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CASE NO.:

Appeal (civil) 2735 of 2004

PETITIONER:

Union of India & Ors.

RESPONDENT:

Krishan Lal Arneja & Ors.

DATE OF JUDGMENT: 28/04/2004

BENCH:

SHIVARAJ V. PATIL & D.M.DHARMDHIKARI.

JUDGMENT:

J U D G M E N T

WITH

CIVIL APPEAL NOS.2736, 2738 AND 2739 OF 2004

(Arising out of S. L. P. (C) Nos. 9264/2003, 9263/2003

and 9265/2003)

(Arising out of S. L. P. (C) NO. 5451/ 2003)

SHIVARAJ V. PATIL J.

Leave granted.

In these appeals, common order dated 22.3.2002

passed in Letters Patent Appeals by the Division Bench

of High Court of Delhi, is under challenge. The facts

leading to the filing of these appeals, in brief, are

that:

In all, 14 properties including the properties in

question in these appeals, were notified for

acquisition on 6th March, 1987 under the provisions

of Section 4 and Section 17(1)&(4) of the Land

Acquisition Act, 1894 (for short `the Act'). Earlier

these properties were requisitioned by the appellants

under the Defence of India Rules. The provisions of the

Requisitioning and Acquisition of Immovable Property

Act, 1952 (for short `1952 Act') were going to lapse on

10th March, 1987. These properties were occupied

either for offices or for providing residential

quarters to the officers. Out of these 14 properties,

Banwari Lal and Sons and Shakuntala Gupta had

questioned the validity of acquisition proceedings

pertaining to property no. 6, Ansari Road, Dariyaganj,

New Delhi and property no. 2, Underhill Road, Delhi,

respectively by filing separate writ petitions. The

writ petitions were allowed and acquisition proceedings

were quashed including the above-mentioned notification

of 6th March, 1987. These matters attained finality

having reached this Court. The respondents in these

appeals filed writ petitions challenging the

acquisition of their properties under the very

notification. Learned Single Judge of the High Court

allowed the writ petitions. The appellants questioned

the correctness and validity of the orders made by

learned Single Judge in the Letters Patent Appeals,

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which were dismissed by the impugned order mainly

following earlier judgments in the cases of Banwari Lal

and Sons and Shakuntala Gupta.

The learned senior counsel for the respondents

raised a preliminary objection as to the very

maintainability of these appeals on the ground that the

controversy raised and the contentions sought to be

urged in these appeals are fully covered against the

appellants by the judgment of this Court in Union of

India & Ors. vs. Shakuntala Gupta (Dead) by Lrs.

[(2002) 7 SCC 98]. The learned senior counsel for the

appellants, however, did not agree and sought to argue

these appeals on merits raising various contentions

stating that the decisions in Shakuntala Gupta (supra)

and Banwari Lal & Sons Pvt. Ltd. vs. Union of India &

Ors [DRJ 1991 (Suppl) 317] are distinguishable on facts

and that certain questions of law, which go to the root

of the matter, were neither urged nor decided in the

aforementioned two cases. Hence, we heard the learned

counsel for the parties on either side at length.

The contentions advanced on behalf of the

appellants were: (1) that Banwari Lal's case was

wrongly decided and further it was on its own facts

being property specific; Banwari Lal's case was not a

precedent as no reasoned order was made by this Court

inasmuch as the petition was dismissed at the SLP stage

itself; (2) Non-mentioning of the nature and existence

of urgency in the notification issued under Sections 4

and 17 of the Act does not vitiate the notification;

subjective satisfaction as regards urgency could not be

determined solely on the basis of the expressions used

in the notification and such urgency could be gathered

looking to the surrounding circumstances and the

records which would show the urgency for the

acquisition; (3) pre and post notification delay would

not affect the notification on account of lethargy of

the officers and such delay would not render the

exercise of power to invoke urgency clause invalid

where there was a grave urgency on account of shortage

of Government housing; (4) the High Court committed a

serious error in appointing the arbitrator to determine

the damages in the absence of any arbitration agreement

and there being no prayer in that regard in the writ

petition; (5) correctness of the order in Banwari Lal's

case was not considered in Shakuntala Gupta's case;

paras 11, 12 and 15 in Shakuntala Gupta's case in

review must be read together to understand the correct

legal position; (6) alternatively, notification as

regards Section 17(1), could be quashed sustaining it

only to the extent of Section 4(1) of the Act.

The learned senior counsel for the respondents

made submissions supporting the impugned judgment.

They contended that Banwari Lal's case was correctly

decided. The orders of this Court in Shakuntala Gupta

affirm the legal position stated in Banwari Lal. Hence

the same result rightly followed in the writ petitions

filed by the respondents in these appeals. The High

Court was right and justified in passing the impugned

common judgment affirming the order of the learned

Single Judge having regard to the decision already

rendered in Banwari Lal's case in regard to the same

common notification; if a different view is taken at

this stage, particularly after the decision in

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Shakuntala Gupta's case in the main appeal as well as

in review, it will lead to anomalous result leading to

conflict of decisions, i.e., the very same notification

stands quashed in respect of some writ petitioners

which has attained finality by virtue of affirmation of

the said order by this court in Banwari Lal and

Shakuntala Gupta and in regard to other writ petitions

filed by the present respondents, it will have to be

sustained. If that be so, it will result in treating

similarly placed persons differently on same set of

facts. The learned senior counsel further urged that

non-compliance of Section 17(3A) is yet another ground

for quashing notification; strict compliance of sub-

section (3A) of Section 17 is mandatory. According to

them, in these cases even on the facts and

circumstances found, there was neither material nor

justification to invoke urgency clause; they made

submissions distinguishing decisions relied on behalf

of the appellants having regard to the facts of those

cases and the points that arose for consideration. It

was also their contention that the appellants having

been in possession of the properties, there was no

reason to invoke urgency clause to take immediate

possession; at best, after the expiry of the 1952 Act

as amended by Act No. 20 of 1985, the appellants

continuing in unauthorized possession, could be made to

pay damages or compensation for the period during which

they unauthorisedly continued to be in possession. They

also submitted that this Court sustained the

appointment of arbitrator to determine the damages made

in earlier decisions and having taken note of the same,

as can be seen from the impugned common judgment in

these appeals; almost after 17 years, it may not be

just and equitable to direct the parties to approach

civil court for claiming damages. The learned counsel

submitted that Shakuntala Gupta's case is concluded on

facts and in law in relation to the very same

notification against the appellants. In SLP No.

9264/2003, the ground of delay in filing writ petition

is not raised; the learned Single Judge did not find

delay as a good ground for rejecting the writ petition

on the facts and circumstances. The Division Bench in

the LPA agreed with the learned Single Judge.

In reply, the learned counsel for the appellants

submitted that non-compliance of sub-section (3A) of

Section 17 may affect the possession and not the

acquisition; on account of such non-compliance, party

may be entitled for interest under Section 23A of the

Act; it would also not lead to returning possession of

the property.

We have carefully considered the respective

submissions made by the learned counsel for the

parties. The notification issued on 6.3.1987 which was

the subject matter of challenge in the writ petitions

reads:

"NOTIFICATION

Dated 5.3.1987

No. F.7(9)/86-L&B: (1) Whereas it

appears to the Governor Delhi that the

lands/properties are likely to be required to

be taken by the government at the public

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expense for the following public purposes.

It is hereby notified that the land in the

locality described below is likely to be

required for the above purpose.

This notification is made under the

provisions of Section 4 of the Land

Acquisition Act, to all whom it may concern.

In exercise of the powers conferred by

the aforesaid section, the Lt. Governor is

pleased to authorize the officers for the

time being engaged in the undertaking with

their servants and workmen to enter upon and

survey any land in the locality and do all

other acts required or permitted by that

section.

The Lt. Governor, being of the opinion

that the provisions of sub-section (1) of

section 17 of the said Act are applicable to

this land is further pleased under sub-

section 4 of the said section, to direct that

the provisions of section 5A shall not apply.

SPECIFICATION

------------------------------------------------------------------------------------

---------------

Sl. Property Total Area Field or Purpose of

No. boundaries No. acquisition

--------------------------------------------------------------------------------------------

----------------

1 2 3 4 5

--------------------------------------------------------------------------------------------

----------------

1. 95, Lal Kothi 321 sq. mts. East Kutab Road, Residential use

Jatwara Mohalla West Hosue of of Govt.

Sh. Tej Ram, servants

North Gali, South

Shops.

2. 8 A.Kamla Nagar 285 sq. mtrs. East Road, West Housing the

Delhi G.T. Road, North govt. offices

Property No. 7A

South Property

No.9-A

3. 301, Okhla New 106 sq. mtrs. East Gali West Setting up of

Delhi Hosue No. 76/1, dispensary

Dispensary, North

Road, South

House NO. 301-A

4. 15, Alipur Road Big - Bis Khasra No. 537 Housing the

& Civil Station, 7 - 12 Min. 7 bigha 610 govt

. offices

Min. 12 Biswas

5. 1 Rajpur Road 10 - 13 981/500 big-bis Housing the

Civil Station 0 - 05 govt. office

&

10-08 govt. servants

6. 15 Rajpur road 475 11 - 10 Housing the

Civi Station govt. offices

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7. 2, Under Hill 11-740 sq. mts. East Kothi No. 16, Housing the

Road, Delhi Alipur Road, West govt. office

K. No. 4 Road,

South K. No. 4 & 6

Under Hill Road

8. 60/21, Ramjas 475 sq. mts. East Ramjas Raod Residential use

Road, Delhi West 60/2, North of govt. servant

Street, South Road

9. 30, Rohtak Road 1087 sq. mts. East Plot No. 29 Residential use

1087 Delhi West Plot No. 31 of govt.

North Road South servants.

Gali

10. 11, Lencer Road 1125 sq. mts. East K. No. 1 Housing the

Delhi West K. No. 10-A govt. offices

North service

Land . South Road

11. 3, Tilak Marg East Old Qila East Old Qila Road Housing the

Road, West West Tilak Marg Road govt. offices

North Police Station,

South Rajdootawas

Kothi No. 1

12. 6 Ansari Road, 5592 sq. yds. East Land, West Residential use

Daryaganj, Delhi Electric Transformers of govt.

Station and Ansari servants

Road, North Masjid

Ghat Road, South

K. No. 5

13. 97, Daryaganj 320 sq. yds. Eat Road, West for residential

Delhi. Sham Lal Road use of govt.

North-Kothi No. 96 servants.

South - Kothi No. 98

14. M.C. No. 500 to 1595 sq. yds East-House, West Housing the

507, Ward No. IX/6062, Gali, North-Gali govt. offices

Gandhi Nagar (4 set of South - Gali

Old Police Station, Gandhi

Nagar, Seelampur)

--------------------------------------------------------------------------------------------

----------------

By order

Sd/-

(Mrs. Neeru Singh)

Joint Secretary (L&B)

Delhi Administration,

Delhi".

Under this notification, 14 properties were sought to

be acquired.

Banwari Lal and Sons filed writ petition No.

2385/88 seeking quashing of the aforesaid notification

in respect of property 6, Ansari Road, Darya Ganj,

Delhi. The purpose of acquisition of this property was

mentioned as for "residential use of government

servants". This property No. 6 Ansari Road, Dariya

Ganj measures 5592 sq. yds., with built up area of

about 6,000 sq. ft. It is situated in the main

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commercial centre of Delhi and was being used all along

for commercial purpose by Bharat Bank and then by the

American Embassy for running the United States

Information Centre. On 27.9.1950, four flats out of

the said building were acquisitioned by the Delhi

Administration under the provisions of Requisitioning

and Acquisition of Immovable Property Act, 1952.

Further on 13.3.1959, remaining building along with the

garages, warehouses and other structures was

requisitioned by the Administration under the same Act.

The building continued under the requisition till the

said Act lapsed on 10.3.1987. It may be recalled that

notification under Section 4 read with Section

17(1)&(4) of the Act was issued on 6.3.1987 for

acquiring 14 properties including this building, 6

Ansari Road, Darya Ganj, Delhi. On 10.3.1987, Delhi

Administration issued notification under Section 6 of

the Act and issued a letter to the Collector to take

possession of the property within 15 days. Thereafter

the Administration proposed to the writ petitioners

that the building be given on lease and the

negotiations for lease were continued for long. The

officers of the Administration continued to stay in the

building for over 20 months. Suddenly, the

Administration decided to proceed with land acquisition

after a period of 20 months. At that stage, the above-

mentioned writ petition was filed. On 25.11.1988, the

High Court directed that the possession of the building

was not to be taken by the Administration under Section

17 of the Land Acquisition Act but the acquisition

proceedings could go on. Thereafter, award was passed

fixing compensation at Rs. 77,11,230.60. Petitioners

were ready to receive the compensation under protest

but the Administration did not make the payment. It

also did not offer the payment of 80% of the proposed

compensation under Section 17(3A) of the Act. Mainly

three grounds were urged in the writ petition : (1) the

notification issued under Section 4 and Section 17 did

not indicate the urgency for taking possession and,

therefore, the same was vitiated in law; petitioners

were illegally deprived of their right to raise

objections and inquiry under Section 5A of the Act; (2)

the Administration could not acquire commercial

building for residential purpose; (3) that the whole

exercise of acquisition of the building was a fraud on

the powers under the Act. On behalf of the

Administration, it was contended that the building was

urgently needed for the residence of the officers, the

building was being used for residential purpose for a

long time and for payment of amount under sub-section

(3A) of Section 17, steps had been taken for securing

the sanction. The High Court dealing with the

contentions raised in the said writ petition held that

there was no whisper in the notification as to what was

the urgency to take immediate possession and to deny

the right of raising objections under Section 5A of the

Act; the building was already in occupation of the

officers of the Delhi Administration and the

Administration knew that the Requisitioning and

Acquisition of Immovable Property Act, 1952 was to

lapse on 10.3.1987; they had sufficient time to make

alternate arrangements for the residence of the

officers and that there was no urgency whatsoever for

invoking the provisions of Section 17(1)&(4) of the

Act. The court also held that Section 17(1) could not

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be utilized to cover up the laxity and lethargy of the

Administration in taking appropriate steps for securing

alternate accommodation for its officers. The

notification was also held bad in law for non-

compliance of the requirement of Section 17(3A) of the

Act, in that the Collector did not tender 80% of the

compensation of the land as estimated by him before

taking possession of the land and that the Delhi

Administration had no explanation for the non-

compliance of Section 17(3A) except saying that process

of sanction had been initiated by them. The High court

also held that issuing of notification under Section

17(1) was a fraud on the powers. In that view, the

notification was quashed and direction was given to

hand over the peaceful physical possession of the

building to the petitioner. An arbitrator also was

appointed to determine the damages payable by

Administration having taken note of the facts and to

avoid further delay. The Union of India and Ors. filed

SLP No. 4458/91, aggrieved by this order of the High

Court dated 4.2.1991 made in the writ petition. The

SLP was dismissed on 21.3.1991 by passing the following

order:-

"In the facts and circumstances of the

case, we do not find any good ground to

interfere with the impugned order of the

High Court. The Special Leave Petition

is accordingly dismissed.

Although we have dismissed the

petition but having regard to the fact

that public servants are residing in the

premises in dispute and their immediate

dispossession may cause injury to public

interest, we allow the petitioners to

continue in possession till 31.3.1993

provided the petitioners file an

undertaking in this Court within three

weeks with usual conditions to hand over

the vacant possession of the premises

including the servant quarters on or

before 31.3.1993, we further make it

clear that the Arbitrator appointed by

the High Court may give award and the

same may be filed before the High Court

for appropriate orders."

(emphasis supplied)

Shakuntala Gupta filed writ petition No. 894 of

1987 inter alia raising similar contentions as were

raised in Banwari Lal case (supra). The High Court

allowed the said writ petition and quashed the

notification following the order made in the case of

Banwari Lal and Sons aforementioned. The Union of

India and Ors. filed Civil Appeal No. 518 of 1998

before this Court by special leave. This Court disposed

of the said appeal on 14.11.2000 observing thus:-

"The High Court quashed the impugned

notification by following its earlier

decision in Banwari Lal & Sons vs. Union

of India decided on 4th February, 1991

in which this very notification was

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quashed. It is not in dispute that

subject matter including the

notification under Land Acquisition were

the same except that in Banwari Lal it

was the government housing for the

officers while in the present case it is

housing for the offices. The said

decision of the High Court stood

confirmed when this Court dismissed the

SLP filed by the Union of India. We do

not find any sustainable ground raised

in the present appeal to make any

distinct or difference from the one in

the case of Banwari Lal and Sons.

Accordingly, there is no error committed

by the High Court in making the decision

and dismissing the same. Accordingly

the present appeal has no merits and it

is dismissed."

Further Union of India and Ors. filed a review petition

(c) No. 74 of 2001 in aforementioned appeal No. 518/98.

The review petition was disposed of on 27.8.2002 by a

considered order in the light of contentions urged and

arguments advanced extensively. The said order is

reported as Union of India and Ors vs. Shakuntala Gupta

(Dead) by Lrs. [(2002) 7 SCC 98].

The learned counsel for the respondents heavily

relied on this decision and contended that it fully

covers the case against the appellants; in view of the

same, it is not open to the appellants particularly

being the parties to the said decision, to re-agitate

on the same issue again when the notification being

composite one in respect of all 14 properties sought to

be acquired under it and when the ground of urgency was

also common in respect of all the 14 properties. But

according to the learned counsel for the appellants,

the correctness of decision in Banwari Lal is not

decided in this case and it is clearly distinguishable

in applying to the facts of the cases in these appeals.

In other words, the decision in Shakuntala Gupta is

confined to its own facts. In the light of these

submissions and that this decision will have great

bearing on the question in deciding these appeals

whether urgency clause could be invoked under Section

17(1)&(4) of the Act, the notification being composite

one in respect of all 14 properties including the

properties which are the subject matter of these

appeals, we will refer to the decision in greater

details. In the case of shakuntala Gupta, part of the

premises known as Grand Hotel situated at No. 2,

Underhill Road, Delhi, had been requisitioned on

3.4.1980 under the Requisition and Acquisition of

Immovable Property Act, 1952, which lapsed on

10.3.1987. On 6.3.1987, the very same notification,

which is also the subject matter of these appeals, was

issued under Section 4 read with Section 17(1) and (4)

of the Act. In this notification, 14 properties were

specified to which it applied. This notification also

indicated purpose for which each property was sought to

be acquired, the purpose being either "housing the

Govt. office" or "for residential use of Govt.

servants".

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Shakuntala Gupta challenged the notification

issued under Section 4 read with Section 17(1)&(4) as

well as the declaration made under Section 6 of the Act

under Article 226 of the Constitution of India before

the High Court. As already stated above, Banwari Lal

and Sons Pvt. Ltd., the owner of one of the 14

properties specified in the notification, also filed

writ petition in the High Court impugning the same

notification inter alia urging that there was no

urgency to dispense with the right of the owner to file

objections and inquiry under Section 5A of the Act.

Banwari Lal's writ application was allowed on 4.2.1991

quashing the impugned notification upholding the

contentions urged on behalf of Banwari Lal including

the issue of urgency. The SLP filed against the

decision of the High Court in Banwari Lal case was

dismissed by this Court on 21.3.1991. The appellants

vacated the Banwari Lal's premises pursuant to the

order of this Court made on 21.3.1991. The Division

Bench of the High Court disposed of Shakuntala Gupta's

writ petition following Banwari Lal's case quashing the

impugned notification. In the SLP filed against the

said order by the appellants, leave was granted on

19.1.1998 and hearing of the appeal was expedited. The

appeal was duly listed for hearing from time to time

and ultimately on 14.11.2000, the appeal was disposed

of by a reasoned order, relevant portion of which is

already extracted in the earlier paragraph. Later the

appellants made an application for recalling the order

dismissing the appeal on the ground that it was

disposed of without hearing them. On 10.1.2001,

accepting the request of the appellants, the

application made for recalling the order dated

14.11.2000 was treated as a review petition and the

review petition was accordingly heard. In support of

the review petition, relying on the decisions of this

Court in Aflatoon & Ors. vs. Lt. Governor of Delhi &

Ors. [(1975) 4 SCC 285], Deepak Pahwa & Ors. vs. Lt.

Governor of Delhi & Ors. [(1984) 4 SCC 308], Satendra

Prasad Jain & Ors. vs. State of U.P. & Ors. [(1993) 4

SCC 369] and Chameli Singh & Ors. vs. State of U.P. &

Anr. [(1996) 2 SCC 549], it was urged that the

principles of law enunciated in Banwari Lal's case no

longer held the field. On that basis, it was contended

that the decision of the High Court quashing the

impugned notification by following Banwari Lal's

decision was erroneous. Opposing the review petition,

it was urged that the review petition itself was not

maintainable as there was no error apparent on the face

of the record; the same notification stood quashed in

Banwari Lal's case; since the impugned notification had

been quashed on a general ground which did not

specifically relate to a particular petitioner, the

quashing of the notification must enure to the benefit

of all persons affected by that notification. In

support of this, reliance was placed on Abhey Ram

(Dead) by LR. & Ors. vs. Union of India & Ors. [(1997)

5 SCC 421] and Delhi Administration vs. Gurdip Singh

Uban & Ors. [(2000) 7 SCC 296]. The review petition was

disposed of on 27.8.2002 since reported in [(2002) 7

SCC 98]. To appreciate the rival submissions as to the

implication and understanding of this judgment, it is

necessary to reproduce paras 12, 13 and 15 of the

judgment which read:-

"12. The matter has been argued extensively. We

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therefore do not propose to reject the application

on the ground that the review application should not

at all be entertained. It is also not necessary to

consider whether the decision in Banwari Lal

(Banwari Lal & Sons (P) Ltd. v. Union of India, DLJ

1991 Supp 317) correctly enunciates the principles

of law as to acquisitions under Section 17 of the

Act as we are of the view that the order of this

Court dated 14-11-2000 was, in the circumstances of

the case, correct.

13. It appears that the petitioners have proceeded

on the basis that the acquisition sought to be

effected by the impugned notification under Section

4 had been invalidated in respect of other specified

properties by the decision of this Court in Banwari

Lal case. The statement in the respondent's

affidavit that several of the properties covered by

the same notification have since been returned by

the petitioners to the original owners has not been

disputed by the petitioners. Furthermore, the High

Court in the decision impugned before us has also

noted:

"It is also not disputed that under the

impugned notifications neither an award has

been made nor any compensation is

determined and paid. The reason being that

the impugned notifications were quashed and

set aside in Banwari Lal case.

14 .......................................

15. In any event the order dated 14-11-2000 was

not legally erroneous. The notification under

Section 4 was a composite one. The "opinion" of the

Lt. Governor that the provisions of Section 17(1) of

the Act were applicable, as expressed in the last

paragraph of the impugned notification, was

relatable in general to the 14 properties specified

in the notification. The impugned notification was

quashed in Banwari Lal case (Banwari Lal & Sons (P)

Ltd. v. Union of India, DLJ 1991 Supp 317) inter

alia on the ground that the "opinion" of the Lt.

Governor as expressed in the notification was

insufficient for the purpose of invoking the

provisions of Section 17(1) of the Act. This ground

was not peculiar to the premises in Banwari Lal case

(Banwari Lal & Sons (P) Ltd. v. Union of India, DLJ

1991 Supp 317) but common to all fourteen

properties. The urgency sought to be expressed in

the impugned notification cannot be held to be

sufficient for the purposes of Section 17(1) in this

case when it has already been held to be bad in

Banwari Lal case. (Abhey Ram v. Union of India,

(1997) 5 SCC 421; Delhi Admn. v. Gurdip Singh Uban,

(2000) 7 SCC 296). The expression of urgency being

one cannot be partly good and partly bad like the

curate's egg. It must follow that the acquisition in

respect of the respondent's premises as mentioned in

the notification which were sought to be acquired on

the basis of such invalid expression of "urgency"

cannot be sustained."

(emphasis supplied)

It is needless to repeat that a judgment need not

be read and interpreted as a statute and that a

judgment should be read and understood in the context

of the facts of case and looking to the ratio. The

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sentence in paragraph 12, extracted above, that "It is

also not necessary to consider whether the decision in

Banwari Lal correctly enunciates the principles of law

as to acquisitions under Section 17 of the Act as we

are of the view that the order of this Court dated

14.11.2000 was, in the circumstances of the case,

correct", has reference to enunciation of principles

of law in relation to Section 17 as to the expression

of urgency as stated in Banwari Lal, i.e., to whether

the existence of urgency and expression of urgency must

be specifically stated in the notification issued under

Section 4(1) read with Section 17(1) of the Act and if

not whether the notification is vitiated. In view of

the later decisions of this Court, even in the absence

of stating as to the existence of urgency or express

statement as to urgency, the issue of urgency could be

justified on the basis of the surrounding circumstances

and the records available at the time of subjective

satisfaction of authorities to invoke the aid of

Section 17(1)&(4). It is in that context that the

statement is made in para 12 not with regard to the

validity of the impugned common notification in respect

of all the 14 properties which fact is abundantly clear

from what is stated specifically in para 15 of the

judgment extracted above in relation to sustainability

of the impugned notification or otherwise in respect of

one or other property. On this basis, the court had

held that the expression of urgency in the common

notification being general to all 14 properties could

not be sustained in respect of any particular property,

on the ground that the expression of urgency being one

and the same cannot be partly good and partly bad. In

the same para, the decision in Banwari Lal that the

impugned common notification was bad, is accepted. As

is evident from paragraph 13 that pursuant to the

impugned notification, neither any award was passed nor

any compensation was determined and paid on the ground

that the impugned notification was quashed and set

aside in Banwari Lal case. This only indicates that

even the appellants understood the impugned

notification as a common and composite notification in

respect of all the 14 properties. The ground of

urgency also being common, it is not possible to accept

that the decision rendered in the cases of Banwarl Lal

or Shakuntala Gupta on the question of urgency was

properties specific. The decision in Banwari Lal and

Shakuntala Gupta of this Court in relation to the same

notification may not be binding on principle of res

judicata. The argument, however, cannot be accepted

that those decisions are not binding being 'properties

specific' in those cases. In our considered opinion,

the decisions are binding as precedents on question of

validity of the notification, which invokes urgency

clause under Section 17 of the Act. We find ourselves

in full agreement with the ratio of the decisions in

those cases that urgency clause, on the facts and

circumstances, which are similar to the present cases,

could not have been invoked. The two decisions are,

therefore, binding as precedents of this Court. We are

not able to find any distinction or difference as to

the ground of urgency in regard to the properties

covered by these appeals.

In the order disposing of the appeal on

14.11.2000, it is clearly stated that the High Court

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quashed the impugned notification following its earlier

decision in Banwari Lal's case; the subject matter

including the notification under the Act was the same

except that in Banwari Lal's case, it was the Govt.

housing for the officers while in the Shakuntala

Gupta's case, it is housing for the offices. No

sustainable ground was found in the appeal to make any

distinction or difference between the case of Banwari

Lal and Shakuntala Gupta. In review, this order was

not disturbed. In Banwari Lal's case on the facts

found and looking to the circumstances in the

background of lapsing of the Requisitioning Act and

taking note of laxity and lethargy on the part of the

officers, the Court concluded that there existed no

urgency to invoke Section 17(1) of the Act. This

notification was struck down not merely on the ground

that the existence of urgency is not stated in the

impugned notification. The ground of urgency was common

to all 14 properties. It is not the case that the

ground of urgency was different in respect of different

properties which fact is clear from the composite

notification. Further it was also not shown either in

Banwari Lal's case or in Shakuntala Gupta's case if the

ground of urgency was different in respect of different

properties. In this view and looking to what is stated

in paragraph 15, extracted above, we find substantial

force in the preliminary objection raised on behalf of

the respondents. However, in the light of arguments

advanced at length, we wish to deal with them.

The provisions of the Act, to the extent they are

relevant, are reproduced hereunder:-

"Section 4 - Publication of preliminary

notification and powers of officers thereupon

- (1) Whenever it appears to the

(appropriate Government) that land in any

locality (is needed or) is likely to be

needed for any public purpose (or for a

company) a notification to that effect shall

be published in the Official Gazette ( and in

two daily newspapers circulating in that

locality of which at least one shall be in

the regional language) and the Collector

shall cause public notice of the substance of

such notification to be given at convenient

places in the said locality (the last of the

dates of such publication and the giving of

such public notice, being hereinafter

referred to as the date of the publication of

the notification).

(2) Thereupon it shall be lawful for any

officer, either generally or specially

authorized by such Government in this behalf,

and for his servants and workmen, -

to enter upon and survey and take levels

of any land in such locality;

to dig or bore in the subsoil;

to do all other acts necessary to

ascertain whether the land is adapted for

such purpose;

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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);

to make 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 lines marked, to cut down and

clear away any part of the standing crop,

fence of jungle;

provided that no person shall enter into

any building or upon any other 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."

"Section 5A - 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 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 authorized 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 purpose 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."

"Section 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 land needed for a public purpose].

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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;

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-eighty 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) ................................

(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

(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.

(3B) ..............................

(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

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the provisions of section 5A shall not

apply, and, if it does so direct, a

declaration may be made under section 6

in respect of the land at any time

[after the date of the publication of

the notification under section 4, sub-

section (1)."

These provisions clearly provide protection to a

person whose land is to be acquired by providing right

to object to the proposed acquisition of any land

notified under Section 4; opportunity of hearing is

also provided to show that the proposal to acquire the

land was unwarranted; such opportunity available under

Section 5A cannot be denied except in case of urgency.

Section 17 confers extraordinary powers on the

authorities under which it can dispense with the normal

procedure laid down under Section 5A of the Act in

exceptional case of urgency. Such powers cannot be

lightly resorted to except in case of real urgency

enabling the Government to take immediate possession of

the land proposed to be acquired for public purpose. A

public purpose, however, laudable it may be, by itself

is not sufficient to take aid of Section 17 to use this

extraordinary power as use of such power deprives a

land owner of his right in relation to immoveable

property to file objections for the proposed

acquisition and it also dispenses with the inquiry

under Section 5A of the Act. The Authority must have

subjective satisfaction of the need for invoking

urgency clause under Section 17 keeping in mind the

nature of the public purpose, real urgency that the

situation demands and the time factor i.e. whether

taking possession of the property can wait for a

minimum period within which the objections could be

received from the land owners and the inquiry under

Section 5A of the Act could be completed. In other

words, if power under Section 17 is not exercised, the

very purpose for which the land is being acquired

urgently would be frustrated or defeated. Normally

urgency to acquire a land for public purpose does not

arise suddenly or overnight but sometimes such urgency

may arise unexpectedly, exceptionally or

extraordinarily depending on situations such as due to

earthquake, flood or some specific time-bound project

where the delay is likely to render the purpose

nugatory or infructuous. A citizen's property can be

acquired in accordance with law but in the absence of

real and genuine urgency, it may not be appropriate to

deprive an aggrieved party of a fair and just

opportunity of putting forth its objections for due

consideration of the acquiring authority. While

applying the urgency clause, the State should indeed

act with due care and responsibility. Invoking urgency

clause cannot be a substitute or support for the

laxity, lethargy or lack of care on the part of the

State Administration.

Life of Requisitioning and Acquisition of

Immovable Property Act, 1952 was extended from time to

time by various amending Acts. Finally by Act No. 20

of 1985, the period was extended to retain the

properties under the said Act for a maximum period of

two years which expired on 10.3.1987. The Statement of

Objects and Reasons of this Act - No. 20 of 1985 are as

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follows:-

"According to the provisions of the

Requisitioning and Acquisition of Immovable

Property Act, 1952 as these existed

immediately before the amendment of the Act

by ordinance No. 2 of 1985, all the

properties, which were requisitioned prior to

the amendment of the aforesaid Act in 1970,

were required to be released from requisition

or acquired by the 10th March, 1985.

However, it was found that some of the

properties requisitioned under the above Act

are required to be retained by the Ministry

of Defence, Ministry of Works and Housing and

also some other Ministry/Department and Delhi

Administration for public purposes. Although

Government is expeditiously implementing the

policy of acquiring or releasing from

requisition the requisitioned properties, a

number of them are expected to be needed by

the Government even after the 10th March,

1985, for public purposes. The Ministry of

Defence is taking action for either releasing

or acquiring the requisitioned properties

(including land). Similarly, in the case of

Ministry of Works and Housing, the need to

continue the properties under requisition

beyond the aforesaid date is due to shortage

of office accommodation for various

Ministry/Departments and also due to a few

cases being under adjudication by courts of

law. The Ministry of Works and Housing has

constructed a new office building in Calcutta

for the Govt. offices located in

requisitioned properties and, therefore, most

of the requisitioned properties in Calcutta

are expected to be released from requisition

shortly. An office building is nearing

completion in New Bombay also and the same is

likely to be allotted as alternative

accommodation to the eligible offices located

in requisitioned properties. It was,

therefore, decided to extent the maximum

period for which properties could be retained

under requisition by a period of two years.

2. ................................

3. In the circumstances stated above, the

Act was amended through the Requisitioning

and Acquisition of Immovable Property

(Amendment) Ordinance, 1985 (2 of 1985) so as

to extend the period for which the properties

could be retained under requisition by two

years and to provide for revision of the

recurring part of the compensation."

(emphasis supplied)

This Court in the case of H.D. Vora vs. State of

Maharashtra & Ors. [1984 (2) SCR 693] dealing with the

scope of Requisitioning and Acquisition of Immovable

Property Act, 1952 in relation to length of the period

for which the properties requisitioned could be

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continued, has observed thus:-

"The two concepts, one of requisition and the other

of acquisition are totally distinct and independent.

Acquisition means the acquiring of the entire title

of the expropriated owner whatever the nature and

extent of that title may be. The entire bundle of

rights which was vested in the original holder passes

on acquisition to the acquirer leaving nothing to the

former. Vide : Observations of Mukherjee, J. in

Chiranjit Lal case (Chiranjit Lal v. Union of India,

1950 SCR 869 : AIR 1951 SC 41). The concept of

acquisition has an air of permanence, and finality in

that there is transference of the title of the

original holder to the acquiring authority. But the

concept of requisition involves merely taking of

"domain or control over property without acquiring

rights of ownership" and must by its very nature be

of temporary duration. If requisitioning of property

could legitimately continue for an indefinite period

of time, the distinction between requisition and

acquisition would tend to become blurred, because in

that event for all practical purposes the right to

possession and enjoyment of the property which

constitutes a major constituent element of the right

of ownership would be vested indefinitely without any

limitation of time in the requisitioning authority

and it would be possible for the authority to

substantially take over the property without

acquiring it and paying full market value as

compensation under the Land Acquisition Act, 1894. We

do not think that the Government can under the guise

of requisition continued for an indefinite period of

time, in substance acquire the property, because that

would be a fraud on the power conferred on the

government. If the Government wants to take over the

property for an indefinite period of time, the

Government must acquire the property but it cannot

use the power of requisition for achieving that

object. The power of requisition is exercisable by

the Government only for a public purpose which is of

a transitory character. If the public purpose for

which the premises are required is of a perennial or

permanent character from the very inception, no order

can be passed requisitioning the premises and in such

a case the order of requisition, if passed, would be

a fraud upon the statute, for the Government would be

requisitioning the premises when really speaking they

want the premises for acquisition, the object of

taking the premises being not transitory but

permanent in character. Where the purpose for which

the premises are required is of such a character that

from the very inception it can never be served by

requisitioning the premises but can be achieved only

by acquiring the property which would be the case

where the purpose is of a permanent character or

likely to subsist for an indefinite period of time,

the Government may acquire the premises but it

certainly cannot requisition the premises and

continue the requisitioning indefinitely. Here in the

present case the order of requisition was made as far

back as April 9, 1951 and even if it was made for

housing a homeless person and the appellant at that

time fell within the category of homeless person, it

cannot be allowed to continue for such an

inordinately long period as third years. We must

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therefore hold that the order of requisition even if

it was valid when made, ceased to be valid and

effective after the expiration of a reasonable period

of time. It is not necessary for us to decide what

period of time may be regarded as reasonable for the

continuance of an order of requisition in a given

case, because ultimately the answer to this question

must depend on the facts and circumstances of each

case but there can be no doubt that whatever be the

public purpose for which an order of requisition is

made, the period of time for which the order of

requisition may be continued cannot be an

unreasonably long period such as thirty years. The

High Court was, therefore, in any view of the matter,

right in holding that in the circumstances the order

of requisition could not survive any longer and the

State Government was bound to revoke the order of

requisition and derequisition the flat and to take

steps to evict the appellant from the flat and to

hand over vacant possession of it to the third

respondent."

(emphasis supplied)

In these appeals also, the properties in question

had been under requisition for a very long time. It

appears, the Union Works and Housing Minister on

28.3.1985 assured the Lok Sabha that the Government

would return all requisitioned properties within two

years or acquire it permanently after paying

compensation. This announcement came at the end of the

debate on the Requisitioning and Acquisition of

Immovable Property (Amendment) Bill, 1985 which later

became Act. From the debate, it is also clear that the

National Conference Member mentioned about the

difficulties faced by many people whose properties were

requisitioned for one purpose or the other. The

Minister informed that he had written letter to the

concerned for making arrangements for vacating or

permanently acquiring the properties within next two

years.

The Office Memorandum dated 9.7.1979 reads:-

"Delhi Administration, Delhi

(Public Works Department)

Vikas Bhawan, New Delhi.

No. F.13/22/79-PWD/Allot/8397 Dated

9.7.1979

OFFICE MEMORANDUM

Due to amendment in the

Requisitioning and Acquisition of

Immovable Property Act, 1952 and as per

Decision of the Executive Council all the

requisitioned/leased houses which are with

the Administration for more than 10 years

are to be released to their owners

immediately. As such it has since been

decided by the Administration to compile a

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priority list of the occupants of

requisitioned/leased houses with a view to

allot them alternative accommodation on

priority basis. All the occupants of

requisitioned/leased houses are requested

to furnish the relevant information in the

enclosed performa by 16.7.1979 failing

which, the officer concerned will be

liable for eviction from requisitioned

house without provision for alternative

accommodation. This may please be noted.

( L.d. Gupta)

Under Secretary (PWD)

Shri K.K. Kamra,

Exchange Stores

13, Alipur Road, Delhi

Despatcher,

P.W.D./L.S.G Deptt.

Delhi Administration

I.P. Estate, N.Delhi-110001"

(emphasis supplied)

One more aspect to be noticed is, as observed by

the High Court, that the properties in question

continued to be in possession of the appellants; in

other words, there was no urgency of taking immediate

possession nor there was any immediate threat of

dispossessing them from the properties. At the most,

after the lapsing of the Requisition Act on 10.3.1987,

their possession over the properties would have been

unauthorized, may be so long they continued in

unauthorized possession of the properties, they were

liable to pay damages for their occupation for few

months during which period they could have completed

acquisition proceedings in the normal course without

resorting to provisions of Section 17 (1) & (4) of the

Act. During the course of the hearing, we specifically

asked the learned counsel for the appellants in this

regard, the only answer was that the appellants being

Union of India & others did not want to remain in the

unauthorized possession of the properties. We are not

convinced by this reply so as to justify invoking

urgency clause to acquire the properties. Having regard

to the facts and circumstances of the case in these

appeals, the authorities could have completed

acquisition proceedings in couple of months even after

providing opportunity for filing objections and holding

inquiry under Section 5A of the Act if they were really

serious.

In the Objects and Reasons of Act No. 20 of 1985,

it is stated that all the properties which were

requisitioned prior to the amendment of the Act in 1970

were required to be released from requisition or

acquired by March 10, 1985; although Government is

expeditiously implementing the policy of acquiring or

releasing from requisition the requisitioned

properties, a number of them are expected to be needed

by the Government even after the 10th March, 1985 for

public purposes; the Ministry of Defence is taking

action for either releasing or acquiring the

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requisitioned properties. It was, therefore, decided

to extend the maximum period for which the properties

could be retained under requisition by a period of two

years. Thus, it is clear that the authorities were

aware that the properties were to be released or

acquired and the maximum period was extended upto two

years for the purpose. From 1985 to 1987 they had

sufficient time to acquire the properties in question

in the usual course. They had enough time to provide

opportunity for filing objections and holding inquiry

under Section 5A of the Act. There was no need to

invoke Section 17 of the Act. The Office Memorandum

dated 19.7.1979 extracted above shows that the

Executive Council took the decision in view of the

amendment in the Requisition and Acquisition of

Immovable Property Act, 1952 with all the

requisitioned/leased houses which were with the

Administration for more than 10 years were to be

released to their owners immediately and all the

occupants of requisitioned/leased houses were requested

to furnish the relevant information by 16.7.1979

failing which the officer concerned will be liable for

eviction from the requisitioned house without provision

for alternative accommodation. Here again, it is clear

that the authorities were in know of the situation in

the year 1979 itself. Further the minutes of the

meeting held on 8.4.1985 in the room of Secretary

(PWD/L&D), Delhi Administration, Delhi show that the

position regarding all the requisitioned properties in

Delhi which were requisitioned under the 1952 Act was

reviewed. The said meeting was attended by (1)

Secretary (PWD&L&D), (2) Joint Director (Training), (3)

Additional District Magistrate (Registration) and Under

Secretary (LA). In the said meeting, it was decided

that all the pre-1970 residential buildings which were

partially requisitioned and were not in full occupation

of Delhi Administration should be de-requisitioned in

stages.

It was noted that some of the requisitioned

buildings which were fully occupied for

residential/office purposes by the various departments

of the Delhi Administration and which buildings are

essentially required for the functioning of such

departments should be acquired under the Act.

Shri V.N. Khanna pointed out that in cases where

the buildings/properties were to be acquired under the

Act, 80% of the compensation was to be given at the

stage of notice itself.

In this meeting, cases of requisitioned buildings

were reviewed in details and recommendations were made

in respect of each property.

It was also noticed that the acquisition of

buildings was going to be prolonged affair; initially

those properties which have been surveyed by ADM

(Requisition) and recommended for acquisition/de-

requisitioning vide letter dated 27.3.1985 may be taken

up.

Thus, from the Statement of Objects and Reasons of

the Act 20 of 1985, Statement by the concerned Minister

to Lok Sabha on 28.3.1985, the Office Memorandum

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aforementioned and the minutes of meeting dated

8.4.1985, it is sufficiently clear that the appellants

were fully aware that they had to make arrangements

either for acquiring the properties or de-

requisitioning them by making alternate arrangement

within a period of two years i.e. upto 10.3.1987

inasmuch as no further extension of the Requisition Act

was possible. Further having regard to the

observations made by this Court in the case of Vora

(supra), there would have been no justification for the

appellants to continue properties in question under the

Requisitioning Act any more. If the appellants were

really serious in acquiring the properties in question,

they had almost 2 years time even after taking the

decision to acquire them or derequisition them within

which time, acquisition proceedings could be completed

in the usual course without depriving the respondents

of their valuable right to file objections for

acquisition and without dispensing with inquiry under

Section 5A of the Act.

The High Court was not right in holding that

without expression of urgency in the impugned

notification itself, it could not be sustained, but

then the High Court did not rest its conclusion only on

this. Having examined the facts and circumstances of

the case, it was found that there was no material and

the circumstances even to have subjective satisfaction

by the authorities to invoke urgency clause under

Section 17 of the Act. This urgency was common in

respect of all the 14 properties as already noticed

above in the cases of Banwari Lal as well as Shakuntala

Gupta aforementioned. The finding of fact that there

was no urgency for invoking Section 17 has become

final. This finding holds good even for these appeals.

Having regard to the facts and circumstances and the

material available on record, we are of the view that invocation

of urgency clause was without justification and was untenable as

held in Banwari Lal and Shakuntala Gupta. This Court in State of

Punjab & Anr. vs. Gurdayal Singh & Ors. [(1980) 2 SCC 471] as to

the use of emergency power under Section 17 of the Act has

observed that "it is fundamental that compulsory taking of a

man's property is a serious matter and the smaller the man the

more serious the matter. Hearing him before depriving him is both

reasonable and pre-emptive of arbitrariness, and denial of this

administrative fairness is constitutional anathema except for

good reasons. Save in real urgency were public interest does not

brook even the minimum time needed to give a hearing land

acquisition authorities should not, having regard to Articles 14

(and 19), burke an enquiry under Section 17 of the Act. Here a

slumbering process, pending for years and suddenly exciting

itself into immediate forcible taking, makes a travesty of

emergency power."

In Om Prakash and Another vs. State of U.P. & Ors.

[(1998) 6 SCC 1] referring to State of Punjab vs.

Gurdiyal Singh (supra), this Court in para 21 has

observed that "according to the said decision, inquiry

under Section 5A is not merely statutory but also has a

flavour of fundamental rights under Articles 14 and 19

of the Constitution though right to property has no

longer remained a fundamental right, at least

observation regarding Article 14 vis-a-vis Section 5A

of the Land Acquisition Act would remain apposite."

In the present appeals, the appellants have not been

able to show before the High Court any genuine

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subjective satisfaction depending upon any relevant

material available to the State authorities at the time

when they issued the impugned notification under

Section 4(1) of the Act and dispensed with Section 5A

inquiry taking aid of Section 17(4) of the Act. A

bench of three learned Judges of this Court in Narian

Govind Gavate & Ors. vs. State of Maharastra & Os.

[(1977) 1 SCC 133] has expressed that Section 17(4)

cannot be read in isolation from Section 4(1) and 5A of

the Act and has expressed that having regard to the

possible objections that may be taken by the land

owners challenging the public purpose, normally there

will be little difficulty in completing inquiries under

Section 5A of the Act very expeditiously. In the same

judgment, it is also stated that "The mind of the

officer or authority concerned has to be applied to the

question whether there is an urgency of such a nature

that even the summary proceedings under Section 5A of

the Act should be eliminated. It is not just the

existence of an urgency but the need to dispense with

an inquiry under Section 5A which has to be

considered."

The various decisions cited on behalf of the

appellants in support of their submission that there

was justification in invoking urgency clause for

acquiring the properties in question were on the facts

of those cases where either urgency was made out or

where it was shown that relevant material and data was

available at the time of issuing notification invoking

urgency clause. In the case of Deepak Pahwa & Ors. vs.

Lt. Governor of Delhi & Ors. [1984) 4 SCC 308] one of

the grounds raised was that long period of 8 years was

spent in inter-departmental correspondence which showed

that there was no urgency to invoke Section 17(4) of

the Act. In that context, the Court observed that

"Very often persons interested in the land proposed to

be acquired make various representations to the

concerned authorities against the proposed acquisition.

This is bound to result in a multiplicity of enquiries,

communications and discussions leading invariably to

delay in the execution of even urgent projects. Very

often the delay makes the problem more and more acute

and increases the urgency of the necessity for

acquisition." The Court proceeded on the assumption

that the pre-notification delay could have been caused

by representations made by the aggrieved parties but

this case is not an authority to say that in the

absence of material to justify urgency clause and long

delay in issuing the notification could be ignored or

condoned to uphold the validity of such notification.

In Chameli Singh & Ors. vs. State of U.P. & Anr.

[(1996) 2 SCC 549], the observations of the Court that

larger the delay, greater be the urgency was in the

context of the facts of that case having regard to the

public purpose involved therein for invoking the

urgency clause. In that case, the Court appeared to

think that very often the officials due to apathy in

the implementation of the policies and programmes of

the Government themselves adopt dilatory tactics which

leads the aggrieved party to challenge the invocation

of urgency. The Court took note of the fact that

urgency clause was invoked in that case for providing

house sites to the dalits and the poor which is a

national problem. This is not an authority to condone

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or ignore the laxity or lethargy or carelessness on the

part of the authorities in invoking urgency clause to

exercise special powers under Section 17 of the Act to

cover up their delay and laches without there being any

justification or material justifying invoking of

urgency clause. In the case of Union of India vs.

Ghanshyam Das Kedia [(1996) 2 SCC 285], this Court has

taken the view that the notification need not

specifically recite the nature of urgency and it is

enough if the records disclosed the consideration by

the Government on the urgency for taking action under

Section 17(1) & (4) of the Act. This position was not

disputed before the High Court and is also not

contested before us. The view of High Court in this

regard that the notification itself must specifically

state about the nature of urgency and in its absence

the notification gets vitiated, cannot be accepted.

But as already observed above, the High Court did not

quash the notification only on the ground of non-

mentioning of urgency in the impugned notification but

it has also independently considered and concluded that

no material was placed before the Court to show that

material and circumstances were available before the

authorities at the relevant time to invoke the urgency

clause to exercise powers under Section 17 of the Act.

'Urgency' for invoking of Section 17 of the Act should

be one arising naturally out of circumstances, which

exist when the decision to acquire the land is taken

and not such, which is the result of serious lapse or

gross delay on the part of Acquiring Authority.

However, the position may be different where the delay

is caused or occasioned by the landowner himself.

Failure to take timely action for acquisition by the

authorities of the Union of India cannot be a ground to

invoke the urgency clause to the serious detriment of

the right of the landowner to raise objections to the

acquisition under Section 5-A.

In Civil Writ Petition No. 229/92 filed by Sudhir

Choudhrie, (the respondent in SLP No. 9264/2003), a

contention was raised on behalf of the appellants

herein that the writ petitioner's case suffered from

delay and laches. The learned Single Judge having

regard to the facts and circumstances of the case

concluded that the writ petition could not be dismissed

on the ground of delay holding that the writ petitioner

had been pursuing his remedies in the court of law

against the proposed action of the appellants. The

Division Bench of the High Court in the order under

challenge in regard to the delay in filing the writ

petition agreeing with the learned Single Judge has

stated thus:-

"Before parting, we may however notice that

the appellant had raised a question of delay

in filing the writ petition by the first

respondent in writ petition No. 229/92 which

is the subject matter of LPA No. 10/1995.

However, the learned single Judge not only

accepted the explanation for the alleged

delay but also entertained the writ petition

and decided the same on merits. We,

therefore, are of the opinion that it is not

a fit case where this court should interfere

with the said judgment on the afore-mentioned

ground."

Ground of delay is not raised by the appellants in

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the SLP. In this view, the contention urged on behalf

of the appellants that the writ petition No. 229 of

1992 ought to have been dismissed on the ground of

delay and laches cannot be accepted.

The argument advanced by the learned counsel on

behalf of the appellants that the arbitrator could not

be appointed by the High Court in the absence of any

agreement for appointment of arbitrator to determine

the damages and there being no prayer in that regard in

the writ petition, cannot be accepted. This Court

dismissed the SLP No. 4458 of 1991 filed by the

appellants against the order dated 4.2.1991 made by the

High Court in Banwari Lal's case. While dismissing the

said SLP on 22.3.1991, may be in the light of the

argument made on behalf of the appellants that

arbitrator could not be appointed, this Court expressly

made it clear that the arbitrator appointed by the High

Court may give award and the same may be filed before

the High Court for appropriate orders. Civil Appeal

No. 518 of 1998 filed by the appellants against the

order made in the writ petition No. 894 of 1987 filed

by Shakuntala Gupta was disposed of by this Court on

14.11.2000 following Banwari Lal's case which included

appointment of arbitrator. In the said order, this

Court did not find any sustainable ground raised in the

appeal to make any distinction or difference from the

case of Banwari Lal and others. Hence it follows that

order of appointment of arbitrator made in Shakuntala

Gupta's case was also upheld by this Court. The

learned Single Judge passed the order in the writ

petition appointing arbitrator to determine the damages

payable by the Delhi Administration instead of making

the petitioners to run to the civil court for that

purpose after spending several years in the court. In

the impugned order, the Division Bench of the High

Court has upheld the same. Since the order appointing

arbitrator in the cases of Banwari Lal and Shakuntala

Gupta is upheld by this Court, we have no good reason

to take a different view. On the other hand, we are in

respectful agreement with the same having regard to the

facts and circumstances of the case.

The alternative argument urged on behalf of the

appellants that if the impugned notification suffers

from infirmity in relation to invoking urgency clause,

it can be quashed only to the extent of invoking the

aid of Section 17 and the said notification can be

sustained confining it to Section 4 of the Act, cannot

be accepted. Otherwise, the same common notification

stands quashed in respect of the few parties as in the

cases of Banwari Lal and Shakuntala Gupta and it stands

sustained in respect of others i.e. respondents in

these appeals leading to anomalous situation. Added to

this, if the argument, as advanced on behalf of the

Union, is accepted, the notification under Section 17

of the Act invoking urgency clause would stand quashed

but the landowner, would nonetheless be deprived of the

possession of the property as also payment of 80% of

compensation under Section 17(3A) of the Act. Such an

unjust result cannot be allowed to happen by quashing

the notification in part only to the extent of Section

17 of the Act and maintaining it for the purpose of

Section 4 of the Act. Thus, having regard to the facts

and circumstances brought on record in these appeals,

it is not possible to accept this argument particularly

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when the very foundation of invoking Section 17 was

invalid and unjustified as upheld by this Court in

Banwari Lal and Shakuntala Gupta.

Since we are of the view that the decisions in

Banwari Lal and Shakuntala Gupta cover these appeals

against the appellants, we do not consider it necessary

to deal with the contention that due to non-compliance

of sub-section (3A) of Section 17 of the Act, the

entire acquisition proceedings were vitiated. Further

when we are upholding the impugned common order on

other grounds, we do not wish to deal with this

contention.

One more contention urged on behalf of the

appellants in SLP (C) No. 5451/2003 namely that the

writ petition filed by the respondents being tenants

was not maintainable, is required to be dealt with. It

does not appear that this contention was urged before

the Division Bench of the High Court. In the light of

the decision of this Court in Municipal Corporation of

Greater Bombay vs. Industrial Development Investment

Co. Pvt. Ltd. & Ors. [(1996) 11 SCC 501], it cannot be

said that in no case, the tenant of the land which is

sought to be acquired under the provisions of the Act

can challenge the acquisition proceedings. It is clear

from Section 5A(3) of the Act that for the purpose of

the said 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. In

an appropriate case, a tenant having sufficient

subsisting interest in the land can challenge the

acquisition proceedings. In view of the facts and

circumstances of the case, the learned Single Judge did

not dismiss the writ petition as not maintainable on

the ground that the tenant could not maintain the writ

petition. The Division Bench of the High Court also did

not disturb the order of the learned Single Judge.

This apart, the very same notification being common is

quashed at the instance of other writ petitioners. In

this view, at this stage, the contention urged on

behalf of the appellants that writ petition filed by a

tenant was not maintainable cannot be accepted.

Thus, having regard to all aspects and for the

reasons stated and discussion made above, we do not

find any merit in these appeals. Hence, they are

dismissed. No costs.