Citation Codes

Equivalent Citations

citation codes

Case Number

C.W.P Nos. (S) 4014/98, 4357/98, 4729/98, 4843/98

Attorney(S)

Mr. Ravinder Sethi, Sr. Advocate with Mr. Ramesh Vats and Mr. Subhash Mittal, Mr. N.S Negi, Advocates for the Petitioners.
Mrs. Geeta Luthra, Advocate for the Respondents.

Judges

S.B Sinha, C.J
A.K Sikri, J.

Acts

Sections 4 and 17 of the Land Acquisition Act, 1894 (hereinafter referred to as the Acquisition Act)
NATIONAL CAPITAL REGION PLANNING BOARD ACT 1985
section 4, sub-section (1).23. The provisions of Section 17 of the Acquisition Act
provision.24. Sub-sections (1) and (4) of Section 17 of the Acquisition Act,
Clusters.(3) Draft notifications u/s 4, 6 & 17 of the Land Acquisition Act
Delhi Development Act, 1957 (hereafter referred to as DDA Act)
SECTION 4 LAND ACQUISITION ACT 1894
provisions of Section 17(1) of the Land Acquisition Act
SECTION 6 LAND ACQUISITION ACT 1894
provisions of Section 17(4) of the Acquisition Act
provisions of Section 5A of the Acquisition Act,
provisions of Section 17 of the Acquisition Act
Sections 4, 6 and 17(1) of the Acquisition Act.
provisions of sub-section (1), or sub-section (2)
22. Section 17(4) of the Land Acquisition Act
ARTICLE 226 CONSTITUTION OF INDIA
notifications u/s. 4, 6 & 17(1) of the LA Act
Section 17(4) of the Acquisition Act
Section 5-A of the Acquisition Act
Section 17 of the Acquisition Act
Section 6 of the Acquisition Act
Section 17(1) and Section 17(4)
U/s. 4, 6 & 17(1) of the L.A Act.
sub-section (4) of Section 17
provision of sub-section (1)
section 17.21. Section 17(2)
u/s. 4, 6 & 17 of LA. Act, 1894.
Sections 4, 6 and 17(1)
Sections 4, 6 17 (1).

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

These writ petitions, heard together, challenged Notifications dated 30 July 1998 and 4 August 1998 issued under Sections 4, 6 and 17 of the Land Acquisition Act, 1894, by which about 200 acres of land in Village Bhalsawa (Bhalaswa) Jahangirpur were notified for acquisition for the stated public purpose of "Rehabilitation of JJ Clusters" and for establishment of J.J. Transit Camps. The petitioners are owners of the lands sought to be acquired. The Notifications included a direction that the provisions of Section 5-A of the Acquisition Act be dispensed with pursuant to Section 17(4) (i.e., the urgency exception).

The court record produced by respondents showed that the acquisition process was initiated by a requisition letter (dated 20 July 1998) from the Additional Commissioner (Slum & J.J.), received 24 July 1998; several internal notes, checks and draft notifications were processed over the same day (24 July 1998); approval was recorded at successive levels (Deputy Secretary, Joint Secretary, Secretary (Land)) and the Lt. Governor approved on 28 July 1998; the formal notification was gazetted on 30 July 1998 and the declaration under Section 6 followed on 4 August 1998. The petitioners obtained court stay orders; the respondents filed a counter-affidavit explaining the public-interest concerns (e.g., removal/rehabilitation of slum clusters).

Legal Issues Presented

Whether there was material on record to show that the acquiring authority applied its mind to invoke the urgency provision contained in Section 17 of the Land Acquisition Act?
Whether, in the facts of these cases, it was lawful to dispense with the inquiry under Section 5-A of the Act (i.e., whether Section 5-A could properly be excluded by invoking Section 17(4))?

Arguments of the Parties

Petitioners' Arguments (as summarised in the opinion)

Acquisition for planned development ought to be made by the Delhi Development Authority (DDA) under the DDA Act; the impugned notifications are therefore bad in law.
The Lt. Governor did not apply his mind to the materials when invoking the urgency clause in Section 17(1).
No material on record justified invoking Section 17(4) to dispense with Section 5-A; the order suffers from total non-application of mind.
Section 5-A provides a statutory safeguard (right to file objections) and this right should not be taken away without cogent reason, particularly when court orders had earlier prohibited rehabilitation of jhuggi-jhopris in some contexts.
The impugned acquisition is mala fide in law.
The master plan and zonal development plan prepared under the DDA Act and the Regional Plan could not be departed from; the impugned notification should be set aside for failure to respect planning controls.
The petitioners relied on a series of precedents (listed in the record) in support of these contentions.

Respondents' Arguments (as summarised in the opinion)

Setting up a rehabilitation programme for settling J.J. Clusters is a public purpose.
There is no bar to acquiring land within the NCT of Delhi for settling J.J. Clusters; the acquiring authorities may choose the location.
The Court, in exercise of Article 226, should not interfere with executive policy regarding acquisitions.
The State has a duty to remove encroachments of government lands and rehabilitation had to be carried out on an urgent basis, justifying invocation of Section 17.
A requisition had been made by the Slum and J.J. Department, MCD, which itself had been requisitioned by 22 agencies — the acquisition need not be requisitioned only by DDA.
Rehabilitation was required for reasons of sanitation, environment and public health and the urgency clause could therefore be invoked.
Provision of housing for poor, Dalit and landless labourers has historically been treated as urgent; respondent counsel relied on several Supreme Court decisions and sought to place Jai Narain (supra) as authority that courts may take judicial notice of the requirements for invoking the urgency clause.
Respondents also argued that the agricultural nature of land is not by itself a ground to set aside acquisition, and that change of user is a subsequent process under the DDA Act once State acquires the land.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S.K. Gupta v. The Union of India and Others, AIR 1977 Delhi 209	Cited for the proposition that planned development (public purpose) is not synonymous with 'urgency' and that Section 17 should not be treated as routine.	The court relied on S.K. Gupta to emphasize that urgency must be specifically shown and that Section 17 is an exceptional power, not to be used routinely.
Mukesh Hans Etc. v. Union of India & Others, 2002 1 AD (Delhi) 422 (2001 (60) DRJ 376)	Cited in the context of examining file notings and whether the Lt. Governor applied independent mind before dispensing with Section 5-A.	The court cited Mukesh Hans to support the proposition that absence of explicit notings showing conscious decision-making by the Lt. Governor indicates lack of independent application of mind.
Deepak Bhardwaj & Others v. Union of India & Others, 2001 VI AD (Delhi) 597; 2001 (60) DRJ 514	Addresses the nature of inquiry under Section 5-A as summary, the inappropriateness of denying landowners statutory right due to administrative delay, and the extraordinary character of Section 17.	The court relied on Deepak Bhardwaj to hold that Section 5-A inquiry is a summary process and that delays by the Collector should not justify denial of the landowner's right; also that Section 17 is extraordinary and requires grave, sudden situations.
State of Punjab & Another v. Gurdial Singh & Others, (1980) 2 SCC 471	Principles on emergency power: hearing before deprivation is generally required; Section 17 confers extraordinary power to be used only for real urgency.	The court quoted this decision to underline that denial of hearing and use of emergency power should be exceptional and that Section 17 requires a genuine emergency.
Nandeshwar Prasad & Ors. v. U.F. Government and Others, AIR 1964 SC 1217	Listed among authorities relied on by petitioners (specific principle not elaborated in the opinion text).	The opinion lists this case among those cited by petitioners; no further elaboration of its application appears in the provided text.
Raja Anand Brahma Shah v. The State of U.P. and Others, AIR 1967 SC 1081	Listed among authorities relied on by petitioners (specific principle not elaborated in the opinion text).	Cited by petitioners; the opinion does not elaborate a specific application of this case beyond its citation.
Om Prakash & Another v. State of U.P. & Others, (1998) 6 SCC 1	Held that urgency provisions in Section 17 are exceptions and should be invoked only when exigencies demand.	The court cited Om Prakash to reinforce that Section 17 is an exception and must be invoked only when circumstances genuinely demand it.
M.C. Mehta v. Union of India & Others (JT 1996 (6) SC 129; AIR 1996 SC 2231; (2001) 4 SCC 577)	Cited regarding need to comply with master plan and zonal development plan requirements and environmental considerations (Delhi's planning and pollution context).	The court relied on M.C. Mehta decisions to stress that master plan and zonal development plan requirements must be complied with and are relevant to assessing whether acquisition would achieve its stated purpose.
Ghaziabad Development Authority v. Delhi Auto & General Finance Pvt. Ltd. & Ors., JT 1994 (3) SC 275	Cited in connection with master plan/zonal plan compliance (specific principle not elaborated in the opinion text).	The opinion cites this case in the context of master/zonal plan enforcement; no detailed application beyond citation is provided in the text.
Chameli Singh & Others v. State of U.P. & Another, AIR 1996 SC 1051	Cited by respondents to support urgency or public-interest acquisition arguments (specific principle not elaborated in the opinion text).	Referenced by respondents; the opinion does not set out a detailed application other than that respondents relied on it to justify urgency in some contexts.
Meerut Development Authority v. Satbir Singh & Others, AIR 1997 SC 1467	Cited by respondents in support of urgency/public-purpose arguments (specific principle not elaborated in the opinion text).	Cited in respondents' list of authorities; the opinion does not elaborate specific application of the case facts to the present matter.
Rajasthan Housing Board & Others v. Shri Kishan & Others, (1993) 2 SCC 84	Cited by respondents in support of acquisitions for housing/public purpose (specific principle not elaborated in the opinion text).	Cited by respondents; the court's opinion does not provide detailed application beyond noting reliance.
Balmokand Khatri Educational & Industrial Trust, Amritsar v. State of Punjab & Others, AIR 1996 SC 1239	Cited by respondents in support of urgent housing/public-purpose acquisitions (specific principle not elaborated in the opinion text).	Cited by respondents; the opinion records the citation but does not elaborate further within the provided text.
Jai Narain & Others v. Union of India & Others, AIR 1996 SC 697	Cited by respondents for the proposition that courts may take judicial notice of requirements for invoking urgency clause in appropriate cases.	The court noted respondents' reliance on Jai Narain (supra) but then analyzed the record to determine whether the statutory preconditions for urgency were met; the case was considered in argument, though the court did not accept respondents' urgencysupported position on the record.
Chaitnya Charan Das v. State of West Bengal & Others, AIR 1995 Calcutta 336	Cited for the proposition that discretion must be exercised fairly, reasonably and equitably and not arbitrarily.	The court cited this authority to support the view that administrative discretion in acquisitions must be exercised reasonably and not arbitrarily.
Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16	Cited for the principle that a statutory order cannot be supplemented by affidavit; decisions must be judged on the statutory record.	The court applied this principle to hold that the statutory order must stand or fall on the record and cannot be rescued by post-hoc affidavits.
Mohinder Singh Gill & Another v. The Chief Election Commissioner & Others, AIR 1978 SC 851	Cited similarly for the principle that statutory actions must be judged by the statutory record and not by extraneous affidavit material.	The court relied on this authority to support the proposition that a statutory decision must be defensible on the record itself.
Braj Kishore Singh & Company v. State of Bihar & Others, AIR 1996 Patna 32	Cited for the statement that "indecent haste" in administrative action may amount to malice in law.	The court quoted this Patna High Court decision to underline that indecent haste in public administrative transactions can indicate malice in law; the opinion used it illustratively in assessing the record.
Seshagiri Mailer v. Special Tehsildar for Land Acquisition, Kozhikode, AIR 1965 Ker. 92	Cited in S.K. Gupta and in the opinion to distinguish 'public purpose' from 'urgency'.	The opinion referenced Seshagiri Mailer (via S.K. Gupta) in support of the proposition that public purpose does not equate to urgency.

Court's Reasoning and Analysis

The court undertook a step-by-step review of the administrative record and the legal framework:

Record review: The court examined the file notings, draft notifications and requisition documents. It found that the acquisition process had been initiated by the Additional Commissioner (Slum & J.J.) by a letter dated 20 July 1998 (received 24 July 1998) requesting acquisition for transit camps to re-locate JJ cluster families. The draft notifications and various notings were processed rapidly (primarily on 24 July 1998), and approval was recorded up the chain to the Lt. Governor who purportedly approved by 28 July 1998, with gazette publication on 30 July 1998 and a declaration on 4 August 1998.
Deficiencies in the process: The court noted several procedural lacunae in the record: the requisition did not come through the DDA despite a departmental order of 14 July 1987; a joint survey report was not furnished with the draft notification; the requisition did not expressly seek invocation of the urgency clause; the draft notifications were prepared and checked by multiple subordinate officers in quick succession; and important internal notings reflected that the proposal had not come through DDA and that the 80% estimated compensation figure had been indicated. The court emphasized these anomalies as relevant to whether a genuine satisfaction to invoke Section 17 existed.
Legal standards on urgency and Section 17: The court set out the legal principle that Section 17 is an exception granting special powers in case of urgency; therefore urgency must be demonstrated and recorded. Sub-sections 17(1) and 17(4) operate differently: 17(1) allows possession after 15 days, whereas 17(4) permits dispensing with Section 5-A when the appropriate government is satisfied that the conditions of sub-section (1) or (2) apply. The opinion stressed that the existence of urgency is the sine qua non for invoking Section 17 and that some reasons (if not strong and cogent) must be recorded.
Section 5-A safeguards and its purpose: The court explained the twin purposes of the Section 5-A inquiry — to inform the decision-making authority of the need for the land and to guard against ill-formed requisitions — and described it as a summary inquiry that protects landowners' right to be heard. The court held that dispensing with Section 5-A requires sufficient or cogent reasons recorded on the file.
Master plan and change of user: The court observed that the lands were shown in the master plan as agricultural/Green Belt and that the DDA has statutory responsibility for planned development under the DDA Act. The court held that change of user under the DDA Act and compliance with master plan/zonal development plans are relevant and that acquisition cannot be treated as independent from these planning controls when the acquisition's stated purpose could not be fulfilled without change of user.
Application of precedent and discretionary limits: The court reviewed cited authorities (including S.K. Gupta, State of Punjab v. Gurdial Singh, Om Prakash, Deepak Bhardwaj and M.C. Mehta) and concluded that precedent supports the proposition that Section 17 is extraordinary and must be invoked only in genuine emergencies; administrative discretion must be exercised reasonably, not arbitrarily; and the record must justify any dispensation of Section 5-A.
Findings on the facts: On the evidence, the court concluded that no material on the file justified invocation of Section 17(4) to dispense with Section 5-A: the requisition did not request urgency; the urgency notion seemed to have originated from an Office Superintendent who typed draft notifications under Sections 4, 6 and 17(1); no joint survey report and insufficient reasons were on file; the matter had not come through the DDA and no reason was assigned for that departure; and the Lt. Governor's note did not show independent application of mind to dispense with Section 5-A. The court also described the record as showing "indecent haste" suggestive of malice in law.
Conclusion of law on application: Applying the legal standards to the record, the court found that the statutory prerequisites for invoking the urgency provision and for dispensing with Section 5-A were not met. The court therefore concluded the impugned notifications could not stand.

Holding and Implications

HOLDING: The writ petitions are allowed and the impugned notifications (dated 30 July 1998 and 4 August 1998) are set aside. An appropriate writ shall issue. There shall be no orders as to costs.

Implications

Direct effect: The specific notifications under Sections 4, 6 and 17 (including the direction to dispense with Section 5-A) in respect of the identified lands in Village Bhalsawa Jahangirpur were quashed; the acquisition process as effected by those notifications is invalid on the available record.
Reasoning emphasis: The decision underscores that Section 17 is an exceptional provision that cannot be invoked routinely; the satisfaction to invoke urgency must be supported by contemporaneous material on the file and there must be an independent application of mind by the appropriate authority to dispense with Section 5-A.
Planning controls: The court reiterated the relevance of master plan and zonal-development controls under the DDA Act — change of user cannot be ignored when assessing whether an acquisition will achieve its public purpose.
Precedential note: The opinion applies and follows established precedents on the limits of Section 17 and on the procedural protections of Section 5-A. The opinion does not purport to create a new precedent beyond applying existing law to the facts; the immediate legal consequence is the setting aside of the impugned notifications in these petitions.

Note: This summary is strictly based on the material contained in the provided court opinion and does not add facts or inferences beyond that text.

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Praveen Jain And Others. v. Union Of India And Others

S.B Sinha, C.J— These writ petitions involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.

2. The petitioners in these matters, inter alia, have questioned a Notification dated 30th July 1998 issued by the respondents herein purported to be in terms of Sections 4 and 17 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Acquisition Act’) as also the Declaration and Notification dated 4th August 1998 issued under Sections 6 and 7 thereof. The said Notifications reads as under:

No. F. 11 (24)/98.L&B/LA/6345 Dated 30.7.1998

NOTIFICATION

Whereas it appears to the Lt. Governor, Delhi that land is likely to be required to be taken by the Government at the public expense for a public purpose namely for Rehabilitation of JJ Clusters. It is hereby notified that the land in the locality described below is likely to be acquired for the above purpose.

The notification is made, under the provisions of Section 4 of the Land Acquisition Act, 1894, to all whom it may concern.

In exercise of the powers conferred by the aforesaid section, the Lt. Governor, Delhi is pleased to authorise the officers for the time being engaged in the undertaking with their servants and workmen to enter upon and survey the land in the locality and do all other acts required or permitted by that section.

The Lt. Governor is satisfied also that provisions of sub-section (i) of the section 17 of the said Act are applicable to this land and is further pleased under sub-section (4) of the said section to direct that all the provisions of section 5(a) shall not apply.

SPECIFICATION

Village: Bhalsawa Jagangirpur

Total Area (Bigha-Biswa) 929-15.

***********

No. F. 11 (24)/98.L&B/LA/6711 Dated 04.08.1998

NOTIFICATION

Whereas the Lt. Governor, Delhi is satisfied that land is required for a public purpose, namely for Rehabilitation of JJ Clusters. It is hereby notified that the land described in the specification below is required for the above purpose.

This declaration is made under the provisions of section 6, the Land Acquisition Act, 1894, to all whom it may concern and under the provisions of Section 7, of the said Act. The Collector of Delhi is hereby directed to take order for the acquisition of the said land.

A plan of the land may be inspected at the office of the Collector of Delhi.

SPECIFICATION

Village: Bhalsawa Jahangirpur

Total Area (Bigha-Biswa) 929-15”

3. By reason of the afore-mentioned Notifications, about 200 acres of land situated in Village Bhalaswa, Jahangirpur are sought to be acquired and possession thereof is sought to be taken over by resorting to the urgency provision contained in Section 17 of the Acquisition Act for alleged public purpose i.e for rehabilitation of J.J Clusters.

4. The petitioners are owners of their respective lands details whereof have been stated in their respective writ petitions.

5. It is not in dispute that in terms of Delhi Development Act, 1957 (hereafter referred to as ‘DDA Act’) master plan of Delhi 1962 was prepared by the Central Government, which came into force on 1st September 1962. The plan was originally to remain valid for a period of 20 years, wherein the lands in question had been shown as Agricultural Green Belt. The master plan of Delhi 2001 indicates four tier system of planning and balanced development of the region with a view to promote orderly growth.

6. In terms of the said master plan recommendations for development of the Delhi Metropolitan Area had been made covering an area of 2073 Sq. Kms. Seven self contained towns were contemplated to be set up having residential facilities and also having strong economic, social and cultural ties with the core city. The Parliament also enacted the National Capital Region Planning Board Act, 1985 with the following objective:

“To provide for the constitution of a Planning Board for the preparation of a plan for the development of the National Capital Region and for coordinating the monitoring the implementation of such plan and for evolving harmonised policies for the control of land uses and development of infrastructure in the National Capital Region so as to avoid any haphazard development of that region and for matters connected therewith or incidental thereto.”

7. A statutory regional plan 2001 had also been prepared by the National Capital Region Planning Board. The important guide-lines, whereof are: (i) a balanced and harmonized developed region leading to dispersal of economic activities; and (ii) population.

The said document outlined and following strategies:—

(1) Projects for the acquisition and development of land for the proposed new townships in accordance with prescribed Master Plans. This includes provision of concomitant physical and social infrastructure in an integrated manner by way of support for the core economic activities in the new townships.

(2) Projects for development of core economic activfties in each of these new townships e.g a wholesale market at Kundli, a wholesale market as well as an industrial complex in Hapur, Central Government Office complexes in Alwar.

(3) Concomitant schemes for shifting industries and other informal section activities as well as informal sector housing (squatter settlements) from Delhi Union Territory to the new townships.

RIVAL CONTENTIONS:

8. The contentions of the petitioner as urged by Mr. Ravinder Sethi, learned Senior Counsel appearing on behalf of the petitioners are that:

(i) As for planned development, acquisition of land is only to be made by the Delhi Development Authority (in short DDA') in terms of the provisions of the DDA Act, the purported notification must be held to be bad in law.

(ii) The Lt. Governor did not apply his mind on the materials for invoking the urgency Clause as contained in Section 17(1) of the Acquisition Act.

(iii) In any event, no material is available on records to show that there existed a situation warranting action under Section 17(4) of the Acquisition Act and thus the impugned order must be held to be illegal as the same suffers from vice of total non-application of mind.

(iv) As Section 5-A of the Acquisition Act provides for a valuable statutory safeguard to the owners of the land to file objections, such a right should not be taken away without cogent and valid reason, particularly in view of the fact that by reason of various orders of the Court, rehabilitation of jhuggy-jhopris had been prohibited.

(v) The impugned acquisition is mala fide in law.

In support of the said contentions strong reliance has been placed upon S.K Gupta v. The Union of India and Others, AIR 1977 Delhi 209; Mukesh Hans Etc., Etc v. Union Of India & Others, 2002 I AD (Delhi) 422 : 2001 (60) DRJ 376, Deepak Bhardwaj & Others. v. Union Of India & Others., 2001 VI AD (Delhi) 597 : 2001 (60) DRJ 514, State of Punjab and Another v. Gurdial Singh and Others, (1980) 2 SCC 471, Deepak Bhardwaj & Others. v. Union Of India & Others., 92 (2001) DLT 891 (DB); Nandeshwar Prasad & Ors. v. U.F Government and Others etc., AIR 1964 SC 1217, Raja Anand Brahma Shah v. The State of Uttar Pradesh and Others, AIR 1967 SC 1081, Om Prakash and Another v. State of U.P and Others, (1998) 6 SCC 1.

(vi) In any event, as the master plan and zonal development plan prepared by the DDA under the provisions of the DDA Act as also in terms of National Capital Region Planning Board Act, 1985 (in short the ‘Capital Region Act’) could not have been deviated from the impugned notification is liable to set aside.

Reliance, in this connection, has been placed on M.C Mehta v. Union of India & Ors., JT 1996 (6) SC 129 and Ghaziabad Development Authority v. Delhi Auto & General Finance Pvt. Ltd. & Ors., JT 1994 (3) SC 275.

9. Ms. Geeta Luthra, learned counsel appearing on behalf of the respondents, on the other hand, would contend:

(i) setting up a rehabilitation programme for settling J. J. Clusters is a public purpose;

(ii) there is no bar to acquire the land within the National Capital Territory of Delhi (in short' NCT of Delhi') for settling the J.J Cluster;

(iii) the acquiring authorities are free to choose the location;

(iv) this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot interfere with the executive policy of the State.

(v) As the State is duty bound to remove encroachments of Government lands for which the rehabilitation programme for the encroacher had to be carried out and, keeping in view the fact that such rehabilitation programme was to be taken recourse to on an urgent basis, the urgency Clause contained in Section 17 of the Act could be invoked.

(vi) For a valid acquisition there must be a requisition and it is not necessary that such requisition should only emanate from DDA. It was pointed out that a requisition had been made by the Slum and JJ Department, Municipal Corporation of Delhi, which in turn had been requisitioned by 22 agencies.

(vii) Rehabilitation programme was required to be undertaken by removing the Jhuggy-jhopris and other encroachments, having regard to sanitation, environment, public health, etc.

(viii) A project of housing for dalit and poor and non-citizens had always been found to be urgent and thus urgency Clause invoked by the Lt. Governor cannot be said to be unjust. Reliance in this connection had been placed on Chameli Singh and Others etc. v. State of U.P and Another, AIR 1996 SC 1051, Meerut Development Authority etc. v. Satbir Singh and Others, AIR 1997 SC 1467, Rajasthan Housing Board and Others v. Shri Kishan and Others, (1993) 2 SCC 84, Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab and Others, AIR 1996 SC 1239. Relying on a decision of the Apex Court in Jai Narain and Others etc. etc. v. Union of India and Others, AIR 1996 SC 697, learned counsel would contend that even the Court, having regard to the facts and circumstances of this case, may take judicial notice of the requirements of invoking the urgency Clause.

10. As regards the contention of Mr. Sethi to the effect that the lands in question are agricultural in nature learned counsel would contend that the same could not have been per se a ground for setting aside an acquisition proceeding inasmuch as development in terms of the master plan has nothing to do with acquisition. Learned counsel would contend that the State upon acquisition of such lands would be tree to take recourse to the provisions of the DDA Act for the purpose of change in user of the lands in question in terms of the provisions of the Acquisition Act.

11. Satisfaction of the Lt. Governor, Ms. Luthra would urge is based on records and once it is found that there was some materials on record the Court will not substitute its view. The proceedings under the provisions of Section 5A of the Acquisition Act, as is not likely to be finished within a period of 30 days, invocation of urgency Clause cannot be said to be wholly illegal and without jurisdiction. In support of the said contention reliance has been placed on Jai Narain (supra).

FINDINGS:

The respondents have produced before us the records of the case. From the said records it appears that one Manjit Singh, Additional Commissioner (Slum and J.J) initiated the process of acquisition by sending a letter dated 20th July 1998, which was received in the office of the respondents on 24th July 1998. In the said requisition a request was made to acquire about 200 acres of land for establishment of J.J Transit Camps on the right side of the outer Ring Road in the Bhalaswa Village by the side of the existing settlement, popularly known as Bhalaswa Dairy. The said proposal was approved by the Chief Minister in a meeting. It had been notiged that the proposal had not come through DDA which was necessary in terms of the order of the Lands & Building Department dated 14th July 1987. A draft notification had also been received from the office of the SDM/LAC (Model Town) by a letter of the same date alongwith AKS Sizra and Field Book. It was further noticed that joint survey report had not been furnished alongwith the draft notification.

13. The said draft notification was sent for checking to Tehsildar (L&B), whether the matter was placed before the office of DS (LA) on the same date asking Tehsildar to check the draft notification and ‘report. One Mr. T. Singh compared the draft notification of Village Bhalaswa Jahangir Pur received from LAC (Narela) with L.R Register and field book and allegedly found the same to be in order. The matter thereafter was placed before the Tehsildar (L&B). OS(LA) was asked to type out the fair draft notification under Sections 4, 6 and 17(1) of the Act and essential certification for the approval of Lt. Governor, Delhi, whereupon a fair typed notification under Sections 4, 6 and 17(1) of the Acquisition was added.

A note was prepared by OS/LA, which is to the following effect:

“This is regarding the proposal of acquisition of land for the establishment of J.J Transit Camps. The Slum and J.J Department, Municipal Corporation of Delhi, Copy of the minutes No. PS(S&JJ)/98.Addl. Commr/D-487, dated 20.7.98 which is issued by Sh. Manjit Singh, Additional Commissioner (S&JJ) is placed at page 1-3.C. The SDM/LAC (Model Town), Delhi has been sent the draft notification of U/s. 4 & 6 of the LA Act evoked the urgency clause u/s. 17(1) of the Act vide his letter SDM/MT/LA/98/2900, dated 24.7.98 (page 41.C). But it is worthwith to mention here that this proposals has not come through DDA. Second, the SDM/LAC has not furnished the joint-Survey Report alongwith the draft notification and third he has indicated the 80% compensation amount in his forwarding letter at 40.C. However, the fair draft notification are placed opposite of U/s. 4, 6 & 17(1) of the L.A Act. The essential certificate is also placed opposite for the kind approval of Hon'ble Lt. Governor of Delhi. Hence, if approved, we may send this to N.T/Teh. (L&B) for checking of this notification before submitted the file to Higher Authorities.

Submitted please.”

Thereupon the matter was again placed before an Officer who compared/checked the draft notifications with the draft notification furnished by LAC/(Narela) and found the same in order.

The matter was again placed before DS(LA) who noted:

“The proposal has been received from Addl. Commissioner (S&JJ), Slum & J.J Department, MCD, Delhi vide his note No. PS(S&JJ)/98.Addl. Commissioner/D-487 dated 20.7.98 for acquisition of about 200 acres of land in North Delhi i.e in the Village Bhalsawa Jhangirpur for the establishment of J.J Transit Camp/EWS beneficiary for abut 15000 families and the proposal is stated to have been approved by the Hon'ble Chief Minister of Delhi in the meeting (at page 3.C). The proposal has not come through DDA in terms of order dated 14th July 1987 issued by this Department (at page 4.c).

The draft notification u/s. 4, 6 & 17(1) of the la act for acquisition of 929-15 Bigha of land in village Bhalsawa Jhangirpur has been received along with the copies of related revenue record vide SDM/LAC (Model Town) letter No. SDM/MT/LA/98/2900 dated 24.7.98 (at page 41.C). The copy of the Joint Survey Report has not been received with the draft notification sent by the SDM/LAC (Model Town). The 80% estimated compensation amount for the above land to be acquired has been communicated by the SDM/LAC as Rs. 22,00,00,000/- (Twenty two crores) (at page 40.c).

The draft notification so received has been scrutinized by the Revenue Branch of this Department and reported to be in order is at page 2.N.

In view of the above, if approved we may request the Hon'ble L.G to accord his approval for issue of notification u/s. 4, 6 & 17 of LA. Act, 1894. The draft notifications u/s. 4, 6 & 17(1) of the la act are placed opposite (at page 42.c to 54.c) and order for invoking section 17 of the Act for signature of Hon'ble LG is at page 55.c.

Submitted please.”

14. On the said note-sheet the Joint Secretary (L&B) noted:

(1) “As decided in the meeting in the room of Secy. (Land) on 16.7.98, a site, inspection of land at Village Bhalaswa was conducted by Revenue, Slums & L&B Officials on 20.7.98

(2) Based on it, a draft notification has been forwarded by SDM/LAC, Model Town for acquisition of 929-15 Bigha (i.e 193.7 acres) for rehabilitation of J.J Clusters.

(3) Draft notifications u/s 4, 6 & 17 of the Land Acquisition Act are placed at 54.C, 48.C and 42.C respectively for approval of Hon'ble LG. The other invoking the urgency clause is also placed at 55.C for LG's approval and signature.”

15. All happened in one day i.e on 24th July 1998. The matter was placed by the Joint Secretary before the Secretary (Land) on 27th,July 1998 stating the Secretary (Land) approved the said proposal on the same day and placed before the PS/Secy. (Land), whereupon the matter was placed before the Lt. Governor who approved the same on 28th July 1998, pursuant whereto, a direction was made to issue the notification, and on 29th July 1998 the notification was prepared and it, as noticed hereinbefore, was gazetted on 30th July 1998.

A bare perusal of the afore-mentioned notings would clearly show that the purported acquisitions were made for J.J Transit Camps but in the counter affidavit it has been contended:

“It has been noticed that many Jhuggi Jhopri Clusters are located on various prime project lands and the same also need to be vacated and the clusters removed so that the said projects may be commenced. More than 6000 families are located in jhuggi jhopri clusters alongthe proposed metro project tracks, NDMC area, Nehru Place, District Centres, Railway Lines and many other prime locations. These Jhuggi Jhopri clusters, and dwellers are required to be relocated on an urgent basis. It is pertinent that the jhuggi jhopri clusters belong to the poorest section of people who are mainly labour and working class and the same have to be rehabilitated in centres even for the purposes of hygiene and health. The planners of Delhi have every right and authority to decide how and in what manner the development of the city should be planned and to modify the plans in accordance with law.”

16. We may also notice that after orders of stay were passed by this Court whereupon Mr. Sahib Singh Verma, a former Chief Minister of Delhi stated in 2nd week of October 1998 which had been recorded in a video cassette, the manuscript whereof is an under:—

“DEKEIA MEA SHALIMAR BAGH KA LOGON SAY MERA AKE COMMITMENT THA ORE BHOTH SARE COMMITMENT THEA, EAK COMMITMENT KO MAE PURA NEHI KAR PAYA HOON AUR WO COMMITMENT THA YAEH HEI KI HEI JITENA LOG GAREEB LOG YEAHN REHATHE HEIN JHUGGI CHOPRA WALLE, MEI IN JHUGGI JHOPARI WALLEM KO KHEHIN VEKELIP STHAN DILWAOGA, KAKELIP STHAN DILWAK-KAR ENHEN YEHAN SAY SHIFT KARVUYGA, THAKI IN LOGO KE BHI RATHA MELA OR HUM LOGO KE BHE RATHA MELE, YEHAM LOGO REHATHE HE THO PHIR USKE LIYE MENA 200 ACRE JHAMIN BHALASWA ME UNKELIYA ACQUIRE KARWAI, ACQUIRE KARWAI, USKELIYA SARI YOGJANA BHEN GHAI, SARA PAISA JAMA HOGAYA JAB IN LOGO KO LENE LEJANE BATH AAI THO IS ZHIMEN PAR STAY AAGAYA, COURT KI THARAJ SAY STAY HO GAYA, HIGH COURT Kl THARAF SAY STAY ORDER HO GAYA USKELIYA 23 SEPT. THARIKH LEGI THAI OR AB 23 OCTOBER THERIKH HAE. AB JIS DIN BHEE COURT KA STY ORDER KATHAM HOGAYA YEA SARA Kl SARI JHUG-GIYAAN YAHAN SAY HATTAKAE BHALASWA MAYE JO Kl YAHAM SAY BHOOTH THODI DOOR HEI 3-4 KILO METER HAE UAS JAGAHAN PHER INKO PLOT DILYANGAE AUR YENKO VAHAN BASAYANGAN ISHKI YOGJANA PAHALE SAY BHEN CHUKKI HAE AUR MERA THO YUEI VADA THA SHALIMAR BAGH KA LOGO KELIYA YAE VADHA BHEE MERA PURA HOGA, GUB THAK MERA YEA VADHA PURA NEHI HOGA, MAE KAHEIN BHE HOON, KESI BHE PAD PAR HOON, YA KISI PAD PHAR NA BHE HOON MERA COMMITMENT LOGO SAY HAE AUR MAE ISH YADA KO PURA AVESH KARUNGA.”

17. We may further notice that the petitioners have, inter alia, contended that the lands in question are situated near the water sports complex and by the side of Butkal lake, where a tourist complex including a five star hotel, Was to be set up.

18. The principal questions which arise for consideration in these writ petitions are:

(i) whether there had been any materials on record to show that the acquiring authority applied his mind for invoking the urgency provision as contained in Section 17 of the Acquisition Act?

(ii) whether, in any event, it was a fit case where the provision under Section 5-A of the Act could be dispensed with?

19. The power of the State to acquire a land in terms of the doctrine of eminent domain is not in dispute. It is also beyond any cavil of doubt that once it is found that proceedings for acquisition of land had ben initiated for a public purpose, the Court will not interfere therewith unless it is inter alia found to-be: (a) without jurisdiction; (b) suffering from vice of non-application of mind; and (c) mala fide.

20. Land acquisition proceedings are expropriatory in nature. It is, therefore, expected that the procedure laid down for invoking the urgency provision shall be strictly complied with, Existence of materials for arriving at a decision that the lands in question are required to be acquired may not appear from the notification itself but once such a contention is raised in a court of law, the State must satisfy it thereabout by placing on records the relevant materials in support thereof.

21. The letter of Shri Manjeet Singh dated 4th July 1998 shall reveal that the acquisition proceeding was initiated at the instance of the Chief Minister for real-location in respect of J.J Cluster Shalimar Bagh, etc. The said reallocation programme consisted of establishment of transit camps for jhuggi jhopri families which were to be shifted from J.J Clusters.

The notings show that in the requisition it had not been stated that possession of lands is required to be obtained on an emergent basis. The said idea appears to be the brain child of the Office Superintendent of the Land Acquisition Department whence for the first time he directed Shri Kwatara to type draft notification under Sections 4, 6 and 17(1) of the Acquisition Act. Even at that point of time there was no material to show that the provision of Section 17(4) of the Act was required to be invoked. File moved through five desks before the afore-mentioned draft notification was added. The proposal for acquisition shows that the lands were required for establishment of transit camp which was not permanent in nature. Despite pointing out that the proposal had not come through DDA nobody appeared to have applied his mind as to why an exception should be made to entertain requisition from an authority other than DDA, particularly when planned development of Delhi is the statutory responsibility of the D.D.A under Delhi Development Act.

We may notice that in a note-sheet dated 25th September 1998 Shri J.K Rawal, Deputy Secretary (L&B) stated that in future all lands including non-planned land would be acquired through DDA. He was not the authority to make an exception to the policy. No reason has been assigned as to why the requisition was not required to be made through DDA contrary to the policy decision adopted in that behalf.

All actions up to the level of Deputy Secretary had been taken on one day, viz., 24th July 1998. The matter was placed before the Lt. Governor and the order as noticed hereinbefore was passed wherefor no reason was assigned to show that there had been an independent application of mind on his part.

22. Section 17(4) of the Land Acquisition Act reads thus:

“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).”

23. The provisions of Section 17 of the Acquisition Act are to be taken recourse to by way of an exception. Section 17 confers special power in case of urgency. The said provision, therefore, can be resorted to only when there exists urgency wherefor special power is required to be invoked. Existence of such urgency must therefore be reflected in the records. Some reasons, if not strong and cogent, must be recorded as to why the special power is required to be invoked. The jurisdiction of the appropriate Government to invoke such powers emanates only from urgency and not otherwise. Existence of ‘urgency’ therefore is the sine-qua-non for invoking the said provision.

24. Sub-sections (1) and (4) of Section 17 of the Acquisition Act, stand on different footings. In terms of sub-section (1) possession of any land needed for a public purpose can be taken over on the expiration of 15 days from the publication of the notification mentioned in Section 9, whereupon lands vests absolutely in the Government; whereas sub-section (4) thereof merely refers to the land, in respect whereof the provision of sub-section (1) is applicable and, in terms thereof, a direction can be issued by the appropriate Government that the provisions of section 5a shall not apply and if it so directs, a declaration may be made under Section 6 at any time after the date of publication of the notification under subsection (1) of Section 4. For the said purpose also the satisfaction of the appropriate Government is prerequisite.

25. A perusal of the Notification dated 30th July 1998 would show that although nothing has been mentioned in the noting that the proceedings under Section 5A be dispensed with, the Lt. Governor in the impugned Notification dated 30th July 1998 expressed his purported satisfaction as regards existence of a situation for invoking sub-section (4) of Section 17 by directing that the provisions of section 5a shall not apply. A declaration under Section 6 as also a notification under Section 17(1) were issued on 4th August 1998. But as indicated herein-before, for the said purpose, there existed no material. The entire action smacks of malice as indecent haste has been shown.

26. In Braj Kishore Singh & Company v. State of Bihar and Others, AIR 1996 Patna 32, the Patna High Court has held:

“This indecent haste on the part of the respondent No. 5 to finalise all the tenders in his residence at late hours on the eve of his departure and addressing a letter from his office before hand to the Chief Engineer informing him of his decision to finalise all the four tenders by giving different reason for awarding all the contracts in favour of the said M/s. North Bihar Construction Corporation does not and cannot indicate that the action of the said respondent No. 5 was fair and above board. The whole transaction reeks, if not with malice in fact but certainly with malice in law. I think that this Court will be failing in its duty if the said action of respondent No. 5 is not condemned in no uncertain terms. This Court, therefore, declares that the respondent No. 5 has failed to maintain purity of administration in the office he holds. Even though the contract in questions has been awarded and executed but the question raised in this petition has not become either state or absolute, namely that in matters of consideration of various offers of the tenderers absolute fairness and impartiality must be maintained. Here there has been a singular failure of the respondent No. 5 on both the counts he has neither been fair nor has been able to show his impartiality.”

27. It is a matter of common experience that setting up of a rehabilitation programme takes a long time. It is not a case where lands are required for rendition of essential service on an urgent basis. Only because, emergency clause exists in the statute book the same would not mean that in all cases the provisions of Section 17 of the Acquisition Act shall be invoked. Such invocation should not be a routine matter. A whim or fancy on the part of an officer cannot be a ground for invocation of sub-section (4) of Section 17. Something more than mere emergency is necessary for taking away a valuable right conferred upon the owners of the land.

28. A Full Bench of this Court in almost identical situation in S.K Gupta v. The Union of India and others, AIR 1977 Delhi 209 held:

“46. True, the planned development of Delhi' is a public purpose, but the phrase is not a synonym for, and does not of itself import, ‘urgency’. For decades the ‘development’ of Delhi has been ‘planned’, and certainly there will be more decades before the process is complete, if, needed, it ever is. Moreover, the ‘purpose’ of acquisition is one thing: ‘urgency’ is another: see Seshagiri Mailer v. Special Tehsildar for Land Acquisition, Kozhikode, AIR 1965 Ker. 92. Acquisition is permitted by Section 4 only for a ‘public purpose’. Every public purpose is not per se urgent. Otherwise, Section 17 would have prescribed a routine procedure and not conferred ‘special powers’ as its side-note proclaims.

48. On receipt of this letter the Land Acquisition Collector was asked ‘to send the draft notification under Sections 4, 6 17 (1)’. In his reply dated 26th Nov. 1971 the Collector separated lands which were waste or arable, to which Section 17(1) and (4) could be applied, from the rest, and submitted two draft notifications.. He said nothing whatsoever about urgency. The,copy of an office note prepared on 1st January 1972 is also attached to the supplementary affidavit. It suggests, in accordance with the Collector's report, that the waste or arable lands ‘be acquired by invoking provisions of Section 17(1) of the Land Acquisition Act whereas the remaining area may be acquired in the normal course’. There was no reference made to any urgency. On 15th Jan. 1972 the Lieutenant-governor put the word ‘approved’ under this note and signed it. Thereafter, the notification impugned were issued.”

29. It is not in dispute that Section 17(1) and Section 17(4) stand on a different footing.

In Om Prakash and Another v. State of U.P and Others, (1998) 6 SCC 1, it has been held that the urgency provisions contained in section 17 being an exception to the general rule, the same indisputably should be invoked only when the exigencies of the situation so demand and not otherwise.

30. It is not and cannot be disputed that in the matter of acquisition of land normal procedure as provided for in the land Acquisition Act should be followed. Exceptions referred to in Section 17, it is trite, should not ordinarily be taken recourse to. Circumstances specifieo therein and conditions precedent laid down therefor must exist for invoking the urgency Clause contained in Section 17 of the Act, particularly, in view of the fact that the said Act is expropriatory in nature.

31. Section 5-A of the Act provides for a principle. An enquiry thereunder has two fold purposes. It intends to instruct the decision making authority as regards need of a particular land for a public purpose as also for safeguarding the said authority against any ill formed action on the part of the requisition authority. The procedural requirement an envisaged under Section 5A of the Act in ordinary situation should strictly be complied with, having regard to the fact that the opinion required to be formed for invoking the urgency clause as also the decision to acquire the lands in question is based on subjective satisfaction. An enquiry in terms of Section 5A of the Act would enable those for whose benefit the same had been enacted which shows how acquisition of the land in question would not sere any public purpose and/or no public purpose at all is involved in the matter. The basic theme therefor is compliance of the principles of natural justice. There cannot be any doubt whatsoever that principles of natural justice in a given situation need not be rigidly applied but sufficient or cogent reasons must exist for not following the same.

32. Furthermore in a given case it may be justifiable to take over possession of the lands in question even without issuing any notification or declaration as envisaged under Section 6 of the Acquisition Act but that by itself may not be a sufficient ground to complete the acquisition proceedings itself by dispensing with the requirements of section 5a of the acquisition act. As envisaged under sub-section (4) of Section 17, each case therefore has to be adjudged on its own merit and no strait jacket formula can be laid down therefor.

33. We have noticed hereinbefore that the requisition had not been made by the DDA despite the fact that the area in question is covered by a master plan as also the zonal development plan. It is also not in dispute that the Regional Plan 2001 for the National Capital Region had also been contemplated having regard to the year 2001 in view. Although in its strict enforcement the said plan may be held to be irrelevant, the master plan as also zonal-development plan cannot be held to be so. Having regard to the provisions of DDA Act, it is beyond any doubt that the procedure required for change in user of the land must strictly be complied with.

34. In M.C Mehta v. Union of India and Others, AIR 1996 SC 2231 the law in this behalf has clearly been laid down.

35. In M.C, Mehta v. Union of India and Ors., JT 1996 (6) SC 129 the Apex Court in no uncertain terms laid down the law that the requirements of master plan and zonal development plan should be strictly complied with having regard to the fact that Delhi is one of the most polluted city in the world.

Yet recently in M.C Mehta v. Union of India and Others, (2001) 4 SCC 577 the same principles were reiterated as regards location of certain industries, which were required to be shifted.

36. The contention of Ms. Luthra to the effect that providing of housing sites for dalit, poor, landless labour, harijan, etc. would itself be a sufficient ground for invoking the urgency Clause must be considered in that perspective. It may be as has been submitted by the learned counsel that the public purpose as stated in the impugned notification by itself do justify invocation of urgency clause but the same must be considered, having regard to the fact that, even if possession is taken, the purpose for which lands are acquired would not be fulfilled. It is one thing to say that the objects under-lined for preparation of master plan and zonal development plan would not vitiate a land acquisition proceeding but it is another thing to say, whether despite a conscious knowledge that the public purpose would not be achieved unless and until the procedure laid down under section 11a of the dda act are complied with as regard change of user, as has been specified in the master plan and the zonal development plan, can it be said that the Administrator was justified in invoking the urgency Clause? Answer to the said question, in our considered view, must be rendered in the negative.

37. The respondents, on the other hand, would contend that urgency for taking possession is such, which would not justify even hearing the persons, who were interested in the lands sought to be acquired in terms of Section 5A of the Acquisition Act, which would take about thirty days' of time. Such a plea cannot be accepted. Apart from the fact that no step has yet been taken for change in user of the lands in question as provided for in the master plan and zonal development plan, in the event, the procedures laid down under section 12 of the dda act are taken recourse to, which is mandatory in nature, some time wold be required therefor and, thus, in our opinion, it does not lie in the mouth of the respondent to contend that there existed emergency. The respondents by raising the said contention has sought to blow hot and cold at the same time. Only because an authority is entitled to exercise its discretion the same never means that such a power can be exercised in an arbitrary and fanciful manner. Discretion, it is trite, does not confer an arbitrary power upon a statutory authority. Discretion has to be exercised fairly, reasonably and equitably. Discretion must also be exercised having regard to the purport and object of the relevant Statute. (See: Chaitnya Charan Das v. State of West Bengal and Others, AIR 1995 Calcutta 336).

38. An action, it is trite, which is used for unauthorized purpose, would amount to malice in law. It may be correct that the Administrator has subjective satisfaction both in relation to the locale of the lands, which would be needed for being used for the public purpose for which the same are being acquired as also the necessity to take possession thereof on an emergency basis but it is also well settled that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India is entitled to consider, as to whether the subjective satisfaction so vested in the authority, was based on objective criteria. The Court can also interfere when such a decision on the part of the authority is found to be suffering from the vice of non-application of mind or unreasonableness.

39. Do the records filed before us justify such an action? Having seen the records we do not think so.

The requisitioning authority do not state that the urgency clause should be invoked for acquiring the land. The requisitioning authority do not state that lands are required for rehabilitation of the inhabitants of the J.J Clusters. The acquisition was necessary for a transit camp. Only one Officer who has no role to play either under a Statute or otherwise cannot take into his head that a notification under Section 17(1) should also be issued. Even at that point of time no material existed. In any event, no material whatsoever was brought on records to show that the provisions of Section 17(4) of the Acquisition Act was necessary to be applied. A decision of a statutory authority must be adjudged on the basis of an order passed under a statute. A statutory order by a statutory authority cannot be permitted to be supplemented by affidavit (see: Commissioner of Police v. Gordhandas Bhanji, AIR (39) 1952 SC 16 and Mohinder Singh Gill and another v. The Chief Election Commissioner and Others, AIR 1978 SC 851).

40. Although a large number of decisions have been cited before us, in our opinion, suffice it to refer the recent two Division Bench decisions of this Court.

In Deepak Bhardwaj & Others. v. Union Of India & Others., 2001 VI AD (Delhi) 597; this Court upon consideration of several decisions most of which have been relied upon by Ms. Luthra, held:

“An inquiry envisaged under section 5A of the Act is a summary inquiry which need not take long. It has been commented upon that such inquiries take long and, therefore, the Government may justifiably dispense with such an inquiry. Here it has to be seen as to who has to hold the inquiry. It is the Collector who has to hold the inquiry and the Collector is the acquiring authority's own man. For delays on the part of the Collector in completing the inquiry should the land owner whose land is sought to be compulsorily acquired suffer and be denied even the basis right of being heard before being condemned. So far as the land owner is concerned he is allowed only thirty days from the date of publication of the notification under section 4 of the Act to file objections. Thereafter whatever delay that follows is on account of the Collector. The acquiring authority cannot make, the land owner suffer by depriving him of his statutory right under section 5A for the delays on the part of the Collectors in completion of inquiry which is envisaged only as a summary inquiry. The State Government must ensure that such inquiries are expeditiously completed. In this connection the following observations of the Supreme Court in State of Punjab v. Gurdial Singh and Others, (1980) 2 SCC 471 are very relevant:

“16. The fourth point above the use of emergency power is well taken. Without referring to the supportive case-law, it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Article 14 (and 19), bruke and enquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power.”

It was further observed:

“Section 17 confers extraordinary power. The statutory power must be exercised subject to the conditions and limitations laid down by the statute. The major conditions is that the Government must be satisfied that there is a situation, grave and sudden, which calls for an immediate action.

19. What is the theory of section 17? The taken of the land has to be satisfied that there is an emergency, an unforeseen combination of circumstances, that calls for immediate action. Unless it is shown that there was an urgency created by a special situation the Government cannot resort to the extra ordinary power conferred by section 17.

21. “Section 17(2) vividly illustrates the principles of the section. “Unforeseen emergency” cannot be anticipated. There is a concurrence of circumstances which no one can foresee. No one can be prepared for sudden happening.”

41. Yet again in Mukesh Hans Etc., Etc v. Union Of India & Others, 2002 1 AD (Delhi) 422, Deepak Bhardwaj's case (supra) was referred to and having regard to the notings in the file it was held that:

“From these notings, it is not possible to hold that the Lt. Governor inde-pendentlyapplied his mind to the question of dispensing with an enquiry 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 enquiry 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 enquiry 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.”

For the reasons afore-mentioned these writ petitions are allowed. The impugned notifications are set aside. Let an appropriate writ issue. However, in the facts and circumstances of the case, there shall be no orders as to costs.

Praveen Jain And Others. v. Union Of India And Others

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (as summarised in the opinion)

Respondents' Arguments (as summarised in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Implications

Praveen Jain And Others. v. Union Of India And Others

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