It is also stated

by the society that HUDA published public

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notice in ‘Daily Bhaskar’ dated November 10,

2000 demanding development charges thereby

acknowledging that the society’s land has been

rightly developed for teachers’ colony. The

public notice informed and instructed those

land/plot owners who were in arrears to pay all

the balance development charges and outstanding

dues. No dues were shown as against the

appellant-society. Thus, there is nothing due

and payable to HUDA by the appellant.

10. Ignoring all these material facts and

with a view to cause serious prejudice to the

appellant-society, a notification under sub-

section (1) of Section 4 of the Act had been

issued by the State for acquisition of land.

11. We have already stated facts relating

to the issuance of preliminary notification,

application of urgency clause under Section 17

and issuance of final notification under

Section 6 of the Act while narrating the facts

in the first case of Essco. It is, therefore,

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not necessary to repeat all those facts in the

second matter.

12. The appellant-society, in the

circumstances, approached the High Court by

filing Civil Writ Petition No. 2077 of 2002

which was also decided along with the petition

of Essco and the petition of the appellant-

society also came to be dismissed.

13. Third writ petition (Civil Writ

Petitin No. 3324 of 2003) was filed by M/s Lord

Shiva Exports, Panipat which also met with the

same fate. Lord Shiv Exports, however, has not

approached this Court.

14. Notices were issued by this Court and

interim relief was granted. Respondents

thereafter appeared, affidavits and further

affidavits were filed and the matters were

ordered to be posted for final hearing. That is

how the matters are before us.

15. We have heard learned counsel for the

parties.

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16. The learned counsel for the appellants

Essco and Teachers’ society have challenged the

acquisition on several grounds. It was

contended that the land was not needed for

public purpose as set out in the notification

of 2001 and, hence, the acquisition is not

legal or lawful. Moreover, initially an action

was taken for acquisition of land before more

than a quarter century in the year 1982. Final

notification was also issued after more than

one and half year of preliminary notification,

but even thereafter, nothing was done by the

State and the proceedings lapsed. Again, in

1991, when Essco applied for change of user of

land, the prayer was turned down, inter alia,

on the ground that the land in question was

proposed to be acquired for public purpose.

Nothing was done by the State for about a

decade. Only in August, 2001, notification

under Section 4 was issued. It was strongly

urged by the learned counsel for the appellants

that preliminary notification was issued on

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August 1, 2001 and urgency clause was applied

though there was no urgency at all. The

notification was published in the official

gazette thereafter and in two daily newspapers

on August 10 and 12, 2001. Final notification

under Section 6, however, was issued

immediately on the next day i.e. on August 2,

2001, of the issuance of preliminary

notification under sub-section (1) of Section

4. It was contended that on the facts of the

case, no urgency clause could have been

invoked. Even otherwise, the action was bad and

de hors the Act since the conditions laid down

in sub-section (4) of Section 17 of the Act

have not been complied with inasmuch as there

was neither grave urgency nor unforeseen

emergency. It was submitted that there was

lethargy on the part of officers of the

Government in not taking steps for more than

twenty years. The State cannot take undue

advantage of its negligence or inaction and

deprive the owners of their right to property

1

in purported exercise of power of eminent

domain. The Act is an expropriatory legislation

which deprives a person of his property without

his consent. The provisions of the Act, hence,

have to be construed strictly. It was submitted

that Section 5A confers a valuable right on the

owners of land of submitting objections against

proposed acquisition and such right cannot be

taken away or curtailed by the State. On the

facts of the case, invocation of urgency clause

was not only uncalled for being contrary to law

but otherwise arbitrary and unreasonable and on

that ground also, the proceedings are liable to

be quashed. It was urged that the expression

‘the date of publication’ has been defined in

sub-section (1) of Section 4 of the Act. While

construing the said connotation under Section

17, same meaning as contemplated under Section

4(1) has to be given. Since the final

notification under Section 6 had not been

published as required by the Act after ‘the

last date of publication’ of notification under

1

Section 4(1), the action is unlawful and is

liable to be set aside. It was asserted that no

notice as required by Section 9 of the Act had

been issued nor payment of 80 percent of the

compensation as required by sub-section (3A) of

Section 17 had been paid. There was also total

non-application of mind on the part of the

State Government in not considering the

Government policy of granting exemption to

functional units dealing with handloom and

other industries. On that count also, the

proceedings are liable to be dropped.

17. On behalf of Teachers’ Society, the

learned counsel adopted all the contentions

raised on behalf of Essco. The learned counsel,

however, further submitted that the society

prayed for allotment of land and the prayer was

granted. An agreement was entered into between

the Authority and the society, possession of

land was handed over to the society, which has

spent substantial amount of several lakhs for

development. Necessary permission was sought so

1

that construction can be made which was also

granted by the Authorities, requisite charges

which were to be paid had already been paid and

no dues had been shown so far as the appellant-

society is concerned and yet the impugned

action has been taken mala fide and with

ulterior motive though the land is not required

for public purpose. It was also submitted that

even according to the authorities, the land of

the appellant-society does not come in ‘road

line’. It is situate at about 24 meters away

(23.94 meters) from road line. It was,

therefore, submitted that the proceedings

should be declared against the provisions of

law and may be quashed.

18. Learned counsel for the respondents,

on the other hand, submitted that the action of

the authorities is legal, lawful and in

consonance with law. It was urged that the land

was required for public purpose, viz., for

construction of road. For acquisition of land,

therefore, a notification was issued. It was

1

submitted that there is no element of mala

fide or colourable exercise of power which is

clear form the fact that even in early

eighties, the land was sought to be acquired.

Since the proceedings could not be completed

within the stipulated period, they lapsed.

That, however, does not mean that the land was

not needed for public purpose or that the

public purpose disappeared or vanished. The

counsel submitted that it was further clear

when the prayer of Essco for change of user of

land in 1991 was rejected. The applicant was

told at that time also that the land was

required for public purpose. According to the

counsel, Government machinery took some time

but it cannot be concluded that the land was

not required by the State and only with a view

to deprive the appellants of their ownership

rights acquisition proceedings had been

initiated.

19. Regarding notification of August 1,

2001 and August 2, 2001 under Sections 4 and 6

1

of the Act respectively, it was submitted that

both the notifications were in consonance with

law. A preliminary notification under sub-

section (1) of Section 4 of the Act was issued

showing the intention of the State for

acquisition of land for public purpose. Since

the acquisition was for construction of road,

it was covered by Section 17 of the Act and

urgency clause was rightly invoked and in

exercise of power under sub-section (4) of

Section 17, inquiry contemplated by Section 5A

of the Act had been dispensed with. The action

was in consonance with law and no grievance can

be made contending that the inquiry as

contemplated by Section 5A and hearing of

objections were illegally dispensed with by the

authorities. All actions were consistent with

the provisions of the Act and the appellants

have no right to make complaint against those

actions. It was, therefore, submitted that the

High Court was wholly right in dismissing the

1

writ petitions and the appeals have no

substance.

20. Before we deal with the matter on

merits, it would be appropriate if we notice

the relevant provisions of the Act. As the

Preamble shows, the Act has been enacted with a

view “to amend the law for the acquisition of

land for public purposes (and for Companies)”.

Section 3 is a ‘definition clause’ of various

expressions used in the Act. Clause (f) defines

‘public purpose’ and the definition is

‘inclusive’ in nature. Purposes mentioned in

Clauses (i) to (viii) are in the nature of

‘public purpose’ and the land can be acquired

for any such purpose. Part II (Sections 4 to

17) deals with ‘Acquisition’. Section 4 enables

the appropriate Government to issue preliminary

notification for acquisition of land needed or

likely to be needed for public purposes. The

said section is relevant and reads thus;

Section 4 - Publication of preliminary

notification and powers of officers

1

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

1

[and in two daily

newspapers circulating 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

1

[the last of the dates

of such publication and the giving of

such public notice, being hereinafter

referred to as the date of publication

of the notification.

(2) Thereupon it shall be lawful for

any officer, either, generally or

specially authorised by such

Government in this behalf, and for his

servants and workmen,--

to enter upon and survey and take

levels of any land in such locality;

to dig or bore in the sub-soil;

to do all other acts necessary to

ascertain whether the land 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;

1

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 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 thereof)

without previously giving such

occupier at least seven days' notice

in writing of his intention to do so.

21. Section 5A is a salutary provision and

enables any person interested in the land which

is notified under sub-section (1) of Section 4

as being needed or likely to be needed for a

public purpose to lodge objections against the

proposed acquisition. It is equally important

provision and may be reproduced’

Section 5A - Objections : 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 public purpose or for a company

may, within thirty days from the date

of the publication of the

1

notification, object to the

acquisition of the land or of any land

in the locality, as the case may be.

(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

authorised by him in this behalf or by

pleader and shall, after hearing all

such objections and after making 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 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 purposes of this section,

a person shall be deemed to be

interested in land who would be

entitled to claim an interest in

compensation if the land were acquired

under this Act.

22. Then comes Section 6 which authorizes

the appropriate Government to issue final

notification as to declaration that the land is

required for public purpose. The said section

is also material and reads as under;

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6. Declaration that land is required

for a public purpose.-(1) Subject to

the provisions of Part VII of this

Act, when 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 of a Secretary to such

Government or of some officer duly

authorised to certify its orders an

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 (!), irrespective of

whether one report or different

reports has or have been made

(wherever required) under section 5-A,

sub-section (2):

Provided that no declaration in

respect of any particular land covered

by a notification under section 4,

sub-section (1),--

(i) published after the commencement

of the Land Acquisition (Amendment and

Validation) Ordinance, 1967 but before

the commencement of the Land

Acquisition (Amendment) Act, 1984

shall be made after the expiry of

three years from the date of the

publication of the notification; or

(ii) published after the commencement

of the Land Acquisition (Amendment)

Act, 1984, shall be made after the

2

expiry of one year from the date of

the publication of 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

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 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

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 Gazette,

and

in two daily newspapers circulating in

the 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 public notice, being hereinafter

2

referred to as the date of 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

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 the

Appropriate Government may acquire the

land in manner hereinafter appearing.

23. Section 9 requires issuance of notice

to persons interested. Section 11 requires

enquiry to be made and award to be passed by

Collector. Section 16 authorises the Collector

to take possession of the land acquired under

the Act. Thereupon, the land vests absolutely

in the Government free from all encumbrances.

24. Section 17 is an exception to the

normal rule of acquisition of land and deals

with cases of urgency and emergency. The

provision is of extreme importance and may be

quoted in extenso.

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17. Special powers in cases of

urgency.-(1) In cases of urgency,

whenever the Appropriate Government so

directs, 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 waste or arable land

needed for a public purpose]. Such

land shall thereupon vest absolutely

in the Government, free 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 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 purpose

of maintaining any structure or system

pertaining 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 thereupon vest absolutely

in the Government free from all

encumbrances.

2

Provided that the Collector shall not

take possession of any building or

part of a building under this sub-

section without 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.

(3) In every case under either of the

preceding sub-sections the Collector

shall at the time of taking possession

offer to the persons interested,

compensation for the standing crops

and trees (if any) on such land and

for any other damage sustained by them

caused by such 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

compensation for the land under the

provisions herein contained.

(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 compensation for such

land as estimated by him to the

persons interested entitled thereto,

and

2

(b) pay it to them, unless prevented

by some one or more of the

contingencies mentioned in section 31,

sub-section (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.

(3-B) 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 compensation awarded by

the Collector under section 11, the

excess may, unless refunded within

three months from the date of the

Collector's award, be recovered as an

arrear of land revenue.

(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 not so direct, a declaration may

be made under section 6 in respect of

the land at any time after the date of

the publication of the notification

under section 4, sub-section (1).

25. Whereas Part III relates to ‘Reference

to Court and procedure thereon’, Parts IV and V

2

deal with ‘Apportionment of compensation’ and

‘Payment’, respectively.

26. It is vehemently contended on behalf

of the appellants that on the facts and in the

circumstances of the case, the respondents

could not have invoked ‘urgency clause’ by

scuttling enquiry and dispensing with hearing

of objections under Section 5A of the Act. It

was submitted that no action could have been

taken in view of the circumstances mentioned

earlier. As early as in 1982 proceedings were

initiated for acquisition of land but they were

allowed to be lapsed in spite of final

notification under Section 6 of the Act by not

taking appropriate actions in time. Again, in

1991, when Essco Fabs applied for change of

user of land, request was turned down on the

ground that the land was likely to be needed

for public purpose. It was, therefore,

submitted that when preliminary notification

under Section 4 was issued in 2001, there was

2

no urgent need or compelling necessity nor it

was a matter of urgency or emergency under

Section 17 of the Act which could justify the

action and the proceedings are liable to be

quashed.

27. We find considerable force in the

above argument of the learned counsel for the

appellants. The scheme of the Act is clear

which provides for issuance of preliminary

notification under sub-section (1) of Section 4

of the Act empowering the appropriate

Government to issue such notification for

acquisition of land needed or likely to be

needed for any public purpose. Since the

property belongs to a private individual,

unless there is a ‘public purpose’ as defined

in clause (f) of Section 3 of the Act, no

acquisition of land can be made. It is in

exercise of power of eminent domain that a

sovereign may acquire property which does not

belong to him. In the circumstances, as a

2

general rule, before exercise of power of

eminent domain, law must provide an opportunity

of hearing against the proposed acquisition.

Even without a specific provision to that

effect, general law requires raising of

objections by and affording opportunity of

hearing to the owner of the property. The Land

Acquisition (Amendment) Act, 1923 (Act 38 of

1923), however, expressly made such provision

by inserting Section 5A in the Act. It is,

therefore, clear that after issuance of

preliminary notification under Section 4 before

and final notification under Section 6 of the

Act, the appropriate Government is enjoined to

hear persons interested in the property before

he is deprived of his ownership rights. But

then there may be cases of ‘urgency’ or

‘unforeseen emergency’ which may brooke no

delay for acquisition of such property in

larger public interest. The Legislature,

therefore, thought it appropriate to deal with

2

such cases of exceptional nature and in its

wisdom enacted Section 17.

28. 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 5A

cannot ipso facto be dispensed with which is

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

the Act.

29. Sub-section (4) of Section 17 is an

enabling provision and it declares that if in

the opinion of the appropriate Government, the

provisions of sub-section (1) or (2) are

applicable, it may direct that the provisions

of Section 5A would not apply. It is,

therefore, clear that the Legislature has

contemplated that there may be ‘urgencies’ or

3

‘unforeseen emergencies’ and in such cases,

private properties may be acquired. But, it was

also of the view that normally even in such

cases, i.e. cases of urgencies or unforeseen

emergencies, the owner of property should not

be deprived of his right to property and

possession thereof without following proper

procedure of law as contemplated by Section 5A

of the Act unless the urgency or emergency is

of such a nature that the Government is

convinced that holding of enquiry or hearing of

objections may be detrimental to public

interest.

30. In this connection, both the parties

invited our attention to several decisions. We

will deal with some of the important decisions.

31. In Nandeshwar Prasad & Anr. V. State

of Uttar Pradesh & Ors, (1964) 3 SCR 425, the

land was acquired by the Government for public

purpose, viz. the Kanupur Development Board

3

under the Kanpur Urban Area Development Act,

1945. The Court considered the scheme of the

Act that after issuance of preliminary

notification under Section 4 of the Act,

objections are to be heard under Section 5A of

the persons interested in the property and

thereafter final notification under Section 6

can be issued. The Court, however, noted that

to that procedure, there is an exception under

Section 17 which enables the Government to

apply urgency clause. Where an action is taken

under sub-section (4) of Section 17 of the Act,

it is not necessary to follow procedure laid

down in Section 5A and notification under

Section 6 can be issued without report from the

Collector as envisaged by Section 5A.

32. The Court stated;

“It will be seen that s. 17(1) gives

power to the Government to direct the

Collector, though no award has been

made under s. 11, 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 s. 17(1), taking

3

possession and vesting which are

provided in s. 16 after the award

under s. 11 are accelerated and can

take place fifteen days after the

publication of the notice under s.9.

Then comes s. 17(4) which provides

that in case of any land to which the

provisions of sub-s. (1) are

applicable, the Government may direct

that the provisions of s. 5-A shall

not apply and if it does so direct, a

declaration may be made under s. 6 in

respect of the land at any time after

the publication of the notification

under s. 4(1). It will be seen that it

is not necessary even where the

Government makes a direction under s.

17(1) that it should also make a

direction under s. 17(4). If the

Government makes a direction only

under s. 17(1) the procedure under s.

5-A would still have to be followed

before a notification under s. 6 is

issued, though after that procedure

has been followed and a notification

under s. 6 is issued the Collector

gets the power to take possession of

the land after the notice under s. 9

without waiting for the award and on

such taking possession the land shall

vest absolutely in Government free

from all encumbrances. It is only when

the Government also makes a

declaration under s. 17(4) that it

becomes unnecessary to take action

under s. 5-A and make a report

thereunder. It may be that generally

where an order is made under s.17(1),

an order under s. 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

3

Acquisition Act an order under s. 17

(1) or s. 17(4) can only be passed

with respect to waste or arable land

and it cannot be passed with respect

to land which is not waste or arable

and on which buildings stand”.

(emphasis supplied)

33. From the above observations, it is

clear that even in cases falling under or

covered by sub-sections (1) and (2) of Section

17 of the Act and the Government intends to

acquire land in cases of ‘urgency’ or

‘unforeseen emergency’, it is still required to

follow procedure under Section 5A of the Act

before issuance of final notification under

Section 6 of the Act. It is only when the

Government also makes a declaration under sub-

section (4) of Section 17 that it becomes

unnecessary to take recourse to procedure under

Section 5A of the Act.

34. Nandeshwar Prasad was decided by a

three Judge Bench.

35. Recently, in Union of India & Ors. v.

Mukesh Hans, (2004) 8 SCC 14, a similar

3

question came up for consideration before a

three Judge Bench. There land was sought to be

acquired at Mehrauli by the appropriate

Government for organizing Anjuman-Saire-e-Gul-

Faroshan. Proceedings were initiated under the

Act and urgency clause was applied. The

notification mentioned the public purpose as

‘Planned Development of Delhi’. It was also

stated that Lt. Governor was of the opinion

that Section 17(1) of the Act was applicable to

the acquisition and he directed to dispense

with inquiry under Section 5A of the Act.

Simultaneously, a declaration under Section 6

was issued. Intrested parties approached the

High Court of Delhi, inter alia, on the ground

that decision to dispense with inquiry

contemplated by Section 5A of the Act was

vitiated by non-application of mind. The High

Court upheld the contention and quashed the

proceeding. The aggrieved Union approached this

Court.

3

36. It was contended on behalf of the

Union that in case of urgency, it was open to

the appropriate Government to dispense with

inquiry under Section 5A by invoking sub-

section (4) of Section 17 of the Act. It was

also contended that the urgency contemplated by

sub-sections (1) or (2) of Section 17 of the

Act was ‘by itself’ sufficient to invoke sub-

section (4) of Section 17.

37. Negativing the contention and

referring to Nandeshwar Prasad and other

judgments, the Court held;

“A careful perusal of the above Section

shows that Sub-section (1) of Section

17 contemplates taking possession of

the land in the case of an urgency

without making an award but after the

publication of Section 9(1) notice and

after the expiration of 15 days of

publication of Section 9(1) notice.

Therefore it is seen that if the

appropriate Government decides that

there is an urgency to invoke Section

17(1) in the normal course Section 4(1)

notice will have to be published,

Section 6 declaration will have to be

made and after completing the procedure

contemplated under Sections 7 and 8, 9

(1) notice will have to be given and on

expiration of 15 days from the date of

3

such notice the authorities can take

possession of the land even before

passing of an award.

Sub-section (2) of Section 17

contemplates a different type of

urgency inasmuch as it should be an

unforeseen emergency. Under this

Section if the appropriate Government

is satisfied that there is such

unforeseen emergency the authorities

can take possession of the land even

without waiting fort 15 days period

contemplated under Section 9(1).

Therefore, in cases, where Government

is satisfied that mere is an unforeseen

emergency it will have to in the normal

course, issue a Section 4(1)

notification, hold 5A inquiry, make

Section 6 declaration, and issue

Section 9(1) notice and possession can

be taken immediately thereafter without

waiting for the period of 15 days

prescribed under Section 9(1) of the

Act.

Section 17(4) as noticed above

provides that in cases where the

appropriate Government has come to the

conclusion that there exists an urgency

or unforeseen emergency as required

under Sub-sections (1) or (2) of

Section 17 it may direct that the

provisions of Section 5A shall not

apply and if such direction is given

then 5A inquiry can be dispensed with

and a declaration may be made under

Section 6 on publication of 4(1)

notification possession can be made”.

3

38. The Court, therefore, proceeded to

state;

“A careful perusal of this provision

which is an exception to the normal

mode of acquisition contemplated under

the Act shows 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 5A inquiry. It requires an opinion

to be formed by the concerned

government that along with the

existence of such urgency or unforeseen

emergency there is also a need for

dispensing with 5A inquiry which

indicates that the Legislature intended

that the appropriate government to

apply its mind before dispensing with

5A inquiry. It also indicates the mere

existence of an urgency under Section

17(1) or unforeseen emergency under

Section 17(2) would not by themselves

be sufficient for dispensing with 5A

inquiry. If that was not the intention

of the Legislature then the latter part

of Sub-section (4) of Section 17 would

not have been necessary and the

Legislature in Section 17(1) and (2)

itself could have incorporated that in

such situation of existence of urgency

or unforeseen emergency automatically

5A inquiry will be dispensed with. But

then that is not language of the

Section which in our opinion requires

the appropriate Government to further

consider the need for dispensing with

5A inquiry in spite of the existence of

unforeseen emergency. This

understanding of ours as to the

3

requirement of an application of mind

by the appropriate Government while

dispensing with 5A inquiry does not

mean mat in and every case when there

is an urgency contemplated under

Section 17(1) and unforeseen emergency

contemplated under Section 17(2) exists

that by itself would not contain the

need for dispensing with 5A inquiry. It

is possible in a given case the urgency

noticed by the appropriate Government

under Section 17(1) or the unforeseen

emergency under Section 17(2) itself

may be of such degree that it could

require the appropriate Government on

that very basis to dispense with the

inquiry under Section 5A but then there

is a need for application of mind by

the appropriate Government that such an

urgency for dispensation of the 5A

inquiry is inherent in the two types of

urgencies contemplated under Section 17

(1) and (2) of the Act”.

39. The learned counsel for the respondent

authorities, however, strongly relied upon a

two Judge Bench decision of this Court in Jai

Narain & Ors. v. Union of India & Ors., (1996)

1 SCC 9. In Jai Narain, the Court held that the

question of ‘urgency’ or ‘unforeseen emergency’

is the mater which is entirely based on

‘subjective satisfaction of the Government’ and

the Courts do not interfere unless the reasons

3

given are wholly irrelevant and there is non-

application of mind. If the public purpose, on

the face of it shows that the land is needed

urgently, that by itself is relevant

circumstance for justifying the action under

Section 17(4) of the Act.

40. Again, a similar view was taken by a

two Judge Bench in Chameli Singh & Ors., v.

State of U.P. & Anr., (1996) 2 SCC 549. In

Chameli Singh, land was acquired for public

purpose, namely, construction of houses for

dalits. Urgency clause under Section 17 was

applied which was challenged by the land-

owners. Holding that the urgency clause was

rightly applied and inquiry under Section 5A of

the Act has been correctly dispensed with, the

Court observed that acquisition of land for

providing houses to dalits, tribes and poor

would be sufficient to invoke Section 17 of the

Act and the land-owners cannot challenge the

validity of such acquisition on the ground that

4

inquiry under Section 5A cannot be dispensed

with.

41. The Court stated;

“It would thus be seen that this Court

emphasised the holding of an inquiry on

the facts peculiar to that case. Very

often the officials, due to apathy in

implementation of the policy and

programmes of the Government,

themselves adopt dilatory tactics to

create cause for the owner of the land

to challenge the validity or legality

of the exercise of the power to defeat

the urgency existing on the date of

taking decision under Section 17(4) to

dispense with Section 5-A inquiry.

It is true that there was pre-

notification and post-notification

delay on the part of the officers to

finalise and publish the notification.

But those facts were present before the

Government when it invoked urgency

clause and dispensed with inquiry under

Section 5A. As held by this Court, the

delay by itself accelerates the

urgency: Larger the delay, greater be

the urgency. So long as the unhygienic

conditions and deplorable housing needs

of Dalits, Tribes and the poor are not

solved or fulfilled, the urgency

continues to subsist When the

Government on the basis of the

material, constitutional and

international obligation, formed its

opinion of urgency, the Court, not

4

being an appellate forum, would not

disturb the finding unless the court

conclusively finds the exercise of the

power male fide. Providing house sites

to the Dalits, Tribes and the poor

itself is a national problem, and a

constitutional obligation. So long as

the problem is not solved and the need

is not fulfilled, the urgency continues

to subsist. The State is expending

money to relieve the deplorable housing

condition in which they live by

providing decent housing accommodation

with better sanitary conditions. The

lethargy on the part of the officers

for pre and post-notification delay

would not render the exercise of the

power to invoke urgency clause invalid

on that account”.

42. In First Land Acquisition Collector &

Ors., v. Nirodhi Prakash Gangoli & Anr., (2002)

4 SCC 160, a two Judge Bench again observed

that case of existence of urgency under Section

17 of the Act is a matter of subjective

satisfaction of appropriate Government and a

decision of Government to dispense with inquiry

under Section 5A by invoking urgency provision

can be challenged only on the ground of non-

application of mind or mala fide exercise of

power by the Government. Burden is always on

4

the person alleging mala fide to prove it on

the basis of specific materials. So long as

the purpose of acquisition continues to exist,

exercise of power under Section 17 cannot be

held to be mala fide. Mere delay of the

Government subsequent to its decision to

dispense with inquiry under Section 5A by

exercising power under Section 17 would not

invalidate the decision.

43. On the basis of above decisions, it

was submitted that once a decision has been

taken by the State Government to apply urgency

clause, the decision of the Government cannot

be interfered with by a Court exercising writ

jurisdiction.

44. In our judgment, from the above case

law, it is clear that normal rule for

acquisition of land under the Act is issuance of

notification under sub-section (1) of Section 4,

hearing of objections under Section 5A and

4

issuance of final notification under Section 6

of the Act. Award will be made by the

Collector, notice has to be issued to the land-

owners or the person interested and thereafter

possession can be taken. Section 17, no doubt,

deals with special situations and exceptional

circumstances covering cases of ‘urgency’ 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 decisions 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 5A cannot

ipso facto be dispensed with unless a

notification under sub-section (4) of Section 17

of the Act is issued. The legislative scheme is

amply clear which merely enables the appropriate

Government to issue such notification under sub-

4

section (4) of Section 17 of the Act dispensing

with inquiry under Section 5A 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 is

discretionary power of the Government to direct

that the provisions of Section 5A would not

apply to such cases covered by sub-section (1)

or (2) of Section 17 of the Act.

45. In our opinion, therefore, the

contention of learned counsel for the

respondent authorities is not well founded and

cannot be upheld that once a case is covered by

sub-section (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 5A 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.

4

46. It is true that in Chameli Singh and

Jai Narain, a two Judge Bench has observed that

acquisition of land for housing accommodation

or for construction of residential quarters for

dalits and tribals can be said to be of an

urgent nature falling under Section 17(1) of

the Act. But as already held in Nandeshwar

Prasad and Mukesh Hans, even in such cases,

procedure required to be followed under Section

5A cannot be dispensed with unless notification

under sub-section (4) of Section 17 is issued.

In Mukesh Hans, the Court also held that the

provision cannot be pressed in service by

officers who were negligent and due to their

lethargy, proceedings could not be initiated

for a quite long time.

47. In the instant case, the facts are

eloquent. Initial action of acquisition of land

was taken as early as in 1982 but the

proceedings lapsed. In 1991, when Essco made an

application praying for change of user of land,

4

it was rejected on the ground that the land was

likely to be required for public purpose.

Nothing, however, was done for about a decade.

It is only in 2001 that again Notification

under Section 4 was issued and urgency clause

was applied. We are, therefore, satisfied that

the ratio lad down in Mukesh Hans squarely

applies to the facts of the case. No urgency

clause could have been invoked by the

respondents and inquiry and hearing of

objections provided by Section 5A of the Act

could not have been dispensed with. The actions

of issuance of urgency clause under sub-section

(4) of Section 17, dispensing with inquiry

under Section 5A and issuance of final

notification under sub-section (1) of Section 6

are required to be quashed and they are

accordingly quashed.

48. The learned counsel for the appellant

also contended that even if it is held that the

respondent could have issued final notification

4

without holding inquiry and hearing of

objections under Section 5A of the Act, the

notification under Section 6 of the Act is

illegal and unlawful in view of the fact that

the said notification has not been issued after

the last of the dates of the publication and

giving of public notice referred to as “the

date of publication of the notification” under

sub-section (1) of Section 4 of the Act.

49. It was submitted that even the said

point is concluded by a decision of this Court

in State of Uttar Pradesh & Ors. v. Radhey

Shyam Nigam & Ors, (1989) 1 SCC 591.

50. The learned counsel for the

respondents, on the other hand, relying on

State of Haryana & Anr. v. Raghubir Dayal,

(1995) 1 SCC 133 and Mohan Singh & Ors. v.

International Airport Authority of India &

Ors., (1997) 9 SCC 132 submitted that if

urgency clause under Section 17(4) is applied

4

by the appropriate Government, final

notification under Section 6 of the Act can be

issued on the next day of the issuance of

preliminary notification under Section 4 of the

Act. In the case on hand, the said procedure is

followed. Notification under Section 4 was

issued on August 1, 2001. Urgency clause was

applied and the case was covered by Section 17

(4) of the Act. On the very next day i.e. on

August 2, 2001, final notification under

Section 6 was issued. Therefore, the procedure

required by law has been strictly followed as

held by this Court in Raghubir Dayal and Mohan

Singh.

51. We would have entered into the said

question had it been absolutely necessary for

us to decide it in the case on hand. But as

observed hereinabove, we are of the view that

the appellants are entitled to succeed on the

first ground that on the facts and in the

circumstances of the case, the appropriate

4

Government was not justified in invoking

urgency clause under sub-section (4) of Section

17 of the Act by dispensing with inquiry and

hearing of objections under Section 5A of the

Act and the final notification issued under

Section 6 of the Act deserves to be set aside

on that ground alone, we express no opinion one

way or the other on the interpretation of the

expression “the date of publication of the

notification” used in sub-section (1) of

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

Section 6 of the Act.

52. For the foregoing reasons, both the

appeals are allowed. The action of the

respondent authority of dispensing with the

inquiry and hearing of objections under Section

5A and issuance of final notification under

Section 6 of the Act is hereby quashed and set

aside. It is, however, open to the authorities

to take appropriate action after following

normal procedure laid down in the Act.

5

53. Appeals are accordingly allowed with

costs.

CONTEMPT PETITION NO.30 OF 2007

IN C.A.NO. …………… OF 2008 @ S.L.P. (C)NO. 15449 OF 2004

54. In the light of judgment in the above

appeals, the contempt petition stands disposed of.

…………………………………………………J.

(C.K. THAKKER)

NEW DELHI, …………………………………………………J.

NOVEMBER 07, 2008. (D.K. JAIN)

5