REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6293 OF 2011
(Arising out of Special Leave Petition (C) No. 15151 of 2011)
Devendra Singh & Ors. .............. Appellants
versus
State of U.P. & Ors. ...........Respondents
J U D G M E N T
H.L. Dattu, J.
Leave granted.
2). This appeal, by special leave, is directed against the
Judgment and Order dated 08.10.2010 passed by the High Court of
Judicature at Allahabad in Civil Misc. Writ Petition No. 61903 of
2010 whereby, the writ petition filed by the appellants challenging
the acquisition of their land for construction of District Jail by
invoking Sections 17(1) and 17(4) of the Land Acquisition Act,
1894 (hereinafter referred to as “the Act”) was dismissed.
3). The facts of the present appeal are as follows:-
The District Magistrate, Jyotiba Phule Nagar, had sent a
proposal to the Principal Secretary, Home/Prisons Section 4,
Government of U.P. for acquisition of land situated at Amroha-
Naugawan Sadat Road for the construction of District Jail vide
letter dated 24.01.2003. After the gap of 5 years, the Special
Secretary, Prisons Administration and Reforms, Government of
U.P., had requested the District Magistrate to find the available
lands for acquisition, for the said purpose, in the proximity of the
District Head Quarters vide letter dated 16.01.2008. Subsequently,
the District Magistrate traced and informed the availability of such
lands in village Dasipur and other nearby villages for possible
acquisition to the Special Secretary vide letter dated 25.2.2008.
Thereafter, the Special Secretary directed the Selection Committee
to inspect the available lands regarding the feasibility of their
acquisition for the construction of Jail vide letter dated 22.04.2008.
Accordingly, the Selection Committee, after conducting detailed
spot inspection of the available lands, found and recommended that
the lands at village Dulhar Sant Prasad were suitable for
construction of Jail on 05.05.2008. In this backdrop, the
respondent had issued a notification dated 05.03.2010 under
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Section 4 read with Section 17(4) of the Act for acquisition of
20.870 hectares of land at village Dulhapur Sant Prasad, Tehsil
Amroha, Jyotiba Phule Nagar for public purpose of construction of
District Jail. The same was published in the local newspapers on
26.03.2010. The relevant part of the notification is extracted
below:
“UTTAR PRADEHS SHASAN KARAGAR
PRASHASAN EVEM SUDHAR ANUBHAG – 4
The Governor is pleased to order the publication
of the following English translation of Notification
No. 443/22-4-2010-101 (b) 2000 dated 05 March,
2010 for general information:
NOTIFICATION
No. 443/22-4-2010-101 (b) 2000
Lucknow: Dated 05 March 2010
Under subsection (1) of section 4 of the Land
Acquisition Act, 1894 (Act No. 1 of 1984 (sic.)), the
Governor is pleased to notify for general
information that the land mentioned in the
schedule below is needed for the public purpose
namely, for construction of the District Jail in
District Jyotiba Phule Nagar.
Being of opinion that provisions of subsection (1)
of section 17 of the said Act are applicable to the
said land in as much as the said land is urgently
required for construction of the District Jail in
District Jyotiba Phule Nagar and that in view of
the pressing urgency it is as well necessary to
eliminate to delay likely to be caused by an enquiry
under section 5-A of the said Act the Governor is
further pleased to direct, under subsection (4) of
section 17 of said Act, that the provisions of
section 5-A shall not apply.”
3
4). Since the appellants’ land was also included in the
notification, they made representations dated 07.04.2010 and
20.08.2010 to the Land Acquisition Officer, the District
Magistrate, Jyotiba Phule Nagar, the Chief Minister and the Home
Secretary, Government of U.P. with the request that their land may
not be acquired as they had raised construction of houses, tube
wells and lands are under cultivation. They also suggested the
availability of large tracts of alternative lands with no construction
and irrigation facility situated within one Kilometer towards North.
However, the concerned authorities did not reply to these
representations of the appellants. Subsequently, the appellants,
aggrieved by the said notification, filed Writ Petition No. 22252 of
2010 before the High Court of Judicature at Allahabad, which was
dismissed vide its Order dated 22.04.2010 without deciding any
issue on merits on the ground that the writ petition is premature as
the declaration under Section 6 has not been issued. The High
Court further granted liberty to the appellants to raise all the
available grounds, including the applicability of Sections 17(1) and
17(4) of the Act, in order to challenge the acquisition of their land
once the State Government proceeds to issue Notification under
Section 6(1) of the Act. Thereafter, the State Government issued a
Notification dated 06.08.2010 under Section 6 read with Section
4
17(1) of the Act whereby, it directed the Collector of Jyotiba Phule
Nagar to take possession of the said land on the expiry of 15 days
from the date of publication of the Notice under Section 9(1) even
in the absence of any award being made under Section 11.
Eventually, the Public Notice dated 03.09.2010 was issued, which
expressed the intention of the Government to take possession of the
said land, in which it was directed to the appellants to appear
before the Special Land Acquisition Officer, Jyotiba Phule Nagar.
The appellants, being aggrieved, filed a Writ Petition before the
High Court of Judicature at Allahabad interalia questioning the
correctness of the Notification dated 5.3.2010 issued under Section
4 read with Section 17(4) and Notification dated 6.8.2010 issued
under Section 6 read with Section 17(1) thereby dispensing with
the opportunity of hearing and enquiry under Section 5-A of the
Act. The High Court, vide its impugned Judgment and Order dated
8.10.2010, dismissed the Wirt Petition and allowed the respondents
to proceed further with acquisition of the said land in terms of the
Act on the ground that the construction of the District Jail is an
urgent matter which has been mentioned in the Notification under
Section 4 as the very purpose of acquisition of the land. Aggrieved
by this Judgment and Order of the High Court, the appellants are
before us in this appeal.
5
5). The issue involved in the present appeal for our
consideration is: Whether the respondent is justified in invoking
the urgency provision under Section 17(1) and excluding the
application of Section 5-A in terms of Section 17(4) of the Act for
acquisition of the land for construction of District Jail.
6). The learned counsel Shri. Prashant Kumar submits that the
district of Jyotiba Phule Nagar came into existence on 24.04.1997.
Since then, the State Government had not shown any kind of
urgency and was only considering the proposal of acquiring the
land for the public purpose of construction of the District Jail. It
was only in the year 2010 that the State Government had issued
Notifications under Sections 4 and 6, invoking urgency provision
as contemplated by the Sections 17(1) and 17 (4). In other words,
the lackadaisical attitude of the State Government since the
creation of the new district nearly 13 years ago does not exhibit or
depict any kind of urgency but only lethargy on their part in
acquiring the land. Therefore, the urgency contemplated in the Act
cannot be equated with dereliction of responsibility on the part of
the State Government. The learned counsel contends that the
respondents had unnecessarily invoked the urgency provisions
under Section 17 (1) read with Section 17 (4) for acquisition of the
6
land for construction of the District Jail in view of the delay of 13
years in the issuance of the Notification under Section 4 of the Act
and still, the said land is under the possession of the appellants.
The learned counsel argues that invoking of the urgency provisions
under Section 17(4), which excludes the application of Section
5-A, by the respondents in the absence of any real urgency as
contemplated by Section 17, amounts to illegal deprivation of the
right to file objection and hearing of the appellants under Section
5-A of the Act. He submits, relying on various decisions of this
Court, that the expropriatory legislation like Land Acquisition Act
must be given strict construction. He further submits that Section
5-A is a substantial right and akin to Fundamental Right which
embodies a principle of giving of proper and reasonable
opportunity to the land owner to persuade the authorities against
the acquisition of his land which can be dispensed with only in
exceptional cases of real urgency. The learned counsel relies on
the decision of this Court in Dev Sharan & Others v. State of U.P.
(2011) 4 SCC 769 in support of his contention that dispensing with
the opportunity of hearing and enquiry under Section 5-A of the
Act in view of prolonged lethargy of almost 13 years on the part of
respondents by invoking emergency provisions under Section 17 is
illegal and unjustified. The learned counsel has further cited catena
7
of Judgments of this Court in support of his arguments which has
already been dealt with by this Court in Radhy Shyam v. State of
U.P. (2011) 5 SCC 553.
7). Per Contra, the learned senior counsel Shri. K.K. Venugopal
submits that the newly created district of Jyotiba Phule Nagar does
not have a District Jail to lodge the prisoners of the district who are
presently accommodated in the Moradabad District Jail, wherein
the total population of inmates exceeds by more than three times
the capacity of the Jail, causing great hardships to inmates. Further,
producing of the prisoners from Moradabad Jail to various Courts
in Jyotiba Phule Nagar raises financial and security concerns. He
submits that since the creation of the new district, the State
Government has been making continuous efforts for acquisition of
land to construct the District Jail. However, the process of
construction of Jail could not be carried forward due to subsequent
dissolution of the district vide Notification dated 13.04.2004,
which was challenged before the High Court and later, the High
Court quashed the said Notification of Dissolution. Pursuant to this
Order of the High Court, the district was recreated in 2004. He
further submits that the State Government had issued a Notification
dated 5.3.2010 under Section 4 read with Section 17 (4) of the Act
8
for acquisition of the said land for public purpose of urgent
construction of Jail in the newly created district by invoking
Section 17(4) of the Act in order to eliminate delay likely to be
caused by enquiry under Section 5-A of the Act. Subsequently, in
view of the said urgency, the State Government had issued
Notification dated 6.8.2010 under Section 6 read with Section
17(1) of the Act and published it in the Newspaper along with a
Public Notice under Section 9 of the Act dated 20.08.2010, all
within a period of 5 months. Further, the respondents, after
hearing the objections and claims of the appellants dated
03.09.2010 regarding the compensation and measurement of the
land under Section 9 of the Act, handed over the possession of the
said land to the Senior Superintendent of Jails, Mordabad, on
07.01.2011. The learned senior counsel submits that there is no
lethargy or negligence on the part of the State Government to
acquire the said land. He further supports the observation of the
High Court in the impugned Judgment that construction of Jail is
an urgent matter requiring acquisition of the land by invoking
urgency provisions under Section 17 (1) and Section 17(4) thereby
dispensing with the enquiry under Section 5-A of the Act. He
further contends that the right of the citizens of filing of objections
and opportunity of hearing under Section 5-A are subject to the
9
provisions of Section 17 of the Act and the same can be legally
curtailed in the event of any pressing need and urgency for
acquisition of land in order to eliminate delay likely to be caused
by an enquiry under Section 5-A of the Act. The learned senior
counsel further submits that Dev Sharan’s Case (Supra) upon
which, the appellant had placed strong reliance is not relevant and
applicable to the present case because in that case, this Court
invalidated the acquisition of land by invoking urgency provisions
for construction of a new Jail when old Jail was already existed in
District Shahjahanpur but was located in a densely populated area
which needs to be shifted. Learned Senior Counsel has placed
reliance on the decisions of this Court in Deepak Pahwa v. Lt.
Governor of Delhi, (1984) 4 SCC 308 and Chameli Singh v. State
of U.P., (1996) 2 SCC 549 in support of his arguments that even
the delay and lethargy on the part of the respondents will not
disentitle them to invoke urgency provisions under Sections 17 of
the Act.
8). The issue before us is no more res integra as it has already
been decided by this Court in Radhy Shyam’s Case (Supra) in
which one of us was the party (G.S. Singhvi, J.) wherein this Court
has considered the development of the jurisprudence and law, with
10
respect to invoking of the urgency provisions under Section 17 vis-
`-vis right of the landowner to file objections and opportunity of
hearing and enquiry under Section 5-A of the Act, by referring to
plethora of earlier decisions of this Court. This Court had culled
out various principles governing the acquisition of the land for
public purpose by invoking urgency thus:
“From the analysis of the relevant statutory
provisions and interpretation thereof by this Court
in different cases, the following principles can be
culled out:
(i) Eminent domain is a right inherent in every
sovereign to take and appropriate property
belonging to citizens for public use. To put it
differently, the sovereign is entitled to reassert its
dominion over any portion of the soil of the State
including private property without its owner’s
consent provided that such assertion is on account
of public exigency and for public good —
Dwarkadas Shrinivas v. Sholapur Spg. and Wvg.
Co. Ltd.46, Charanjit Lal Chowdhury v. Union of
India47 and Jilubhai Nanbhai Khachar v. State of
Gujarat48.
(ii) The legislations which provide for compulsory
acquisition of private property by the State fall in
the category of expropriatory legislation and such
legislation must be construed strictly — DLF
Qutab Enclave Complex Educational Charitable
Trust v. State of Haryana49; State of Maharashtra
v. B.E. Billimoria50 and Dev Sharan v. State of
U.P.242
(iii) Though, in exercise of the power of eminent
domain, the Government can acquire the private
property for public purpose, it must be
remembered that compulsory taking of one’s
property is a serious matter. If the property
belongs to economically disadvantaged segment of
11
the society or people suffering from other
handicaps, then the court is not only entitled but is
duty-bound to scrutinise the action/decision of the
State with greater vigilance, care and
circumspection keeping in view the fact that the
landowner is likely to become landless and
deprived of the only source of his livelihood and/or
shelter.
(iv) The property of a citizen cannot be acquired by
the State and/or its agencies/instrumentalities
without complying with the mandate of Sections 4,
5-A and 6 of the Act. A public purpose, however,
laudable it may be does not entitle the State to
invoke the urgency provisions because the same
have the effect of depriving the owner of his right
to property without being heard. Only in a case of
real urgency, the State can invoke the urgency
provisions and dispense with the requirement of
hearing the landowner or other interested persons.
(
v
)
Section 17(1) read with Section 17(4) confers
extraordinary power upon the State to acquire
private property without complying with the
mandate of Section 5-A. These provisions can be
invoked only when the purpose of acquisition
cannot brook the delay of even a few weeks or
months. Therefore, before excluding the
application of Section 5-A, the authority concerned
must be fully satisfied that time of few weeks or
months likely to be taken in conducting inquiry
under Section 5-A will, in all probability, frustrate
the public purpose for which land is proposed to be
acquired.
(vi) The satisfaction of the Government on the
issue of urgency is subjective but is a condition
precedent to the exercise of power under Section
17(1) and the same can be challenged on the
ground that the purpose for which the private
property is sought to be acquired is not a public
purpose at all or that the exercise of power is
vitiated due to mala fides or that the authorities
concerned did not apply their mind to the relevant
factors and the records.
12
vii) The exercise of power by the Government
under Section 17(1) does not necessarily result in
exclusion of Section 5-A of the Act in terms of
which any person interested in land can file
objection and is entitled to be heard in support of
his objection. The use of word “may” in sub-
section (4) of Section 17 makes it clear that it
merely enables the Government to direct that the
provisions of Section 5-A would not apply to the
cases covered under sub-section (1) or (2) of
Section 17. In other words, invoking of Section
17(4) is not a necessary concomitant of the
exercise of power under Section 17(1).
(
viii
)
The acquisition of land for residential,
commercial, industrial or institutional purposes
can be treated as an acquisition for public
purposes within the meaning of Section 4 but that,
by itself, does not justify the exercise of power by
the Government under Sections 17(1) and/or 17(4).
The court can take judicial notice of the fact that
planning, execution and implementation of the
schemes relating to development of residential,
commercial, industrial or institutional areas
usually take few years. Therefore, the private
property cannot be acquired for such purpose by
invoking the urgency provision contained in
Section 17(1). In any case, exclusion of the rule of
audi alteram partem embodied in Sections 5-A(1)
and (2) is not at all warranted in such matters.”
9). In view of the above it is well settled that acquisition of the
land for public purpose by itself shall not justify the exercise of
power of eliminating enquiry under Section 5-A in terms of
Section 17 (1) and Section 17 (4) of the Act. The Court should
take judicial notice of the fact that certain public purpose such as
development of residential, commercial, industrial or institutional
areas by their intrinsic nature and character contemplates planning,
13
execution and implementation of the schemes which generally
takes time of few years. Therefore, the land acquisition for said
public purpose does not justify the invoking of urgency provisions
under the Act. In Radhy Shyam (Supra), this Court, whilst
considering the conduct or attitude of the State Government vis-`-
vis urgency for acquisition of the land for the public purpose of
planned industrial development in District Gautam Budh Nagar,
has observed:
“In this case, the Development Authority sent the
proposal sometime in 2006. The authorities up to
the level of the Commissioner completed the
exercise of survey and preparation of documents
by the end of December 2006 but it took one year
and almost three months for the State Government
to issue notification under Section 4 read with
Sections 17(1) and 17(4). If this much time was
consumed between the receipt of proposal for the
acquisition of land and issue of notification, it is
not possible to accept the argument that four to
five weeks within which the objections could be
filed under sub-section (1) of Section 5-A and the
time spent by the Collector in making enquiry
under sub-section (2) of Section 5-A would have
defeated the object of the acquisition.”
10). Moreover, in Dev Sharan Case (Supra) the acquisition of
land for construction of new District Jail, since the old Jail
was overcrowded and causing hardships including health
and hygiene concerns to the inmates, by invoking urgency
14
provision under Section 17 was quashed on the ground that
the government machinery had functioned at very slow pace
in processing the acquisition which clearly evinces that there
was no urgency to exclude the application of Section 5-A of
the Act. The Court further observed:
“35. From the various facts disclosed in the said
affidavit it appears that the matter was initiated by
the Government’s Letter dated 4-6-2008 for
issuance of Section 4(1) and Section 17
notifications. A meeting for selection of a suitable
site for construction was held on 27-6-2008, and
the proposal for such acquisition and construction
was sent to the Director, Land Acquisition on 2-7-
2008. This was in turn forwarded to the State
Government by the Director on 22-7-2008. After
due consideration of the forwarded proposal and
documents, the State Government issued Section 4
notification, along with Section 17 notification on
21-8-2008. These notifications were published in
local newspapers on 24-9-2008.
36. Thereafter, over a period of 9 months, the State
Government deposited 10% of compensation
payable to the landowners, along with 10% of
acquisition expenses and 70% of cost of
acquisition was deposited, and the proposal for
issuance of Section 6 declaration was sent to the
Director, Land Acquisition on 19-6-2009. The
Director in turn forwarded all these to the State
Government on 17-7-2009, and the State
Government finally issued the Section 6
declaration on 10-8-2009. This declaration was
published in the local dailies on 17-8-2009.
37. Thus the time which elapsed between
publication of Section 4(1) and Section 17
notifications, and Section 6 declaration in the local
newspapers is 11 months and 23 days i.e. almost
15
one year. This slow pace at which the government
machinery had functioned in processing the
acquisition, clearly evinces that there was no
urgency for acquiring the land so as to warrant
invoking Section 17(4) of the Act.
38. In Para 15 of the writ petition, it has been
clearly stated that there was a time gap of more
than 11 months between Section 4 and Section 6
notifications, which demonstrates that there was no
urgency in the State action which could deny the
petitioners their right under Section 5-A. In the
counter which was filed in this case by the State
before the High Court, it was not disputed that the
time gap between Section 4 notification read with
Section 17, and Section 6 notification was about 11
months.
39. The construction of jail is certainly in public
interest and for such construction land may be
acquired. But such acquisition can be made only
by strictly following the mandate of the said Act. In
the facts of this case, such acquisition cannot be
made by invoking emergency provisions of Section
17. If so advised, the Government can initiate
acquisition proceeding by following the provision
of Section 5-A of the Act and in accordance with
law.”
11). In the facts and circumstances of the present case, it is clear
that the District of Jyotiba Phule Nagar was created in the year
1997 which was, however, dissolved and recreated in 2004. The
District Magistrate, Jyotiba Phule Nagar, had sent a proposal to the
Principal Secretary, Home/Prisons, Government of U.P. for
acquisition of land for the construction of District Jail on
24.01.2003 which is undoubtedly a public purpose. After the lapse
16
of 5 years in the year 2008, the State Government asked District
Magistrate to trace availability of lands for acquisition for
construction of the District Jail in the proximity to District
Headquarters and further requested the Selection Committee to
recommend the land suitable for the said purpose. Thereafter, the
Selection Committee recommended the acquisition of the said land
as suitable for the construction of the Jail but it took two years for
the State Government to issue the said Notifications under Section
4 and Section 6 respectively, thereby invoking the urgency
provisions under Section 17 of the Act. The series of events shows
lethargy and lackadaisical attitude of the State Government. In the
light of the above circumstances, the respondents are not justified
in invoking the urgency provisions under Section 17 of the Act,
thereby depriving the appellants of their valuable right to raise
objections and opportunity of hearing before the authorities in
order to persuade them that their property may not be acquired.
12). The decision of this Court in Chameli Singh (Supra), upon
which Shri. K.K. Venugopal, learned senior counsel for the
respondents has placed reliance, has already been considered and
distinguished by this Court in Radhy Shyam Case (Supra) in the
following terms:
17
“74. In State of U.P. v. Pista Devi, Rajasthan
Housing Board v. Shri Kishan and Chameli Singh
v. State of U.P. the invoking of urgency provision
contained in Section 17(1) and exclusion of Section
5-A was approved by the Court keeping in view the
acute problem of housing, which was perceived as
a national problem and for the solution of which
national housing policy was framed and the
imperative of providing cheaper shelter to Dalits,
tribals and other disadvantaged sections of the
society.”
13). Learned senior counsel for the respondents also relied on the
decision of this Court in Deepak Pahwa Case (Supra). In that case,
the land was acquired by invoking urgency provisions under
Section 17 for the purpose of construction of a New Transmitting
Station for the Delhi Airport after the correspondence of nearly
eight years among the various Departments of the Government
before the Notification and the declaration was published in the
Gazette. This Court has held that mere pre-notification delay
would not render the invocation of the urgency provisions void as
very often, the delay increases the urgency of the necessity for
acquisition. We are afraid that the decision will not come to the
rescue of the respondents because this Court has observed that
delay only accelerates or increases the urgency of need of
acquisition, which contemplates that delay does not create a ground
or cause for urgency but increases the already existing urgency for
18
acquisition of land for any public purpose. Therefore, the delay, by
itself, does not create urgency for acquisition but accelerates
urgency only in case it already exists in the nature of the public
purpose.
14). For the reasons aforesaid, we hold that the State Government
was not justified, in the facts of this case, to invoke the emergency
provision of Section 17(4) of the Act. Therefore, the appellants
cannot be denied of their valuable right under Section 5-A of the
Act.
15). In the result, the appeal is allowed. The impugned Judgment
and Order of the High Court dated 08.10.2010 is set aside. No
order as to costs.
…………………………J.
[ G.S. SINGHVI ]
………………………
…J.
[ H. L. DATTU ]
New Delhi,
August 03, 2011.
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