JUDGMENT
Mohd. Shamim, J.
(1) Petitioners through the present writ petitions have challenged the legality and the validity of the notifications No. F. 7(2)86 L&B(l)22025-39,dated 23rd day of December, 1986 issued by the Land and Building Department, Delhi Administration, Delhi under Sections 4 and 17 of the land Acquisition Act, (hereinafter referred to as the Act in order to facilitate reference) where by land measuring 73 bighas.02 biswas situated in village Rangpuri, Delhi, fully detailed in the above said notification belonging to the petitioners was acquired by the Government.
(2) All the above petitions are being disposed of through the present judgment as common questions of law and fact are likely to arise while disposing them of.
(3) Learned counsel for the petitioners Mr N S. Dalal has vehemently contended before this court that there was no application of mind before (he issue of the impugned notification Neither there is any reason nor justification for the application of the provisions of Section 17(4) of the Act in the instant case. In any case, no reason, whatsoever has been mentioned in the above said notification. It is a well established principle of law that the provisions of Section 17(4) of the Acs can be applied only in those discerning few cases whose there was an urgency of such a nature that even the summary proceedings of Section 5A of the Act should have been eliminated. According to the learned counsel all the cases of the urgency find a mention in Section 17(2) of the Act Hence, no notification under Section 17(4) of the Act can be issued unless the case falls well within the domain of Section 17(2). The rehabilitation or the displaced persons does not, according to the learned counsel, fall within the ambit of Section 17(2) of the Act. Thus the respondents could not have made use of the provisions of the said section.
(4) Learned counsel for the respondents Dr. N.S, Sidhu, Shri B.S Mathur and Miss Pinky Anand have urged to the contrary. Dr. Sidhu has strenuously argued that it is false and preposterous to argue that there was no application of the mind prior to the issue of the impugned notification. The Administrator, Union Territory of Delhi was the sole and the only judge to examine ai Co whether there was urgency or not ? He after having decided on consideration of all the relevant material that there was such an urgency, the petitioners cannot be allowed to argue that there was no justification for the exercise of such a power under Section 17(4) of the Act. It has next been urged that the petitioners have received the compensation in respect of all the lands acquired by the Government. Hence, they are now estopped from challenging the acquisition proceedings. They will be deemed to have, acquiesced in and accepted the factum of acquisition. The notification in the instant case was issued in the Delhi Extra-Ordinary Gazette on 23rd December, 1986. The writ petitions were filed either towards the close of the year 1989 or in the beginning of the year 1990. i.e., nearabout 3 years after the publication of the impugned notification. Consequently, the present writ petitions are, highly belated and liable to be dismissed on this ground alone. The petitioners have not approached this court with clean hands in as much as they have concealed the material facts. They have gone to the extent of keeping the respondent No 5 out of the array of parties, knowing fully well that they were the most affected party by the present proceedings.
(5) We have heard the learned counsel for the parties at sufficient length and have very carefully examined their rival contentions and have given our anxious thoughts thereto.
(6) Since we are concerned with the construction of Section 4, section 5A and section 17 of the Act, the provisions of the said sections of the Act can be adverted with profit before proceeding any further in the matter. Section 1 reads as under : “4(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 atleast 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 authorised by such Government in this behalf, and for his servants and workmen,- Xx Xx Xx Xx Xx Xx Xx Xx Xv ‘XX Xx Xx
(7) Section 5A of the Act is in the following words : “5-A.(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) xx xx xx xx xx (3) xx xx xx xx xx
(8) Section 17 of the Act on the other hand deals with the special powers of the Government in cases of urgency. It envisages, ` “IN case 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 public purpose. Such land shall thereupon vest absolutely in the Government free from all encumbrances. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary turn 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 riverside 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 (be previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Govern- ment free from all encumbrances : Provided that the Collector shall not……… (3-A) ……………… (3-B) ……………… (4) In the case of any land to which in the opinion of the appropriate Government, (be provisions of subsection (1) or sub- section (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does 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).”
(9) Learned counsel for the petitioners Mr. Dalal has on the basis of the relevant provisions of the law alluded to above contended that Government can acquire land situated in any locality when the same is needed for a public purpose. The persons who are interested in the above said land have been authorised by section 5A of the Act to prefer objections against any such acquisition Hence the citizens cannot be deprived of their valuable right to prefer objections against the acquisition of their land unless the case squarely falls within the purview of section 17(2) of the Act. The next limb of the argument of the learned counsel is that all the cases of urgency wherein the Government can dispense with the provisions of Section 5A of the Act have been fully shown under section 17(2) of the Act. It has then been urged that there must be application of mind on the basis of the relevant material before the authority concerned that a particular case was of such urgency or and the emergency was of such a nature that even the summary proceedings of section 5A ought to be eliminated. The learned counsel in support of the above view has relied upon the observations of their Lordships of the Supreme Court as reported in Raja Anand v. State of U.P., , “but even though the power of the State Government has been formulated under section 17(4) of the Act in subjective forms expression of opinion of the State Govern- ment can be challenged as ultra-vires in-a court of law if it could be shown that the State Government never applied its mind to the matter or that the action of the State Government is malafide.”
(10) Learned counsel for the petitioners has further contended that the impugned notification in the instant cases is bad in law and is liable to be quashed inasmuch as even the word ‘urgency’ does not find a mention therein. In any case, the rehabilitation of the persons displaced or affected on account of the expansion/development of the Palam Airport is not a case of urgent nature. Hence, there was no occasion or cause for the Government to dispense with the notification under section 5A of the Act.
(11) The learned counsel in order to substantiate the above argument has led us through Dhani Ram & Ors. v. Union of India, wherein it was observed. “That the right of a person having any interest in the property to file an objection under section 5A of the Act should not be interfered with in such a casual and cavalier manner. It has further been held that the notification must mention that there is urgency and only then the provision can be invoked. In the present case we have already indicated there is no such mention and as such following the decision of their Lordships, we have no hesitation in coming to the confusion that the notification cannot be sustained………”
(12) Learned counsel has then relied upon the observations of their Lordships of Supreme Court as reported in Dora Phaulauli, Appellant v. State of Punjab & Ors , . Their Lordships opined in para 2 of the said judgment.”…………In the portion of the notification which we have extracted above it is neither mentioned that the land is waste or arable nor has it been stated that in the opinion of the Government, there was any urgency to take recourse to the provisions of section 17 of the Act. A direction to the Collector hag been given to take action under section 17 on the ground of urgency but this is not legal and complete fulfillment of the requirement of the law. It is to be remembered that the right of a person having any interest in the property to file an objection under section 5A of the Act could not be interfered with in such a casual or cavalier manner as has been done in this case.”
(13) It is true as argued by the counsel for the petitioner Mr. N.S. Dalal that there is no mention of the word ‘urgency’ in the impugned notification, dated 23-12-1986. However, can a notification be declared to be bad in law simply on that score ? Our answer to the above query is an emphatic ‘no’. We feel that a mere omission to mention the word ‘urgency’ would not ipso facto tender a particular notification illegal or invalid if the urgency can be shown otherwise by the words used in the impugned notification. We are tempted over here to reproduce the relevant portion of the said notification to substantiate our view. It is in the following words,
“WHEREAS it appears to the Lt. Governor, Delhi that the land is required to be taken by the Government at the public expense for a public purpose namely for rehabilitation of the persons, displaced or affected due to expansion/development of the Palam Airport, it is hereby notified that the land in the locality described below is likely to be required for the above purpose………………. The Lt. Governor, being of the opinion that the provisions of Subsection (1) of Section 17 of the said Act are applicable to this land, is further pleaded under Sub-section 4 of the said section to direct that the provisions of Section 5A shall not apply.”
“IT is fully manifest from the above that the lands mentioned in the impugned notification were being acquired for a public purpose which was of an emergent nature, i.e., for rehabilitation of the persons displaced or affected due to expansion/development of the Palam Airport We feel, can there by more urgent matter than to have a roof over the heads of the teeming millions of this country. The need or urgency to rehabilitate the persons displaced or affected owing to the expansion and development of a particular project can hardly be over emphasised. There could be nothing more sacrosanct than this purpose. We arc fortified in our above view by the observations of the Bombay High Court reported as Jamnadas Devjibhai Bhata & Others Petitioners v. The Commissioner, Nagpur Division, Nagpur & Anr. 1976 Bombay P. 129. A question very much akin to the question in bands arose before the said Court. While deciding the said question it was opined by C.S.Dharmadhikari and A.R. Shimpi. Jj, “. ..these landless labourers were under constant threat of eviction by the owners of the land. Therefore. taking an over-all view of the matter, in our opinion, the scheme framed by the Government for providing house sites to the landless workers in the rural areas is obviously in the public interest and is, therefore, a “public purpose” for which the lands can be compulsorily acquired by the Government under the provisions of the Act.”
(14) The next contention of the learned counsel for the petitioners is that all the cases of urgency have been fully enumerated under Section 17(2) of the Act. Hence, a case which does not fall within the domain of Section 17(2) of the Act by no stretch of imagination be termed as a case of urgent nature so as to enable the Government to deprive the citizens of their right to file the objections under Section 5A of the Act is also, we feel, devoid of any force. We are of the view that Section 17(2) of the Act is only illustrative in nature and is not exhaustive of all the cases of urgency. We also feel it is not necessary for the Government in every case to use the expression of ‘urgency’ while issuing the notification fur the purpose of acquiring lands for a public purpose. If they are in a position to show the urgency otherwise by the evidence on record. The above view was given vent to by a full bench of this Court in S K. Gupta v Union of India & Ors. as . In the instant case it was not recited in any of the notifications under Sections 4, 6 and 17(4) of the Act that there was urgency. If there had been such a recital although it would not have been conclusive the burden of proof on that it was wrong would have lain on the petitioners. “The absence of recital leaves the burden of proof on the Government but does not bar it from establishing aliened that there was, in fact, an urgency……”
(15) It is crystal clear from the above that the use of the words ‘urgency’ in a particular notification acquiring land is not a sine qua non of the said notification inasmuch as the urgency can be proved aliened by the other evidence which may be brought on record.
(16) It has then been urged by the counsel for the petitioner that in the instant case before the issue of the impugned notification there was no application of mind by the Administrator of Union Territory of Delhi. Hence, this fact alone is sufficient enough to tender the impugned notification nugatory and bad in law. The contention of the learned counsel, we feel, is without any substance. A mere and bare allegation that particular notification was issued without the application of mind, we feel is not sufficient enough to make it so. The petitioners are under an obligation and an onerous duty has been cast on their shoulders to prove their averments by the cogent evidence on record. The petitioners, we are of the view, have not placed on record any material whatsoever, to show and prove that there was non-application of mind. The respondents on the other band have placed on record in Cwp No. 343/90 Suresh Kumar Goel v.U.0 1. an affidavit sworn by Shri U.P. Singh, Officer on Special Duty with Land and Building Department, Delhi Administration. He has specifically stated in paras 2 & 3 of the said affidavit that the Lt. Governor formed an opinion on account of the urgency in the present case that the provisions of Subsection (1) of Section 17 of the Act arc applicable and hence directed under Sub-section (4) of the said section that the provisions of Section 5A of the Act shall not apply. He further goes on to state vide para 3 of the affidavit that the resettlements of the villagers displaced by the expansion/development of Palam Airport is a matter of great urgency. It was specifically stated in the note dated 9-12-1986 put up the Under Secretary (Land Acquisition), through Secretary (Land & Building) to the Lt. Governor that- “THE shifting of the villagers of Nangai Dewat is an urgency in view of the danger posed for the aircrafts landing and talking off from the Indira Gandhi Airport and as such it is very essential to shift the villagers from the village Nangai Dewat so as to avoid any mishap at any time………….”
He further goes on to state that it was also brought to the notice of the Lt. Governor, "THE continuance of Nangai Dewet abadi right in the midst of International Airport complex has serious security implications. Delay in shifting to the new sites will unnecessarily escalate costs both for the I.A..A..I. as well as for the villagers." (17) In the circumstances, stated above, we feel it would be sheer travesty of facts to state that there was no application of mind.
(18) There is another side of the picture. It is well established principle of law that formation of an opinion or the satisfaction of an authority under Section 17(4) of the Act is subjective. Hence, it has been left entirely to the discretion and decision of the appropriate government as to whether there is an urgency or not in a particular case. The above view was given vent to by their Lordships of the Supreme Court in Mansoor Khan & Ors. v. State of U.P. & Ors. , “The provisions of Section 17(1) of the Land Acquisition Act, 1894 leaves it absolutely to the discretion of the appropriate government in cases of urgency to direct the Collector to take possession of any waste or arable land needed for public purposes even though no award has been made. There is no dispute that these lands are are able lands. So, the question whether there is urgency or not if left to the discretion and decision of the appropriate Government Under Sub-section (4) of that Section in the case of any land to which, in the opinion of the appropriate Government the provisions of Sub-section (1) or Sub section (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply.” We are also tempted over here to cite in support of our above view the observations of the Bombay High Court as reported in Narain v. The State of Maharashtra (1971) 73 Born. L.B. 872, “When the formation of an opinion or the satisfaction of an authority is subjective but is condition authority precedent to the exercise of a power the challenge to the formation of such opinion or to such satisfaction is limited in law to three points only. It can be challenged, firstly, on the ground of malafides; secondly, on the ground that the authority which formed that opinion or which arrived at such satisfaction did not apply its mind to the material on which it formed the opinion or arrived at the satisfaction; and thirdly, that the material on which it formed its opinion or reached the satisfaction was so insufficient that no man could reasonably reach that conclusion.”
(19) Their Lordships of the Supreme Court while dealing with the question of formation of opinion under Section 17(4) of the Act opined in Narain Govind Gavate & Ors. v. State of Maharashtra & Ors. and State of Maharashtra v Narain Govind Gavate & Ors. reported as 1977 Scc P 133, “Once the court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however, meagre, on which it could reasonably base its opinion, the court should not and will not interfere. There might, however, be cases in which the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonably as to leave no doubt whatsoever in the mind of a court that there has been an excess of power. There may also be cases where the mind of the authority concerned has not been applied at all,due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider.”
(20) It has then been urged by the counsel for the petitioners that the respondents have not taken any effective steps to utilize the lands acquired by them Lands are still lying unutilised. No rehabilitation work has so far been done. This shows that there is no urgency and the land were not urgently required by the respondents. The contention of the learned counsel for the petitioners is no doubt on ingenious one but can be brushed aside within an on without much difficulty. The respondent No 5 have stated in para No. 13 of their Reply affidavit that the impugned land could not be developed and the villagers of village Nangal Dewat could not be rehabilitated on account of certain administrative delays and on account of squatters who unauthorisedly occupied the said land. Furthermore, the squatters obtained injunction orders, even the petitioners obtained stay orders from this court with the result that no effective action could be taken to develop the said land. We fully agree with the respondents. Administrative delays are endemic in our system Then there if a problem of litigation. It is not easy to remove the squatters and the trespassers from the land in their occupation. They more often than not resort to litigation and obtain the stay orders from the court in their favor. In any way, we feel that the petitioners cannot take any advantage on the said score. Admittedly, it is they who obtained the stay order from this court. Thus it is they who brought about a particular situation. Hence, they cannot be allowed to take advantage of the said situation which: is their own creation.
(21) Learned counsel for respondent No. 5 Dr.K.S. Sidhu has contended that the present writ petitions are liable to be flung away simply on the ground that the petitioners have approached this court after more than 3 years after the issue of the notification. Hence, the petitions are highly belated and the petitioners are guilty of laches. We find ourselves in perfect agreement with the contention of the learned counsel. Admittedly, the impugned notification in the instant cases was issued on 23-12-1986. The writ petitions were filed towards the close of the year 1989 or in the beginning of the year 1990. Thus the present writ petitions were filed after the expiry of a period of 3 years. Consequently, the petitions are liable to be dismissed on this ground alone. A similar question arose before their Lordships of the Supreme Court as reported in in Hari Singh & Ors. v. State of U .P., . Their Lordships observed as under. At the outset we are of the view that the writ petition filed in July, 1982 questioning the notification issued in January, 1980 after a delay of nearly two and half years is liable to be dismissed on the ground of laches only.”
(22) Furthermore, the petitioners in the instant case have accepted the compensation in respect of the lands acquired by the Government. They have thereafter applied to the Land Acquisition Collector for the enhancement of the compensation. Reference petitions were filed in all the cases and forwarded to the court of Additional District Judge. Reference for the enhancement of the compensation is reported to be pending before the Additional District Judge vide affidavit filed by Mr. U.P Singh, Officer on Special Duty in the Land and building Department, Delhi Administration, Delhi. and the statement placed on record by counsel for the respondent Mr. B S. Mathur in Writ Petition No. 333/90 entitled Satinder Kumar v. U 10. Thus the subsequent conduct of the petitioners is contrary lo, and inconsistent with their own stand which they have taken in the present cases. We feel the petitioners would be deemed to have acquiesced in and agreed to the acquisition proceedings. It is now too late in the day to challenge the same before the court.
(23) The above view was expressed by their Lordships of the Supreme Court in a writ petition which was held to be barred by the principles of acquiescence and on account of laches and undue delay in the presentation of the same. It was so observed in Smt Ratni Devi & Ors. v. The Chief Commissioner & Ors , , their Lordships while dismissing the said writ petition relied upon the observations of their Lordships of the Supreme Court as reported in Aflatoon v. Governor of Delhi, . The petitioners in the said case allowed sufficient time to elapse before challenging the acquisition of their lands and allowed the Government to complete all the formalities, while adverting on this aspect of the matter their Lordships opined, “to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basil that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tacties.”
(24) It has next been argued that the petitioners are guilty of suppressing the material facts from this court. Admittedly, as is manifest from the notification itself the lands in the instant case were acquired in order to rehabilitate and resettle the persons/ villagers who were uprooted from their lands on being acquired by the Government for the expansion and development of the Palam Airport. Thus the land in question was acquired for the benefit of International Airport Authority of India. Therefore, the respondent No. 5 were the necessary/proper party for effectively adjudicating upon the disputes in the present cases, A perusal of the reply filed by the Res-pondent No. 5 reveals that they had deposited a sum of Rs. 3.00.00,000.00 ( Rupees three crores) for the development of an area of 63 acres for the resettlement and rehabilitation of displaced families from village Nangal Dewat. Hence, the respondent No. 5 were lobe affected by any decision taken by this court. Curiously enough they were not imp leaded by the petitioners as one of the parties.to the present proceedings. We think this was done with ulterior motive. The respondent No. 5 were added to the array of the parties on an application moved by them before this court. Hence, the petitioners are guilty of suppressing the material facts from this court. The petitions are thus liable to be dismissed on this ground also.
(25) In the circumstances stated above, we do not sec any force in the present writ petitions. They arc thus dismissed with costs. Counsel fee Rs. 1000.00 for each counsel.