{"id":200660,"date":"2011-08-03T00:00:00","date_gmt":"2011-08-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/devendra-singh-ors-vs-state-of-u-p-ors-on-3-august-2011"},"modified":"2015-12-04T03:20:25","modified_gmt":"2015-12-03T21:50:25","slug":"devendra-singh-ors-vs-state-of-u-p-ors-on-3-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/devendra-singh-ors-vs-state-of-u-p-ors-on-3-august-2011","title":{"rendered":"Devendra Singh & Ors vs State Of U.P. & Ors on 3 August, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Devendra Singh & Ors vs State Of U.P. & Ors on 3 August, 2011<\/div>\n
Author: …J.<\/div>\n
Bench: G.S. Singhvi, H.L. Dattu<\/div>\n
                                                                                   REPORTABLE\n\n\n\n\n                   IN THE SUPREME COURT OF INDIA\n\n                    CIVIL APPELLATE JURISDICTION\n\n\n\n                       CIVIL APPEAL NO.6293 OF 2011\n\n       (Arising out of Special Leave Petition (C) No. 15151 of 2011)\n\n\n\n\n\nDevendra Singh & Ors.                                            .............. Appellants\n\n\n\n\n                                          versus\n\n\n\n\nState of U.P. & Ors.                                                  ...........Respondents\n\n\n\n\n\n                                   J U D G M E N T\n<\/pre>\n
H.L. Dattu, J.\n<\/p>\n<\/p>\n
                Leave granted.\n<\/p>\n<\/p>\n
2).             This   appeal,   by   special   leave,   is   directed   against   the <\/p>\n
        Judgment and Order dated 08.10.2010 passed by the High Court of <\/p>\n
        Judicature at Allahabad in Civil Misc. Writ Petition No. 61903 of <\/p>\n
        2010 whereby, the writ petition filed by the appellants challenging <\/p>\n
        the   acquisition   of   their   land   for   construction   of   District   Jail   by <\/p>\n
        invoking   Sections   17(1)   and   17(4)   of   the   Land   Acquisition   Act, <\/p>\n
        1894 (hereinafter referred to as “the Act”) was dismissed. <\/p>\n
3).           The facts of the present appeal are as follows:-<\/p>\n
              The   District   Magistrate,   Jyotiba   Phule   Nagar,   had   sent   a <\/p>\n
       proposal   to   the   Principal   Secretary,   Home\/Prisons   Section   4, <\/p>\n
       Government   of   U.P.   for   acquisition   of   land   situated   at   Amroha-<\/p>\n
       Naugawan   Sadat   Road   for   the   construction   of   District   Jail  vide <\/p>\n
       letter   dated   24.01.2003.   After   the   gap   of   5   years,   the   Special <\/p>\n
       Secretary,   Prisons   Administration   and   Reforms,   Government   of <\/p>\n
       U.P.,   had   requested   the   District   Magistrate   to   find   the   available <\/p>\n
       lands for acquisition, for the said purpose, in the proximity of the <\/p>\n
       District Head Quarters vide letter dated 16.01.2008. Subsequently, <\/p>\n
       the District Magistrate traced and informed the availability of such <\/p>\n
       lands   in   village   Dasipur   and   other   nearby   villages   for   possible <\/p>\n
       acquisition   to   the   Special   Secretary  vide  letter   dated   25.2.2008. <\/p>\n
       Thereafter, the Special Secretary directed the Selection Committee <\/p>\n
       to   inspect   the   available   lands   regarding   the   feasibility   of   their <\/p>\n
       acquisition for the construction of Jail vide letter dated 22.04.2008. <\/p>\n
       Accordingly,   the   Selection   Committee,   after   conducting   detailed <\/p>\n
       spot inspection of the available lands, found and recommended that <\/p>\n
       the   lands   at   village   Dulhar   Sant   Prasad   were   suitable   for <\/p>\n
       construction   of   Jail   on   05.05.2008.     In   this   backdrop,   the <\/p>\n
       respondent   had   issued   a   notification   dated   05.03.2010   under <\/p>\n
                                                                                      2<\/span><\/p>\n
Section   4   read   with   Section   17(4)   of   the   Act   for   acquisition   of <\/p>\n
20.870   hectares   of   land   at   village   Dulhapur   Sant   Prasad,   Tehsil <\/p>\n
Amroha, Jyotiba Phule Nagar for public purpose of construction of <\/p>\n
District  Jail.  The same was published in the local  newspapers on <\/p>\n
26.03.2010.     The   relevant   part   of   the   notification   is   extracted <\/p>\n
below:\n<\/p>\n<\/p>\n
                 “UTTAR PRADEHS SHASAN KARAGAR  <\/p>\n
              PRASHASAN EVEM SUDHAR ANUBHAG – 4<\/p>\n
           The   Governor   is   pleased   to   order   the   publication  <\/p>\n
           of the following English translation of Notification  <\/p>\n
           No. 443\/22-4-2010-101 (b) 2000 dated 05 March,  <\/p>\n
           2010 for general information:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                 NOTIFICATION<\/p>\n
                       No. 443\/22-4-2010-101 (b) 2000<\/p>\n
                       Lucknow: Dated 05 March 2010<\/p>\n
           Under   subsection   (1)   of   section   4   of   the   Land  <\/p>\n
           Acquisition Act, 1894 (Act No. 1 of 1984 (sic.)), the  <\/p>\n
           Governor   is   pleased   to   notify   for   general  <\/p>\n
           information   that   the   land   mentioned   in   the  <\/p>\n
           schedule   below   is   needed   for   the   public   purpose  <\/p>\n
           namely,   for   construction   of   the   District   Jail   in  <\/p>\n
           District Jyotiba Phule Nagar.<\/p>\n<\/blockquote>\n<\/blockquote>\n
           Being of opinion that provisions of subsection  (1)  <\/p>\n
           of section 17 of the said Act are applicable to the  <\/p>\n
           said  land  in as  much  as  the said  land  is  urgently  <\/p>\n
           required   for   construction   of   the   District   Jail   in  <\/p>\n
           District   Jyotiba   Phule   Nagar   and   that   in   view   of  <\/p>\n
           the   pressing   urgency   it   is   as   well   necessary   to  <\/p>\n
           eliminate to delay likely to be caused by an enquiry  <\/p>\n
           under section 5-A of the said Act the Governor is  <\/p>\n
           further   pleased   to   direct,   under   subsection   (4)   of  <\/p>\n
           section   17   of   said   Act,   that   the   provisions   of  <\/p>\n
           section 5-A shall not apply.”\n<\/p><\/blockquote>\n
\n
                                                                                 3<\/span><\/p>\n<\/blockquote>\n
4).           Since   the   appellants’   land   was   also   included   in   the <\/p>\n
       notification,   they   made   representations   dated   07.04.2010   and <\/p>\n
       20.08.2010   to   the   Land   Acquisition   Officer,   the   District <\/p>\n
       Magistrate, Jyotiba Phule Nagar, the Chief Minister and the Home <\/p>\n
       Secretary, Government of U.P. with the request that their land may <\/p>\n
       not   be   acquired   as   they   had   raised   construction   of   houses,   tube <\/p>\n
       wells   and   lands   are   under   cultivation.   They   also   suggested   the <\/p>\n
       availability of large tracts of alternative lands with no construction <\/p>\n
       and irrigation facility situated within one Kilometer towards North. <\/p>\n
       However,   the   concerned   authorities   did   not   reply   to   these <\/p>\n
       representations   of   the   appellants.   Subsequently,   the   appellants, <\/p>\n
       aggrieved by the said notification, filed Writ Petition No. 22252 of <\/p>\n
       2010 before the High Court of Judicature at Allahabad, which was <\/p>\n
       dismissed   vide   its   Order   dated   22.04.2010   without   deciding   any <\/p>\n
       issue on merits on the ground that the writ petition is premature as <\/p>\n
       the   declaration   under   Section   6   has   not   been   issued.   The   High <\/p>\n
       Court   further   granted   liberty   to   the   appellants   to   raise   all   the <\/p>\n
       available grounds, including the applicability of Sections 17(1) and <\/p>\n
       17(4) of the Act, in order to challenge the acquisition of their land <\/p>\n
       once   the   State   Government   proceeds   to   issue   Notification   under <\/p>\n
       Section 6(1) of the Act. Thereafter, the State Government issued a <\/p>\n
       Notification   dated   06.08.2010   under   Section   6   read   with   Section <\/p>\n
                                                                                       4<\/span><\/p>\n
17(1) of the Act whereby, it directed the Collector of Jyotiba Phule <\/p>\n
Nagar to take possession of the said land on the expiry of 15 days <\/p>\n
from the date of publication of the Notice under Section 9(1) even <\/p>\n
in   the   absence   of   any   award   being   made   under   Section   11. <\/p>\n
Eventually, the Public Notice dated 03.09.2010 was issued, which <\/p>\n
expressed the intention of the Government to take possession of the <\/p>\n
said   land,   in   which   it   was   directed   to   the   appellants   to   appear <\/p>\n
before the Special Land Acquisition Officer, Jyotiba Phule Nagar. <\/p>\n
The   appellants,   being   aggrieved,   filed   a   Writ   Petition   before   the <\/p>\n
High   Court   of   Judicature   at   Allahabad  interalia  questioning   the <\/p>\n
correctness of the Notification dated 5.3.2010 issued under Section <\/p>\n
4  read  with  Section  17(4)  and  Notification  dated  6.8.2010  issued <\/p>\n
under   Section   6   read   with   Section   17(1)   thereby   dispensing   with <\/p>\n
the   opportunity   of  hearing   and   enquiry   under   Section   5-A   of  the <\/p>\n
Act. The High Court, vide its impugned Judgment and Order dated <\/p>\n
8.10.2010, dismissed the Wirt Petition and allowed the respondents <\/p>\n
to proceed further with acquisition of the said land in terms of the <\/p>\n
Act   on   the   ground   that   the   construction   of   the   District   Jail   is   an <\/p>\n
urgent matter which has been mentioned in the Notification under <\/p>\n
Section 4 as the very purpose of acquisition of the land. Aggrieved <\/p>\n
by this Judgment and Order of the High Court, the appellants are <\/p>\n
before us in this appeal.\n<\/p>\n
                                                                                      5<\/span><\/p>\n
5).           The   issue   involved   in   the   present   appeal   for   our <\/p>\n
       consideration   is:   Whether   the   respondent   is   justified   in   invoking <\/p>\n
       the   urgency   provision   under   Section   17(1)   and   excluding   the <\/p>\n
       application of Section 5-A in terms of Section 17(4) of the Act for <\/p>\n
       acquisition of the land for construction of District Jail. <\/p>\n
6).           The learned counsel Shri.  Prashant Kumar submits  that the <\/p>\n
       district of Jyotiba Phule Nagar came into existence on 24.04.1997. <\/p>\n
       Since   then,   the   State   Government   had   not   shown   any   kind   of <\/p>\n
       urgency   and   was   only   considering   the   proposal   of   acquiring   the <\/p>\n
       land  for  the  public  purpose  of construction  of the  District  Jail.  It <\/p>\n
       was   only   in   the   year   2010   that   the   State   Government  had   issued <\/p>\n
       Notifications under Sections 4 and 6, invoking urgency provision <\/p>\n
       as contemplated by the Sections 17(1) and 17 (4). In other words, <\/p>\n
       the   lackadaisical   attitude   of   the   State   Government   since   the <\/p>\n
       creation of the new district nearly 13 years ago does not exhibit or <\/p>\n
       depict   any   kind   of   urgency   but   only   lethargy   on   their   part   in <\/p>\n
       acquiring the land. Therefore, the urgency contemplated in the Act <\/p>\n
       cannot be equated with dereliction of responsibility on the part of <\/p>\n
       the   State   Government.   The   learned   counsel   contends   that   the <\/p>\n
       respondents   had   unnecessarily   invoked   the   urgency   provisions <\/p>\n
       under Section 17 (1) read with Section 17 (4) for acquisition of the <\/p>\n
                                                                                      6<\/span><\/p>\n
land for construction of the District Jail in view of the delay of 13 <\/p>\n
years in the issuance of the Notification under Section 4 of the Act <\/p>\n
and   still,   the   said   land   is   under   the   possession   of   the   appellants. <\/p>\n
The learned counsel argues that invoking of the urgency provisions <\/p>\n
under   Section   17(4),   which   excludes   the   application   of   Section <\/p>\n
5-A,   by   the   respondents   in   the   absence   of   any   real   urgency   as <\/p>\n
contemplated by Section 17, amounts to illegal deprivation of the <\/p>\n
right to file objection and hearing of the appellants under Section <\/p>\n
5-A   of   the   Act.   He   submits,   relying   on   various   decisions   of   this <\/p>\n
Court, that the expropriatory legislation like Land Acquisition Act <\/p>\n
must  be given strict construction. He further submits that Section <\/p>\n
5-A   is   a   substantial   right   and   akin   to   Fundamental   Right   which <\/p>\n
embodies   a   principle   of   giving   of   proper   and   reasonable <\/p>\n
opportunity   to   the   land   owner   to   persuade   the   authorities   against <\/p>\n
the   acquisition   of   his   land   which   can   be   dispensed   with   only   in <\/p>\n
exceptional  cases  of real   urgency.     The  learned  counsel  relies  on <\/p>\n
the decision of this Court in Dev Sharan & Others v. State of U.P.<\/a> <\/p>\n
(2011) 4 SCC 769 in support of his contention that dispensing with <\/p>\n
the   opportunity   of  hearing   and   enquiry   under   Section   5-A   of  the <\/p>\n
Act in view of prolonged lethargy of almost 13 years on the part of <\/p>\n
respondents by invoking emergency provisions under Section 17 is <\/p>\n
illegal and unjustified.  The learned counsel has further cited catena <\/p>\n
                                                                                     7<\/span><\/p>\n
       of Judgments of this Court in support of his arguments which has <\/p>\n
       already been dealt with by this Court in  Radhy Shyam v.   State of  <\/p>\n
       U.P. (2011) 5 SCC 553.\n<\/p>\n<\/p>\n
7).            Per Contra, the learned senior counsel Shri. K.K. Venugopal <\/p>\n
       submits that the newly created district of Jyotiba Phule Nagar does <\/p>\n
       not have a District Jail to lodge the prisoners of the district who are <\/p>\n
       presently   accommodated   in   the   Moradabad   District   Jail,   wherein <\/p>\n
       the total population  of inmates  exceeds  by more than three times <\/p>\n
       the capacity of the Jail, causing great hardships to inmates. Further, <\/p>\n
       producing of the prisoners from Moradabad Jail to various Courts <\/p>\n
       in Jyotiba Phule Nagar raises financial  and security concerns. He <\/p>\n
       submits   that   since   the   creation   of   the   new   district,   the   State <\/p>\n
       Government has been making continuous efforts for acquisition of <\/p>\n
       land   to   construct   the   District   Jail.     However,   the   process   of <\/p>\n
       construction of Jail could not be carried forward due to subsequent <\/p>\n
       dissolution   of   the   district   vide   Notification   dated   13.04.2004, <\/p>\n
       which   was   challenged   before   the   High   Court   and   later,   the   High <\/p>\n
       Court quashed the said Notification of Dissolution. Pursuant to this <\/p>\n
       Order   of   the   High   Court,   the   district   was   recreated   in   2004.   He <\/p>\n
       further submits that the State Government had issued a Notification <\/p>\n
       dated 5.3.2010 under Section 4 read with Section 17 (4) of the Act <\/p>\n
                                                                                        8<\/span><\/p>\n
for   acquisition   of   the   said   land   for   public   purpose   of   urgent <\/p>\n
construction   of   Jail   in   the   newly   created   district   by   invoking <\/p>\n
Section   17(4)   of   the   Act   in   order   to   eliminate   delay   likely   to   be <\/p>\n
caused by enquiry under Section 5-A of the Act. Subsequently, in <\/p>\n
view   of   the   said   urgency,   the   State   Government   had   issued <\/p>\n
Notification   dated   6.8.2010   under   Section   6   read   with   Section <\/p>\n
17(1)  of the  Act and  published  it in  the Newspaper   along with  a <\/p>\n
Public   Notice   under   Section   9   of   the   Act   dated   20.08.2010,   all <\/p>\n
within   a   period   of   5   months.     Further,   the   respondents,   after <\/p>\n
hearing   the   objections   and   claims   of   the   appellants   dated <\/p>\n
03.09.2010   regarding   the   compensation   and   measurement   of   the <\/p>\n
land under Section 9 of the Act, handed over the possession of the <\/p>\n
said   land   to   the   Senior   Superintendent   of   Jails,   Mordabad,   on <\/p>\n
07.01.2011.     The   learned   senior   counsel   submits   that   there   is   no <\/p>\n
lethargy   or   negligence   on   the   part   of   the   State   Government   to <\/p>\n
acquire   the   said   land.   He   further   supports   the   observation   of   the <\/p>\n
High Court in the impugned Judgment that construction of Jail is <\/p>\n
an   urgent   matter   requiring   acquisition   of   the   land   by   invoking <\/p>\n
urgency provisions under Section 17 (1) and Section 17(4) thereby <\/p>\n
dispensing  with  the   enquiry  under  Section 5-A  of  the  Act.  He <\/p>\n
further contends that the right of the citizens of filing of objections <\/p>\n
and   opportunity   of   hearing   under   Section   5-A   are   subject   to   the <\/p>\n
                                                                                     9<\/span><\/p>\n
       provisions   of   Section   17   of   the   Act   and   the   same   can   be   legally <\/p>\n
       curtailed   in   the   event   of   any   pressing   need   and   urgency   for <\/p>\n
       acquisition of land in order to eliminate delay likely to be caused <\/p>\n
       by an enquiry  under Section  5-A  of the Act.   The  learned  senior <\/p>\n
       counsel   further   submits   that  Dev   Sharan’s   Case   (Supra)  upon <\/p>\n
       which, the appellant had placed strong reliance is not relevant and <\/p>\n
       applicable   to   the   present   case   because   in   that   case,   this   Court <\/p>\n
       invalidated the acquisition of land by invoking urgency provisions <\/p>\n
       for construction of a new Jail when old Jail was already existed in <\/p>\n
       District Shahjahanpur but was located in a densely populated area <\/p>\n
       which   needs   to   be   shifted.   Learned   Senior   Counsel   has   placed <\/p>\n
       reliance   on   the   decisions   of   this   Court   in  Deepak   Pahwa   v.   Lt.  <\/p>\n
       Governor of Delhi,<\/a> (1984) 4 SCC 308 and  Chameli Singh v. State  <\/p>\n
       of U.P.,<\/a> (1996) 2 SCC 549  in  support of his arguments that even <\/p>\n
       the   delay   and   lethargy   on   the   part   of   the   respondents   will   not <\/p>\n
       disentitle them to invoke urgency provisions under Sections 17 of <\/p>\n
       the Act.\n<\/p>\n<\/p>\n
8).            The issue before us is no more  res integra  as it has already <\/p>\n
       been   decided   by   this   Court   in  Radhy   Shyam’s   Case  (Supra)   in <\/p>\n
       which one of us was the party (G.S. Singhvi, J.) wherein this Court <\/p>\n
       has considered the development of the jurisprudence and law, with <\/p>\n
                                                                                          10<\/span><\/p>\n
respect to invoking of the urgency provisions under Section 17 vis-<\/p>\n
`-vis right  of the  landowner to file  objections  and opportunity  of <\/p>\n
hearing and enquiry under Section 5-A of the Act, by referring to <\/p>\n
plethora of earlier decisions of this Court.   This Court had culled <\/p>\n
out   various   principles   governing   the   acquisition   of   the   land   for <\/p>\n
public purpose by invoking urgency thus:\n<\/p>\n<\/p>\n
           “From   the   analysis   of   the   relevant   statutory  <\/p>\n
           provisions and interpretation thereof by this Court  <\/p>\n
           in  different   cases,  the  following   principles  can  be  <\/p>\n
           culled out:\n<\/p><\/blockquote>\n
<\/blockquote>\n
           (i)   Eminent   domain   is   a   right   inherent   in   every  <\/p>\n
           sovereign   to   take   and   appropriate   property  <\/p>\n
           belonging   to   citizens   for   public   use.   To   put   it  <\/p>\n
           differently,  the sovereign is entitled to reassert its  <\/p>\n
           dominion over any portion of the soil of the State  <\/p>\n
           including   private   property   without   its   owner’s  <\/p>\n
           consent provided that such assertion is on account  <\/p>\n
           of   public   exigency   and   for   public   good   —  <\/p>\n
           Dwarkadas   Shrinivas  v.  Sholapur   Spg.   and   Wvg.  <\/p>\n
           Co. Ltd.46,  Charanjit Lal Chowdhury<\/a>  v.  Union of  <\/p>\n
           India47  and  Jilubhai Nanbhai Khachar  v.  State of  <\/p>\n
           Gujarat48.<\/p><\/blockquote>\n
           (ii) The legislations which provide for compulsory  <\/p>\n
           acquisition of private property by the State fall in  <\/p>\n
           the category of expropriatory legislation and such  <\/p>\n
           legislation   must   be   construed   strictly   —  DLF  <\/p>\n
           Qutab   Enclave   Complex   Educational   Charitable  <\/p>\n
           Trust  v. State of Haryana49; State of Maharashtra <\/p>\n
           v.  B.E.   Billimoria50  and  Dev   Sharan<\/a>  v.  State   of  <\/p>\n
           U.P.242<\/p>\n
           (iii)   Though,   in   exercise   of   the   power   of   eminent  <\/p>\n
           domain,   the   Government   can   acquire   the   private  <\/p>\n
           property   for   public   purpose,   it   must   be  <\/p>\n
           remembered   that   compulsory   taking   of   one’s  <\/p>\n
           property   is   a   serious   matter.   If   the   property  <\/p>\n
           belongs to economically disadvantaged segment of  <\/p>\n
                                                                                  11<\/span><\/p>\n
the   society   or   people   suffering   from   other  <\/p>\n
handicaps, then the court is not only entitled but is  <\/p>\n
duty-bound to scrutinise the action\/decision of the  <\/p>\n
State   with   greater   vigilance,   care   and  <\/p>\n
circumspection   keeping   in   view   the   fact   that   the  <\/p>\n
landowner   is   likely   to   become   landless   and  <\/p>\n
deprived of the only source of his livelihood and\/or  <\/p>\n
shelter.\n<\/p>\n<\/p>\n
(iv) The property of a citizen cannot be acquired by  <\/p>\n
the   State   and\/or   its   agencies\/instrumentalities  <\/p>\n
without complying with the mandate of Sections 4,  <\/p>\n
5-A and 6 of the Act.  A public purpose,  however,  <\/p>\n
laudable   it   may   be   does   not   entitle   the   State   to  <\/p>\n
invoke   the   urgency   provisions   because   the   same  <\/p>\n
have the effect of depriving the owner of his right  <\/p>\n
to property without being heard. Only in a case of  <\/p>\n
real   urgency,   the   State   can   invoke   the   urgency  <\/p>\n
provisions   and   dispense   with   the   requirement   of  <\/p>\n
hearing the landowner or other interested persons.<\/p>\n
(
\n  v
\n   )
\n        Section   17(1)   read   with   Section   17(4)   confers  <\/p>\n
extraordinary   power   upon   the   State   to   acquire  <\/p>\n
private   property   without   complying   with   the  <\/p>\n
mandate   of   Section   5-A.   These   provisions   can   be  <\/p>\n
invoked   only   when   the   purpose   of   acquisition  <\/p>\n
cannot   brook   the   delay   of   even   a   few   weeks   or  <\/p>\n
months.   Therefore,   before   excluding   the  <\/p>\n
application of Section 5-A, the authority concerned  <\/p>\n
must   be   fully   satisfied   that   time   of   few   weeks   or  <\/p>\n
months   likely   to   be   taken   in   conducting   inquiry  <\/p>\n
under Section 5-A will, in all probability, frustrate  <\/p>\n
the public purpose for which land is proposed to be  <\/p>\n
acquired.\n<\/p>\n<\/p>\n
(vi)   The   satisfaction   of   the   Government   on   the  <\/p>\n
issue   of   urgency   is   subjective   but   is   a   condition  <\/p>\n
precedent   to   the   exercise   of   power   under   Section  <\/p>\n
17(1)   and   the   same   can   be   challenged   on   the  <\/p>\n
ground   that   the   purpose   for   which   the   private  <\/p>\n
property   is   sought   to   be   acquired   is   not   a   public  <\/p>\n
purpose   at   all   or   that   the   exercise   of   power   is  <\/p>\n
vitiated   due   to   mala   fides   or   that   the   authorities  <\/p>\n
concerned did not apply their mind to the relevant  <\/p>\n
factors and the records.\n<\/p>\n
                                                                         12<\/span><\/p>\n
                            vii) The exercise of power by the Government  <\/p>\n
                   under Section 17(1) does not necessarily result in  <\/p>\n
                   exclusion   of   Section   5-A   of   the   Act   in   terms   of  <\/p>\n
                   which   any   person   interested   in   land   can   file  <\/p>\n
                   objection and is entitled to be heard in support of  <\/p>\n
                   his   objection.   The   use   of   word   “may”   in   sub-<\/p>\n
                   section   (4)   of   Section   17   makes   it   clear   that   it  <\/p>\n
                   merely   enables   the   Government   to   direct   that   the  <\/p>\n
                   provisions   of   Section   5-A   would   not   apply   to   the  <\/p>\n
                   cases   covered   under   sub-section   (1)   or   (2)   of  <\/p>\n
                   Section   17.   In   other   words,   invoking   of   Section  <\/p>\n
                   17(4)   is   not   a   necessary   concomitant   of   the  <\/p>\n
                   exercise of power under Section 17(1).\n<\/p>\n
\n                   (
\n                     viii
\n                             )
\n                               The   acquisition   of   land   for   residential,  <\/p>\n
                   commercial,   industrial   or   institutional   purposes  <\/p>\n
                   can   be   treated   as   an   acquisition   for   public  <\/p>\n
                   purposes within the meaning of Section 4 but that,  <\/p>\n
                   by itself, does not justify the exercise of power by  <\/p>\n
                   the Government under Sections 17(1) and\/or 17(4).  <\/p>\n
                   The court can take judicial  notice of the fact that  <\/p>\n
                   planning,   execution   and   implementation   of   the  <\/p>\n
                   schemes   relating   to   development   of   residential,  <\/p>\n
                   commercial,   industrial   or   institutional   areas  <\/p>\n
                   usually   take   few   years.  Therefore,   the   private  <\/p>\n
                   property   cannot   be   acquired   for   such   purpose   by  <\/p>\n
                   invoking   the   urgency   provision   contained   in  <\/p>\n
                   Section 17(1). In any case, exclusion of the rule of  <\/p>\n
                   audi  alteram   partem  embodied   in  Sections  5-A(1)  <\/p>\n
                   and (2) is not at all warranted in such matters.”<\/p>\n
9).            In view of the above it is well settled that acquisition of the <\/p>\n
       land   for   public   purpose   by   itself   shall   not   justify   the   exercise   of <\/p>\n
       power   of   eliminating   enquiry   under   Section   5-A   in   terms   of <\/p>\n
       Section   17  (1)   and   Section   17   (4)  of  the   Act.    The   Court  should <\/p>\n
       take judicial notice of the fact that  certain  public  purpose such as <\/p>\n
       development  of residential,  commercial,  industrial  or  institutional <\/p>\n
       areas by their intrinsic nature and character contemplates planning, <\/p>\n
                                                                                            13<\/span><\/p>\n
        execution   and   implementation   of   the   schemes   which   generally <\/p>\n
        takes  time   of  few years.     Therefore,   the   land  acquisition  for  said <\/p>\n
        public purpose does not justify the invoking of urgency provisions <\/p>\n
        under   the   Act.   In  Radhy   Shyam   (Supra),   this   Court,   whilst <\/p>\n
        considering the conduct or attitude of the State Government  vis-`-<\/p>\n
        vis   urgency   for   acquisition   of   the   land   for   the   public   purpose   of <\/p>\n
        planned   industrial   development   in   District   Gautam   Budh   Nagar, <\/p>\n
        has observed:\n<\/p>\n<\/p>\n
                   “In  this   case,   the   Development   Authority   sent   the  <\/p>\n
                   proposal  sometime  in 2006.  The authorities   up to  <\/p>\n
                   the   level   of   the   Commissioner   completed   the  <\/p>\n
                   exercise   of   survey   and   preparation   of   documents  <\/p>\n
                   by the end of December 2006 but it took one year  <\/p>\n
                   and almost three months for the State Government  <\/p>\n
                   to   issue   notification   under   Section   4   read   with  <\/p>\n
                   Sections   17(1)   and   17(4).  If   this   much   time   was  <\/p>\n
                   consumed between  the receipt  of proposal for the  <\/p>\n
                   acquisition   of   land   and   issue   of   notification,   it   is  <\/p>\n
                   not   possible   to   accept   the   argument   that   four   to  <\/p>\n
                   five   weeks   within   which   the   objections   could   be  <\/p>\n
                   filed under sub-section (1) of Section 5-A and the  <\/p>\n
                   time   spent   by   the   Collector   in   making   enquiry  <\/p>\n
                   under   sub-section   (2)   of   Section   5-A   would   have  <\/p>\n
                   defeated the object of the acquisition.”<\/p>\n<\/blockquote>\n
10).            Moreover,   in  Dev   Sharan  Case   (Supra)  the   acquisition   of <\/p>\n
                land for construction of new District Jail, since the old Jail <\/p>\n
                was   overcrowded   and   causing   hardships   including   health <\/p>\n
                and   hygiene   concerns   to   the   inmates,   by   invoking   urgency <\/p>\n
                                                                                             14<\/span><\/p>\n
provision under Section 17 was quashed on the ground that <\/p>\n
the government machinery had functioned at very slow pace <\/p>\n
in processing the acquisition which clearly evinces that there <\/p>\n
was no urgency to exclude the application of Section 5-A of <\/p>\n
the Act. The Court further observed:\n<\/p>\n
  “35.  From  the   various   facts   disclosed   in   the  said  <\/p>\n
  affidavit it appears that the matter was initiated by  <\/p>\n
  the   Government’s   Letter   dated   4-6-2008   for  <\/p>\n
  issuance   of   Section   4(1)   and   Section   17  <\/p>\n
  notifications. A meeting for selection of a suitable  <\/p>\n
  site   for   construction   was   held   on   27-6-2008,   and  <\/p>\n
  the proposal for such acquisition and construction  <\/p>\n
  was sent to the Director, Land Acquisition on 2-7-<\/p>\n
  2008.   This   was   in   turn   forwarded   to   the   State  <\/p>\n
  Government   by   the   Director   on   22-7-2008.   After  <\/p>\n
  due   consideration   of   the   forwarded   proposal   and  <\/p>\n
  documents, the State Government issued Section 4 <\/p>\n
  notification, along with Section 17 notification on  <\/p>\n
  21-8-2008.   These   notifications   were   published   in  <\/p>\n
  local newspapers on 24-9-2008.\n<\/p>\n<\/p>\n
  36. Thereafter, over a period of 9 months, the State  <\/p>\n
  Government   deposited   10%   of   compensation  <\/p>\n
  payable   to   the   landowners,   along   with   10%   of  <\/p>\n
  acquisition   expenses   and   70%   of   cost   of  <\/p>\n
  acquisition   was   deposited,   and   the   proposal   for  <\/p>\n
  issuance   of   Section   6   declaration   was   sent   to   the  <\/p>\n
  Director,   Land   Acquisition   on   19-6-2009.   The  <\/p>\n
  Director   in   turn   forwarded   all   these   to   the   State  <\/p>\n
  Government   on   17-7-2009,   and   the   State  <\/p>\n
  Government   finally   issued   the   Section   6  <\/p>\n
  declaration   on   10-8-2009.   This   declaration   was  <\/p>\n
  published in the local dailies on 17-8-2009.<\/p>\n
  37.     Thus   the   time   which   elapsed   between  <\/p>\n
  publication   of   Section   4(1)   and   Section   17  <\/p>\n
  notifications, and Section 6 declaration in the local  <\/p>\n
  newspapers   is   11   months   and   23   days   i.e.   almost  <\/p>\n
                                                                         15<\/span><\/p>\n
                   one year. This slow pace at which the government  <\/p>\n
                   machinery   had   functioned   in   processing   the  <\/p>\n
                   acquisition,   clearly   evinces   that   there   was   no  <\/p>\n
                   urgency   for   acquiring   the   land   so   as   to   warrant  <\/p>\n
                   invoking Section 17(4) of the Act.\n<\/p>\n<\/p>\n
                   38.  In   Para   15   of   the   writ   petition,   it   has   been  <\/p>\n
                   clearly   stated   that   there   was   a   time   gap   of   more  <\/p>\n
                   than   11   months   between   Section   4   and   Section   6  <\/p>\n
                   notifications, which demonstrates that there was no  <\/p>\n
                   urgency   in   the   State   action   which   could   deny   the  <\/p>\n
                   petitioners   their   right   under   Section   5-A.   In   the  <\/p>\n
                   counter   which   was   filed   in   this   case   by   the   State  <\/p>\n
                   before the High Court, it was not disputed that the  <\/p>\n
                   time gap between Section 4 notification read with  <\/p>\n
                   Section 17, and Section 6 notification was about 11  <\/p>\n
                   months.\n<\/p>\n<\/p>\n
                   39.  The   construction   of   jail   is   certainly   in   public  <\/p>\n
                   interest   and   for   such   construction   land   may   be  <\/p>\n
                   acquired.   But   such   acquisition   can   be   made   only  <\/p>\n
                   by strictly following the mandate of the said Act. In  <\/p>\n
                   the   facts   of   this   case,   such   acquisition   cannot   be  <\/p>\n
                   made by invoking emergency provisions of Section  <\/p>\n
                   17.   If   so   advised,   the   Government   can   initiate  <\/p>\n
                   acquisition   proceeding   by   following   the   provision  <\/p>\n
                   of  Section  5-A  of  the  Act  and  in  accordance  with  <\/p>\n
                   law.”\n<\/p>\n<\/p>\n
11).            In the facts and circumstances of the present case, it is clear <\/p>\n
        that   the   District   of   Jyotiba   Phule   Nagar   was   created   in   the   year <\/p>\n
        1997   which   was,   however,   dissolved   and   recreated   in   2004.   The <\/p>\n
        District Magistrate, Jyotiba Phule Nagar, had sent a proposal to the <\/p>\n
        Principal   Secretary,   Home\/Prisons,   Government   of   U.P.   for <\/p>\n
        acquisition   of   land   for   the   construction   of   District   Jail   on <\/p>\n
        24.01.2003 which is undoubtedly a public purpose. After the lapse <\/p>\n
                                                                                            16<\/span><\/p>\n
        of 5 years in the year 2008, the State  Government asked  District <\/p>\n
        Magistrate   to   trace   availability   of   lands   for   acquisition   for <\/p>\n
        construction   of   the   District   Jail   in   the   proximity   to   District <\/p>\n
        Headquarters   and   further   requested   the   Selection   Committee   to <\/p>\n
        recommend the land suitable for the said purpose. Thereafter, the <\/p>\n
        Selection Committee recommended the acquisition of the said land <\/p>\n
        as suitable for the construction of the Jail but it took two years for <\/p>\n
        the State Government to issue the said Notifications under Section <\/p>\n
        4   and   Section   6   respectively,   thereby   invoking   the   urgency <\/p>\n
        provisions under Section 17 of the Act.  The series of events shows <\/p>\n
        lethargy and lackadaisical attitude of the State Government. In the <\/p>\n
        light of the above circumstances, the respondents are not justified <\/p>\n
        in   invoking   the   urgency   provisions   under   Section   17   of   the   Act, <\/p>\n
        thereby   depriving   the   appellants   of   their   valuable   right   to   raise <\/p>\n
        objections   and   opportunity   of   hearing   before   the   authorities   in <\/p>\n
        order to persuade them that their property may not be acquired. <\/p>\n
12).           The decision  of this Court in  Chameli Singh  (Supra),  upon <\/p>\n
        which   Shri.   K.K.   Venugopal,   learned   senior   counsel   for   the <\/p>\n
        respondents  has placed reliance, has already  been considered and <\/p>\n
        distinguished   by   this   Court   in  Radhy   Shyam   Case   (Supra)  in   the <\/p>\n
        following terms:\n<\/p>\n
                                                                                       17<\/span><\/p>\n
                   “74.  In  State   of   U.P.  v.  Pista   Devi,  Rajasthan  <\/p>\n
                   Housing Board<\/a>  v.  Shri Kishan  and  Chameli Singh <\/p>\n
                   v.  State of U.P.  the<\/a> invoking of urgency provision  <\/p>\n
                   contained in Section 17(1) and exclusion of Section  <\/p>\n
                   5-A was approved by the Court keeping in view the  <\/p>\n
                   acute problem of housing, which was perceived as  <\/p>\n
                   a   national   problem   and   for   the   solution   of   which  <\/p>\n
                   national   housing   policy   was   framed   and   the  <\/p>\n
                   imperative   of providing  cheaper   shelter  to  Dalits,  <\/p>\n
                   tribals   and   other   disadvantaged   sections   of   the  <\/p>\n
                   society.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
13).            Learned senior counsel for the respondents also relied on the <\/p>\n
        decision of this Court in Deepak Pahwa Case (Supra). In that case, <\/p>\n
        the   land   was   acquired  by   invoking   urgency   provisions   under <\/p>\n
        Section 17  for the purpose of construction of a New Transmitting <\/p>\n
        Station   for   the   Delhi   Airport   after   the   correspondence   of   nearly <\/p>\n
        eight   years   among   the   various   Departments   of   the   Government <\/p>\n
        before   the   Notification   and   the   declaration   was   published   in   the <\/p>\n
        Gazette.     This   Court   has   held   that   mere   pre-notification   delay <\/p>\n
        would not render the invocation of the urgency provisions void as <\/p>\n
        very   often,   the   delay   increases   the   urgency   of   the   necessity   for <\/p>\n
        acquisition.   We   are   afraid   that   the   decision   will   not   come   to   the <\/p>\n
        rescue   of   the   respondents   because   this   Court   has   observed   that <\/p>\n
        delay   only   accelerates   or   increases   the   urgency   of   need   of <\/p>\n
        acquisition, which contemplates that delay does not create a ground <\/p>\n
        or cause for urgency but increases the already existing urgency for <\/p>\n
                                                                                           18<\/span><\/p>\n
         acquisition of land for any public purpose.  Therefore, the delay, by <\/p>\n
         itself,   does   not   create   urgency   for   acquisition   but   accelerates <\/p>\n
         urgency   only   in   case   it   already   exists   in   the   nature   of  the   public <\/p>\n
         purpose.\n<\/p>\n<\/p>\n
14).                 For the reasons aforesaid, we hold that the State Government <\/p>\n
         was not justified, in the facts of this case, to invoke the emergency <\/p>\n
         provision   of   Section   17(4)   of   the   Act.   Therefore,   the   appellants <\/p>\n
         cannot be denied of their valuable right under Section 5-A of the <\/p>\n
         Act.\n<\/p>\n<\/p>\n
15).                 In the result, the appeal is allowed. The impugned Judgment <\/p>\n
         and   Order   of   the   High   Court   dated   08.10.2010   is   set   aside.     No <\/p>\n
         order as to costs.\n<\/p>\n<\/p>\n
                                                                                         …………………………J.\n<\/p>\n
                                                                                                  [ G.S. SINGHVI ]<\/p>\n
                                                                                            ………………………\n<\/p>\n
                                                                                                                …J.\n<\/p>\n
                                                                                                       [ H. L. DATTU ]<\/p>\n
         New Delhi,<\/p>\n
         August  03,  2011.\n<\/p>\n
                                                                                                                  19<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Devendra Singh & Ors vs State Of U.P. & Ors on 3 August, 2011 Author: …J. Bench: G.S. Singhvi, H.L. Dattu 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-200660","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDevendra Singh & Ors vs State Of U.P. & Ors on 3 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/devendra-singh-ors-vs-state-of-u-p-ors-on-3-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Devendra Singh & Ors vs State Of U.P. & Ors on 3 August, 2011 - 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