JUDGMENT
A.K. Sikri, J.
1. The issue involved in both the writ petitions is common. Challenge in these two writ petitions is to the same Notification dated 5th April, 1999 issued under Section 4 read with Section 17(1) and 17(4) of the Land Acquisition Act 1894 (hereinafter referred to as ‘the Act’)- The grounds for challenge are also the same. It is for this reason that both the writ petitions were heard together and are disposed of by this common judgment. For the sake of convenience, facts from W.P. (C) No. 4933/1999 are taken note of.
2. It is the case of the petitioners that they purchased plots of land in Rajouri Garden Colony from DLF Housing Construction somewhere between 1955-58. DLF had purchased this land in village Basai Darapur, Delhi and Rajouri Garden Colony was carved out by the said company. Layout plan of the colony was sanctioned and approved by the then Delhi Development Provisional Authority in the year 1954-55.
3. In the year 1957, the Delhi Development Act came to be enacted. Under this Act, the Delhi Development Authority was constituted with the object to secure and make development of Delhi in accordance with the Master Plan of Delhi. The First Master Plan of Delhi-1961 was enforced with effect from 1st September, 1962. Land use of the property in question was declared as commercial-cum-residential by the Town Planner, Municipal Corporation of Delhi some time in March, 1985. It is for this reason that in this area the occupants of the various plots are not only residing on the houses constructed thereon, but are even carrying on their business activity. The trading in marbles is most common.
4. Some time in the year 1984-85, a decision was taken by the then Delhi Administration to construct a flyover at Raja Garden intersection and the work of construction of flyover was entrusted to Delhi Tourism and Transportation Development Corporation, respondent No. 5 (hereinafter referred to as ‘the DTTDC’)- It is stated in the petition that the scheme envisaged construction of flyover along the ring road and construction of service road on either side of ring road. A survey was conducted by the respondents and portions which are required for service road and footpath were marked. A list of 48 affected persons was prepared by the respondents and this list indicates the size and the area of portions of the shops and other establishment which are required for construction of service road and footpath. According to this list, prepared in December, 1993, only 4356.12 sq. metres of the land belonging to the petitioners and other land owners was needed. The respondent No. 4, i.e. Secretary, Land and Building Department, Government of National Capital Territory of Delhi sent a copy of the said Joint Survey list for acquisition of land belonging to the petitioners, to the ADM (LA) on 12th January, 1994. It was also decided at that time to rehabilitate the marble dealers and others through the Delhi Development Authority by providing commercial and industrial plots. It was proposed at that time to acquire, on the basis of this survey, 5 bighas 14 biswas land of village Basai Darapur. It was required for construction of flyover at Raja Garden intersection for providing service road and footpath and draft Notification was prepared for this purpose. However, nothing happened for almost three years and in August, 1997, the Public Words Department (PWD) again thought it fit and proper to confirm from the sanctioned layout plans of the DLF about the actual width of the ring road. Necessary exercise was undertaken in this behalf and it was found that the land required would be 3700 sq. metres by the respondent No. 5. This decision taken in joint meeting of all officers concerned on 18th August, 1997 was also circulated which led to fresh survey and this survey yielded that the actual requirement of respondents for construction of service road comes to 3685.12 sq. metres.
5. The petitioners state that contrary to the requirement in February/ March 1998, the respondents 3 and 4 prepared some note for acquisition of much larger area. It is the case of the petitioners that the Lt. Governor without applying his own mind and without examining the actual need and requirement, signed the said note for acquisition of land and this led to the issuance of Notification under Sections 4, 6 and 17 of the Act invoking urgency powers and dispensing with the requirement of inviting objections under Section 5A of the Act. Even when this note was signed on 4th March, 1998, nothing happened for almost one year and Notification under Section 4 read with Section 17 was issued only on 5th April, 1999. The petitioners submit that there was no publicity of this Notification in the locality as required under the Act. Thereafter, Declaration under Section 6 and also Order under Section 17(1) of the Act for taking possession of the land after expiry of 15 days from the date of service and notice under Section 9(1) of the Act was issued on 26th April, 1999. Sections 9 and 10 notices came to be issued on 14th May, 1999. Most of these petitioners filed their objections thereto on 4th June, 1999. In July, 1999, when the respondents tried to demolish the buildings of the petitioners, number of writ petitions were filed for allotment of alternative plots. In August/1999 these writ petitions were filed challenging legality and validity of the two Notifications dated 5th April and 26th April, 1999.
6. It is stated in the Petition that the petitioners had no objection for acquisition of that portion of the land which was actually required by the respondent/DTTDC for construction of flyover as per the survey list dated 1st September, 1997 prepared by the officers of the respondents indicating the actual area required from the plot of each petitioner and others. Their primary objection is to the acquisition of larger area than required as per the survey. This statement was also made by learned Counsel for the petitioners on 8th February, 2000 and possession of land to that extent has already been taken by the respondents, We are, therefore, concerned with remaining portion of the land.
7. It may be noted at this stage itself that on 19th December, 2001, learned Counsel for the respondents stated that this land was required for construction of a slip road and following order was passed on that date:
“It is submitted by Counsel for the respondent that for turning from Najafgarh Road to Ring Road while coming from Moti Nagar and going to Dhaula Kuan, the respondents, as per planning, have to construct a slip road, it is further submitted that for construction of a slip road, certain shops which are at the crossing may have to be demolished and a notification for acquisition of the land on which these shops are constructed has already been issued by the respondents. Let an affidavit be filed by the respondents indicating as to how many shops are required to be demolished for construction of a slip road and whether any scheme has been formulated for relocation of these shop-keepers to any other area. Let the affidavit be filed within one week. The petitioner will be at liberty to file reply to the affidavit within one week thereafter.”
Affidavit to the aforesaid effect is filed by the respondents to which reply is also filed by the petitioners and we shall advert to this aspect later at the appropriate stage. However, the aforesaid order indicates that according to the respondents, the remaining land is needed for the construction of a slip road.
8. From the averments made in the writ petition, brief note whereof is taken above, we also get the feel of the nature of challenge to the Notifications. Mr. P.N. Lekhi, learned Senior Counsel appearing for the petitioners paraphrased the challenge in the following manner:
(a) Area acquired by these Notifications was much more than required. His submission was that the scheme under the Act envisages that when land is required for a specific purpose (construction of Raja Garden flyover in the instant case) before acquisition of the land it has to be preceded by proper survey and study to determine as to how much land is required for the said specific purpose. In the instant case, on the basis of survey conducted in the year 1993, the requirement was found to be of 4356.12 sq. metres of land. In the second survey, carried out in September, 1997, this requirement was redetermind as 3685.12 sq. metres. Mr. Lekhi referred to the detailed report filed by the petitioners in this behalf as Annexure P/10 with the caption required for construction of flyover at Raja Garden Marble Market side considering 13.00 M distance from the outer face of wall/boundary of the plots. This list gives details of the land required with particulars of the persons in whose possession different parcels of land are and how much area would be taken from each while acquiring the land. His submission was that when this elaborate and exhaustive exercise was done, how there could be proposal sent for acquisition of more land than required for the project. Such acquisition, according to him, amounted to colourable exercise of power and was not permissible as the property of the petitioners, in respect of which the petitioners enjoyed a constitutional right guaranteed under Article 300A, could not be taken away in this manner. He cited following judgments in support:
(i) Srinivasa Cooperative House Building Society Ltd. v. Madan Gurumurth Sastry and Ors., (1994) 4 SCC 675.
(ii) Collector (District Magistrate) Allahabad and Anr. v. Raja Ram Jaiswal, (1985) 3 SCC 1.
(iii) Raja Anand Brahma Shah v. The State of Uttar Pradesh and Ors, AIR 1967 SC 1081.
(b) His second submission was that the Lt. Governor had not given assent to any order under Section 17(4) of the Act thereby dispensing with the requirement of Section 5A of the Act. In fact, he submitted, the perusal of the noting would show that the matter referred to him was for passing Notification under Section 17(1) of the Act which was approved by the Lt. Governor. Therefore, the impugned Notification under Section 17(4) of the Act thereby doing away with the requirement of filing objections by the land owners was not valid. In any case, submitted the learned Senior Counsel, there was no urgency involved. His submission was that the requirement of land for service road could not be treated as the requirement of emergent nature necessitating invoking provisions of Section 17(4) of the Act and taking away the valuable rights of the land owners to file objections under Section 5A of the Act. He further submitted that the acts of the respondents were sufficient to prove that there was no such urgency involved inasmuch as the project was envisaged way back in 1984-85 and it took years to complete the survey. Even when first survey was conducted in the year 1993, no action was taken thereon for number of years and second survey was conducted in August, 1997. On the basis of this survey, which was circulated on 1st September, 1997, note for acquisition was prepared six months thereafter i.e. in February/March, 1998. He further highlighted the fact that even when this note was approved by the Lt. Governor on 4th March, 1998, the impugned Notification came to be passed more than a year, i.e. on 5th April and 26th April, 1999. These events speak for themselves and were clinching proof of the fact that there was no urgency. Still by invoking provisions of Section 17(4) of the Act the only 15 days’ time is given under the law, was taken away and they were deprived of their valuable right. Therefore, the impugned Notification invoking Section 17(4) was clearly vitiated in view of the law laid down by the Supreme Court which could be traced out in the following judgments:
(i) Deepak Bhardwaj and Ors. v. Union of India and Ors.,92 (2001) DLT 891.
(ii) Mukesh Hans, etc. v. Union of India and Ors., 2002 I AD (Delhi) 422
(iii Ram Rakhi v. Union of India and Ors., 99 (2002) DLT 51 (FB)
(iv) Praveen fain and Ors. v. Union of India and Ors., 99 (2002) DLT 646.
(c) His further submission was that as per the note put up before the Lt. Governor which was approved, area required was by DTTDC for the purpose of construction of ‘service road’ and the land was sought to be acquired for this purpose. However, in the affidavit filed now, the respondents were changing the purpose for which the land is sought to be used. Not only the respondents want now land for “slip road” but it is required by the PWD and not DTTDC. His submission was that the purpose which was declared under Section 6 of the Act cannot be changed till the land is vested in the Government as is clear from Sub-section (2) of Section 6 of the Act. In support, he referred to the judgment of this Court in the case of Union of India and Ors. v. Nand Kishore, reported in 22 (1982) DLT 251 and particularly para 9 thereof.
9. Learned Counsel for the respondents dubbed the aforesaid arguments of the petitioners as misconceived by submitting that the area was, in fact, required for the purpose of slip road and ascertaining this requirement was the function of the respondents and the petitioner could not have any say therein. Learned Counsel in this behalf heavily relied upon the affidavit filed pursuant to order dated 19th December, 2001 and submitted that land was required for widening of ring road/service road and for construction of flyover at Raja Garden (for the purpose of construction of flyover land has already been taken possession of as mentioned above) and, therefore, we would be confining our discussion to the requirement of widening of ring road/service road. It was submitted that the balance of 20 feet of additional land is now required for construction of service road/footpath and to make the ROW 210 feet. It was also submitted that as per the approved master plan of ring road a ROW of 210 feet is prescribed and thus 20 feet of additional land is required for construction of service road/footpath. This stretch of land is required to provide service road to cater to the needs of traffic of adjoining colonies like Shardapuri and Raja Garden. It was further submitted that this construction is very important for integrated development of the stretch of land between Raja Garden and Mayapuri Chowk. In future service road so provided can also be used for slow moving traffic i.e. cycle, etc. This further enhances the utility of the service road, which is very much required at this location visualizing the heavy flow of traffic thereon. There is a missing link of service road at this location which will be complete after having the additional width of 20 feet.
10. For easing the traffic congestion, it was necessary to construct the road and there could not have been more urgency. He also refuted the contentions of the petitioners’ Counsel by submitting that along with the note placed before the Lt. Governor draft Notification was also sent which clearly mentioned provisions of Section 17(4) of the Act as well. Therefore, mere omission of this provision in the noting would not be of any avail as the Lt. Governor while applying his mind looked into the draft Notification as well and, therefore, the application was writ large which related to the provisions of Section 17(4) of the Act. He also submitted that any delay in such matter was causing public inconvenience because of traffic congestion at the said place. He further submitted that it was not necessary that before acquisition of the land there has to be a survey conducted and the quantum of land is to be acquired directly in conformity with the said survey.
11. We have given our utmost consideration to the respective submissions. We feel that these writ petitions warrant to be allowed on the sole ground that there is no proper approval of the Lt. Governor under Section 17(4) of the Act and, therefore, Notification invoking provision of Section 17(4) is not having proper legal sanctity behind it.
12. From the noting in the file, it is clear that the proposal which was submitted by the Deputy Secretary (LA) on 20th February, 1998 requested the Lt. Governor to accord approval for issue of Notification under Sections 4, 6 and 17(1) of the Act and there is no mention of Section 17(4) therein which is conspicuously missing. This noting dated 20th February, 1998 reads as under:
“Refer PP-
Delhi Tourism & Transportation Development Corporation Ltd. has requested for acquisition of land for the construction of flyover at the intersection of Ring Road-Najafgarh road at Raja Garden. The proposal for acquisition of land in the revenue estate of village Basai Darapur, for construction of flyover and right of way of intersection for the alignment of Raja Garden road was sent to SDM/LAC (Rajouri Garden). SDM/LAC (Rajouri Garden) has forwarded the draft notification for the acquisition of land for the above purpose, total area measuring 7-15 Bighas of village Basai Darapur along with copy of field book, aks sizra and survey report vide his letter dated 18.2.98. Joint Survey report at page 421/c may kindly be seen which indicates that some of the area is built up and there are few vacant plots and park is included in the proposed acquisition. However, the SDM/ LAC concerned has not intimated the amount of 80% estimated compensation.
In view of the above, if approved, we may request the Hon’ble Lt. Governor, Delhi accord approval for issue of notification under Sections 4, 6 and 17(1) of the Land Acquisition Act, 1894. Draft notification is placed opposite.
Submitted please.
Sd/-
(J.K. Rawal)
Dy. Secretary (LA)”
13. On this noting forwarded to the Joint Secretary (L & B), he made the following remarks:
“As regards ‘X’, DC (West) in today’s meeting stated that he would inform the estimated compensation immediately.
Meanwhile we may request LG to approve the draft notifications placed at 427/c to 429/c, and sign the note at 430/c.”
14. The note appearing at page 430/c, which was signed by the Lt. Governor is as under:
“I have gone through the records and requirement of the Delhi Tourism and Transportation Development Corporation Ltd. and the draft notification prepared by LAC.
I am fully satisfied that the land in question is urgently required for a valid purpose, namely for the construction of Raja Garden flyover and right way of intersection at village Basai Darapur. I order that in view of the urgency of the scheme, notification under Sections 4, 6 & 17(1) of the Land Acquisition Act, 1894, be issued immediately.
Sd/
(Tejendra Khanna)
Lt. Governor, Delhi
Date: 4.3.98″
15. Thus it is not in dispute that in the noting there is no mention of Section 17(4) of the Act. Even the note of the Lt. Governor states that he has satisfied himself about the urgent requirement of the land for a valid purpose. However, order that is made is that Notification under Sections 4, 6 and 17(1) of the Act be issued and there is no mention of Section 17(4) of the Act. Learned Counsel for the respondents submitted that it could clearly be inferred from the noting and circumstances that it was also in contemplation of the Lt. Governor that the Notification under Section 17(4) of the Act is also to be issued and the three circumstances which clearly spell out to draw this inference would be following:
(I) In the note dated 20th February, 1998, there is discussion about 80 per cent compensation. Such contigency would arise only when Notification under Section 17(4) is also to be issued and the requirement of filing objections under Section 5A is to be dispensed with.
(II) The draft Notification was also placed before the Lt. Governor at the time when he signed the note dated 4th March, 1998 and this draft Notification in no certain terms indicated that provisions of Section 5A shall not apply.
(III) There has always been a practice to invoke provisions of Section 17(4) in the aforesaid manner and many such Notifications have been upheld by the Supreme Court with same kind of noting.
16. To appreciate rival contentions, we may take stock at this stage of provision of Section 17 which is in the following terms:
“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]. 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 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 Subsection (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 notice to the occupier thereof at least forty-eight hours’ notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3) In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested, compensation for the standing crops and trees (if any) on such land and for any other damages sustained by them caused by such sudden dispossession and not excepted in Section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
(3A) Before taking possession of any land under Sub-section (1) or Subsection (2), the Collector shall, without prejudice to the provisions of Subsection (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, Subsection (2) (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.
(3-B) The amount paid or deposited under Sub-section (3A), shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section 11, the excess may, unless refunded within three months from the date of the Collector’s award, be recovered as an arrear of land revenue.]
(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1), or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does 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).”
17. As is clear from the heading of Section 17, it deals with special powers incases of urgency. Sub-section (1) provides that in cases of urgency, possession of land can be taken on the expiration of 15 days from the publication of notice as mentioned in Section 9(1) of the Act. Before taking such a possession, 80 per cent of the estimated compensation is to be tendered to the land owners. In case of urgent requirement of land, provisions of Section 17 can be invoked. However, distinction is made between Notification under Section 17(1) and Section 17(4) of the Act. Under Section 17(1) of the Act, appropriate Government has to satisfy itself about the urgent requirement and on such a satisfaction the possession of land can be taken even when the Award is not made on the expiration of 15 days from publication of notice under Section 9(1) of the Act. Therefore, when only provisions of Section 17(1) are invoked, normal procedure is to be followed which includes giving opportunity to the land owners to submit their objections, consideration of those objections and issuance of notice under Sections 9(1) and 10 of the Act inviting claims. However, thereafter without waiting for the Award to be passed by the Land Acquisition Collector (LAC) which may take substantial time, the LAC is given the power to take possession of the land on the expiration of 15 days from the date of notice under Section 9(1) of the Act. On the other hand, if the Government wants to deprive the land owners of their right to file objections under Section 5A of the Act, this satisfaction is to be recorded by the appropriate Government and that is provided under Section 17(4) of the Act. This is a different requirement altogether and, therefore, merely by issuing Notification under Section 17(1) of the Act, one cannot say that the provisions of Section 5A are also dispensed with. This aspect came up for consideration as early as in the year 1964 when the Supreme Court explained the scheme of the Act in a succinct and unambiguous manner in the case of Nandeshwar Prasad and Ors. v. U.P. Government and Ors., reported in AIR 1964 SC 1217. The normal procedure and general purport of Section 17 terming it as an exception to the usual procedure is described as under:
“It will be clear from this scheme that compliance with the provisions of Section 5A is necessary before a notification can be issued under Section 6. As soon as the preliminary notification is issued under Section 4, the officer authorised by Government may enter upon the land to survey it and to do all other necessary acts to ascertain whether the land is adapted for the purpose for which it is to be acquired, and this action, if taken, will give sufficient notice to those interested to object. If objections are made the Collector will consider those objections and make his recommendation thereon in his report to Government. If no objections are made the Collector will report that no objection has been made and the Government then proceeds to issue a notification under Section 6. In either case however, the Collector has got to make a report with his recommendations on the objections if they are filed or inform the Government that there are no objections filed in pursuance of the notification under Section 4 and it is thereafter that the Government is empowered under Section 6 to issue a notification. This, as we have said, is the usual procedure to be followed before the notification under Section 6 is issued. To this usual procedure there is however an exception under Section 17, and that is why in Section 6 we find the words “if any” in the clause “after considering the report, if any made under Section 5(A). When action is taken under Section 17(4), it is not necessary to follow the procedure in Section 5(A) and a notification under Section 6 can be issued without a report from the Collector under Section 5(A).”
18. Thereafter, the Court took note of Sections 17(1) and 17(4) and the difference in two provisions was brought out in the following words:
“It will be seen that Section 17(1) gives power to the Government to direct the Collector, though no award has been made under Section 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under Section 17(1), taking possession and vesting which are provided in Section 16 after the award under Section 11 are accelerated and can take place fifteen days after the publication of the notice under Section 9. Then comes Section 17(4) which provides that in the case of any land to which the provisions of Subsection (1) are applicable, the 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 publication of the notification under Section 4(1). It will be seen that it is not necessary even where the Government makes a direction under Section 17(1) that it should also make a direction under Section 17(4). If the Government makes a direction only under Section 17(1) the procedure under Section 5-A would still have to be followed before a notification under Section 6 is issued, though after that procedure has been followed and a notification under Section 6 is issued the Collector gets the power to take possession of the land after the notice under Section 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all the encumbrances. It is only when the Government also makes a declaration under Section 17(1), an order under Section 17(4) that it becomes unnecessary to take action under Section 5-A and make a report there under. It may be that generally where an order is made under Section 17(1), an order under Section 17(4) is also passed; but in law it is not necessary that this should be so.
XXX XXX XXX
We have already pointed out that it is not necessary in law that when an order is passed under Section 17(1) an order under Section 17(4) must also be passed. Similarly if an order is passed under Sub-section (1-A) it does not necessarily follow that an order must be passed under Section 17(4). Sections 17(1) and 17(4) are independent of each other in the sense that an order under the former one does not necessarily require an order under the latter, similarly Section 17(1-A) must be independent of Section 17(4) and an order under Section 17(1-A) would not necessarily mean that an order under Section 17(4) must be passed. In these circumstances it seems to us that if the Legislature intended that provisions of Sub-section (4) should also apply to a case falling under Sub-section (1-A), it has failed to carry out that intention. Sub-section (1-A) has been added as an independent sub-section and no amendment has been made either in Sub-section (1) or Sub-section (4); nor has any separate provision been made for applying Sub-section (4) to a case falling under Sub-section (1A) and so Sub-section (4) cannot be applied to Sub-section (1-A). The right to file objections under Sub-section 5-A is a substantial right when a person’s property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side-wind because Subsection (1-A) mentions Sub-section (1).”
19. It is, thus, clear that application of mind has to be of different considerations while issuing Notification under Section 17(1) and issuing Notification under Section 17(4) of the Act. Therefore, it is clear that when the Lt. Governor passed order dated 4th March, 1998 specifically ordering issuance of Notifications under Sections 4, 6 & 17(1) of the Act with no reference to Section 17(4), it cannot be said that he applied his mind and passed the order also for Section 17(4). Such an order cannot be inferred by implication as was sought to be suggested by learned Counsel for the respondents. We may point out at this stage that there have various decisions on this point and observations made in some of the cases gave rise to the speculations about the correctness of the aforesaid view and, in any case, giving rise to the argument by the Government that the aforesaid case should be treated as dealing with arable land (it was the unamended provision) or Section 17(1-A) of the Act (it was an amendment by the State of U.P.). However, all these cases were taken note of and discussed by the Supreme Court in the case of Om Prakash and Anr. v. State of U.P. and Ors., reported in (1998) 6 SCC 1 and about the judgment in Nandeshwar Prasad (supra) the Court made the following observations:
“Para 22: We may now refer to the decision of a three-Judge Bench of this Court in the case of Nandeshwar Prasad v. U.P. Govt., AIR 1964 SC 1217 to which our attention was invited by learned Counsel, Mr. Dutta appearing for the appellants, in some of the appeals. Therein, Wanchoo, J. speaking o for the Court observed to the effect that just as Sections 17(1) and 17(4) are independent of each other, Section 17(1-A) and Section 17(4) are independent of each other and an order under Section 17(1-A) would not necessarily mean that an orer under Section 17(4) must be passed. There cannot be any dispute on this legal position. However, the question with which we are concerned is entirely different. It is to the effect whether on the facts of these cases, there was any relevant material before the State authorities to invoke power under Section 17, Sub-section (4).”
20. The Court in that case did not find any relevant material before the said authorities to invoke powers under Section 17(4) of the Act and came to the following conclusion:
“Para 25 : In the light of the aforesaid discussion, therefore, the conclusion becomes inevitable that the action of dispensing with inquiry under Section 5-A of the Act in the present cases was not based on any real and genuine subjective satisfaction depending upon any relevant date 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 5-A inquiry by resorting to Section 17, Sub-section (4) thereof. The first point is, therefore, answered in the negative, in favor of the appellants and against the contesting respondents.”
21. Insofar as reliance on some of the cases by the respondents herein to project the theory of inference to be drawn or that urgency clause could be invoked by the very nature of purpose is concerned, it may be best to refer to paras 23 and 24 of this judgment which have given suitable answer and interpretation to those judgments which are sought to be relied by the respondents:
“Para 23: It is now time for us to refer to certain latter decisions of this Court to which strong reliance was placed by Mr. Mohta, learned Senior Counsel for NOIDA. In the case of A. P. Sareen v. State of U.P., (1997) 9 SCC 359 a two-Judge Bench of this Court consisting of Ramaswamy, J. and G.T. Nanavati, J., had to consider the question whether the need for urgent possession underlying acquisition proceedings could cease to exist only because of bureaucratic inadvertence. It was held on the facts of that case that urgency continued so long as the scheme was not initiated, action taken and process completed. It is, of course, true that while deciding this question, it is observed that it is a well-settled legal position that urgency can be said to exist when land proposed to be acquired is needed for planned development of the city or town, etc. The said observation clearly shows that in appropriate cases when acquisition is needed for planned development of any city or town, the urgency provisions can be invoked. This aspect is legislatively recognised by enactment of Section 17(1-A) by the U.P. Legislature. But the said observations cannot be read to mean that in every case of planned development of city or town, necessarily and almost automatically the urgency clause has to be invoked and inquiry under Section 5-A is to be dispensed with. It will all depend upon the facts and circumstances of each case. The aforesaid observations cannot be held to be laying down any absolute proposition that whenever any acquisition is to take place for planned development of city or town, Section 5-A should be treated to be almost otiose or inoperative. Such is not the ratio of the aforesaid decision and nothing to that effect can even impliedly be read in aforesaid observation which is of a general nature. It only suggests that in appropriate cases, the urgency clause can be invoked when the land is proposed to be acquired for planned development of city or town.
Para 24: Another decision to which our attention was invited by Mr. Mohta, learned Senior Counsel for NOIDA, is reported in Ghaziabad Development Authority v. Jan Kalyan Samiti, (1996) 2 SCC 365. In that case, a Bench of two learned Judges consisting of K. Ramaswamy and G.B. Pattanaik, JJ. examined an entirely different question as to whether notification under Section 6 could be issued simultaneously with the notification under Section 4(1) when Section 5-A was dispensed with under Section 17, Sub-section (4). This decision therefore, cannot be of any avail to Mr. Mohta. In the case of Jai Narain v. Union of India, (1996) 1 SCC 9 another Bench of two learned Judges consisting of Kuldip Singh and S. Sagir Ahmad, JJ. had to examine the question whether invocation of urgency provisions under Section 17(4) for acquiring land for constructing a sewage treatment plant (STP) in Okhla area of this city could be said to be well justified. Upholding the said exercise by the acquiring authority, Kuldip Singh, J. in para 3 of the Report clearly noted the peculiar fact situation under which Section 5-A inquiry was dispensed with in that case. It was noted that this Court itself had issued earlier time-bound directions for procurement of land for STP in various parts of Delhi. In the aforesaid judgment, it was also observed in an earlier decision dated 24.3. 1995, this Court had observed that sewage problems were of a grave nature and so far as discharge of effluent in the Yamuna was concerned, the industries were the prime contributors apart from MCD and NDMC which were also discharging sewage directly into River Yamuna and thereafter on 21.4.1995, this Court regarding the construction of STP had observed that the treatment of sewage was of utmost importance for health and for supply of pure water to the citizens of Delhi. Any delay in this respect was a health hazard and could not be tolerated. It was also observed therein that this Court had earlier directed to the authorities to take up the work of land acquisition and sewage on a war footing. In view of the directions of this Court, therefore, the authorities were bound to apply the urgency clause and invoke urgency powers for dispensing with Section 5-A inquiry so that the sewage treatment plant could be established at the earliest and on a war footing. We fail to appreciate as to how the aforesaid fact situation and the direction to the State to move quickly and urgently as issued by this Court which was binding on the State authorities could be legitimately pressed into service by Mr. Mohta in the facts of this case which stand on an entirely different footing, as noted earlier.”
22. At this stage, we may take note of few judgments of this Court dealing with this aspect. We may first refer to the Division Bench judgment in the case of Deepak Bhardwaj (supra). This judgment was taken note of in subsequent course i.e. in the case of Mukesh Hans (supra) wherein the Court held:
“Para 11:. These and other decisions of the Supreme Court were very carefully considered by a Division Bench of this Court in Deepak Bhardwaj and Ors. v. Union of India and Ors., 112 (2004) DLT 937 (DB) 1998 decided on 14th July, 2001. After a review of the entire case law, the Division Bench concluded as follows:
‘Section 5A provides the only opportunity under the Act to the persons whose lands are sought to be compulsorily acquired to object to the proposed acquisition of land. This is the only safeguard available under the Act for the affected parties. Doing away with this only safeguard is a very serious matter of mere routine. It is a basic principle of law that a man should not be condemned unheard. It is in consonance with this basic principle of law that Section 5A opportunity is not denied to affected parties. If the acquiring authority is to dispense with the observance of this basic principle of law i.e. which as already said is the only safeguard contained in the Act for the person whose land is sought to be compulsorily acquired, the matter cannot be allowed to be treated lightly or in a casual manner. A strong case for invocation of Section 17 and dispensing with Section 5A has to be made out.’
Para 12: There is, therefore, no manner of doubt that if the respondents want to turbocharge the process of acquisition by resorting to Section 17(4) of the Act, there has to be an application of mind with regard to dispensing with the inquiry under Section 5A of the Act. It is for this reason that a perusal of the official file becomes necessary.”
23. It may be mentioned that nothings in the file in those cases were identical as in the present case and after reproducing those nothings, the Court came to the same conclusion as we have arrived at which is clear from para 18:
“From these nothings, it is not possible to hold that the Lt. Governor independently applied his mind to the question of dispensing with an inquiry under the provisions of Section 5A of the Act. This is because if the Lt. Governor had applied his mind to this question, he would have surely adverted to it however briefly. There is nothing to suggest from the note of the Lt. Governor that he was even aware that the relevant draft notification dispensed with an inquiry under Section 5A of the Act. On the contrary, the application of mind by the Lt. Governor was limited to the issuance of a notification under Section 17(1) of the Act, which he apparently seems to believe results in the automatic issuance of a notification under Section 6 of the Act. This is not so, inasmuch as prior to the issuance of a notification under Section 6 of the Act, either an inquiry should be held under Section 5A of the Act, or it should be consciously dispensed with. Neither of these two postulates are reflected in or discernible from the note of the Lt. Governor.”
24. We may also refer to the Full Bench judgment of this Court in the case ‘ of Ram Rakhi (supra) wherein following observations are made:
“Para 36: As indicated hereinbefore, the lands in question were measured ! and a plan therefore was submitted, wherein lands sought to be acquired, were delineated with colour red. The Court issued the direction pursuant thereto. Even from the note sheet dated 22nd November, 2000, it appears that joint measurement had been done pursuant to the direction of this Court. The records have been produced before us which do not show any independent application of mind on the part of the acquiring authority. No independent satisfaction has been arrived at. Contrary to the practice, o¦ even 80% of the amount which was to be awarded was not paid to the petitioner before issuing the impugned Notification. Records, on the contrary, suggest that all actions had been taken pursuant to the order of the Court. It may be noted that the requisition of the DDA was pending but such requisition was for 1 bigha 19 biswas in Khasra No. 573. There is nothing on record to show that there had been any application of mind of the effect that only 307 sq. yds. lands are necessary to be acquired. Had there been any independent application of mind, the appropriate authority would have come to the independent application of mind, the appropriate authority would have come to a definite conclusion that the request of the DDA to acquire entire land is not correct and the public purpose would be served by acquiring 307 sq. yds. of lands only. The impugned Notification does not say so. Furthermore, requirement was of the DDA and not of the Land Acquisition Collector. Having regard to the facts and circumstances of this case, we are, therefore, of the opinion that it is not a case where the provisions of Section 17 of the Act should have been taken recourse to.
Para 49 : Having regard to the fact that there had been no independent application of mind, we are of the opinion that the impugned Notification cannot be sustained. It is set aside accordingly. However, this order shall not preclude the appropriate authority to apply its own independent mind and take appropriate steps in the matter in accordance with law.”
25. Significantly, judgment of Deepak Bhardwaj (supra) has been upheld by the Supreme Court. Judgment of this Court in the case of Mukesh Hans (supra) has also been upheld in the case of Union of India and Ors. v. Mukesh Hans, reported in (2004) 8 SCC 14. These cases are directly on the point as exactly same noting, as in the present case, was held to be not sufficient to constitute that there was any order for issuance of Notification under Section 17(4) of the Act. Reiterating the interpretation given by the Supreme Court in the case of Nandeshwar Prasad (supra), and specifically quoting from that judgment with approval as under:
“A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5A inquiry which indicates that the Legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A inquiry. If that was not the intention of the Legislature then the latter part of Sub-section (4) of Section 17 would not have been necessary and the Legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in each and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) of the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act.
xxx xxx xxx
An argument was sought to be advanced on behalf of the appellants that once the appropriate Government comes to the conclusion that there is an urgency or unforeseen emergency under Sections 17(1) and (2), the dispensation with inquiry under Section 5-A becomes automatic and the same can be done by a composite order meaning thereby that there is no need for the appropriate Government to separately apply its mind for any further emergency for dispensation with an inquiry under Section 5A. We are unable to agree with the above argument because Sub-section (4) of Section 17 itself indicates that the “Government may direct that the provisions of Section 5-A shall not apply” which makes it clear that not in every case where the appropriate Government has come to the conclusion that there is urgency and under Sub-section (1) or unforeseen emergency under Sub-section (2) of Section 17, the Government will ipso facto have to direct the dispensation of the inquiry. For this we do find support from a judgment of this Court in the case of Nandeswar Prasad v. State of U.P., AIR 1964 SC 1217.
xxx xxx xxx
At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. The object and importance of Section 5-A inquiry was noticed by this Court in the case of Munshi Singh v. Union of India, (1973) 2 SCC 337.”
26. We may state at this stage that whether there is really a requirement of the land or not, is not the issue we have dealt with nor are we supposed to do so in these proceedings as that is the satisfaction of the appropriate Government. What is emphasized is that neither the decision was taken to invoke Section 17(4) of the Act nor in the facts of the present cases it could be established that there was such a necessity that provisions of Section 5A be dispensed with which is clear from the conduct of the Government itself as on the one hand, Notification is issued under Section 17(4) depriving the land owners of their right to file objections and on the other hand, the respondents acted at snail’s pace and rather had the luxury of having long spells of sleep clearly indicating that urgency was not of such a nature that the owners should have been deprived of their right to file objections under Section 5A of the Act. Even if the land is required, proper procedure as contained in the Act has to be followed.
27. As these writ petitions warrant to be allowed on this ground alone, it is not necessary to go into other questions. The impugned Notification under Section 4 dated 5th April, 1999 and consequently Declaration under Section 6 dated 26th April, 1999 are liable to be quashed. It is ordered accordingly. However, it would always be open to the authorities to take fresh steps for acquisition of the land in accordance with, law.
28. There shall be no orders as to costs.