Supreme Court of India
MAHENDER PAL & OTHERSversusSTATE OF HARYANA & OTHERS
- Citation
- 2009 INSC 822
- Decided
- 15 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
Section 17(4) may be invoked only when a factual emergency exists and the government’s satisfaction is based on objective criteria; otherwise the right to objection and hearing cannot be dispensed with.
Summary
The State of Haryana issued notifications under Section 4 read with Section 17(4) of the Land Acquisition Act, 1894 to acquire land for an outer ring road and green belt, affecting land owned by Mahender Pal and others that contained residential structures, ancestral samadhis and a temple. The petitioners objected and filed a writ petition, which the High Court dismissed. On appeal, the Supreme Court examined whether the emergency powers in Section 17(4) could be invoked for such a public‑purpose acquisition and whether the right to file objections and obtain a hearing could be dispensed with. The Court held that invocation of Section 17(4) requires a foundational factual basis and an objective test; mere assertion of urgency or emergency by the State is insufficient. Consequently, the High Court’s order was set aside and the matter remitted for fresh consideration on its merits, with costs awarded to the petitioners.
Issues considered
- Whether the State can resort to the emergency powers under Section 17(4) of the Land Acquisition Act, 1894 for acquisition of land intended for an outer ring road and green belt.
- Whether the right of the landowner to object and obtain a hearing under Section 5A can be dispensed with when Section 17(4) is invoked.
- What criteria must be satisfied—objective versus subjective—to meet the conditions precedent for invoking Section 17(4).
Legislation cited
- Constitution of Indias. Article 300A
- Land Acquisition Act, 1894s. 17(1), s. 17(2), s. 17(4), s. 4, s. 5A, s. 6, s. 9
Subjects
Land acquisitionEmergency powersSection 17(4)Right to objectionProcedural safeguardsEminent domainPublic purposeRoad developmentExpropriation
Judgment
[2009] 9 S.C.R. 418
A MAHENDER PAL & OTHERS
V.
STATE OF HARYANA & OTHERS
(Civil Appeal No. 36,04 of 2009)
MAY 15, 2009
B
[S.B. SINHA AND ASOK KUMAR GANGULY, JJ,]
La11d Acquisition Act, 1894 - s. 17(4) - Emergency
powers - Invocation of - Scope - Land acquisition for
C development an<J utilization of land for outer ring road, green
belt on both sides - Writ petition challenging the Notifications .
dismissed .,... On appeal held: In such cases, valuable right of
hearing can be taken away only if condition precedent for
emergency power is satisfied - For invoking the said -•
D provision, existence of foundational fact is a sine qua non
for formation of opinion - Subjective satisfaction must be
based on an objective criteria - lpse dixit on the part of the
State would not serve the purpose - Petitioner made out a
case for examination of their cases - Hence, matter remitted
E to High Court for consideration afresh.
The question which arose for consideration in this
appeal was whether for acquisition of land for
development and utilization of land for outer ring road,
green belt on both sides, the State Government could
F have resorted to the emergency powers in terms of s. 17
of the Land Acquisition Act, 1894.
Allowing the appeal and remitting the matter to High
Court, the Court
G
HELD: 1.1. Right to file objection and hearing .thereof
to a notification issued by the appropriate government
expressing its intention to acquire a property is a
valuable right. Such a valuable right of hearing and
H 418
MAHENDER PAL & ORS. v. STATE OF HARYANA & 419
ORS.
particu_larly in a case of this nature could have been taken A
away only if conditions precedent for exercise of this
emergency power stood satisfied. Sub-section (4) of
section 17 of the Land Acquisition Act, 1894 is an
exception to s. 5A. An opinion of the government in this
behalf is required to be formed if there exists an B
emergency. Existence of the foundational fact for
' invoking the said provision is, therefore, a sine qua non
for formation of opinion. Such an subjective satisfaction
must be based on an objective criteria. lpse dixit on the
part of the State would not serve the purpose. Appellants c
made out a case for examination of their cases. The
nature of constructions and other features of the land
sought to be acquired have been noticed. [Para 12] (422-
E-H; 423-A]
.. 1.2. The purported public purpose for which the land D
is to be acquired is for laying down a road. The road
connection is one of the purposes mentioned in sub-
section (2) of section 17 of the Act in respect whereof
sub-section (4) thereof would apply. But the same would
not mean that for the purpose of road connection E
irrespective of the nature of cases and/ or irrespective. of
the nature of the road to be constructed; s.17(4) could be
f
invoked. [Para 13] [423-8-C]
--- 1.3. As an extraordinary power has been conferred F
upon the Appropriate Government in terms whereof the
normal procedure laid down under section 5A of the Act
could be dispensed with, the High Court,· should have
entered into the merit of the matter .. The impugned
judgment cannot be sustained and is set aside. The
G
matter is remitted to the High Court for consideration of
the matter afresh on merit. [Paras 14 and 17] [423-Dt 426-
CJ
Mahadevappa Lachappa Kinagi and Ors. v. State of
Karnataka and Ors. (2008) 12 sec 418, relied on. H
420 SUPREME COURT REPORTS [2009] 9 S.C.R.
A Union of India and Ors. v. Mukesh Hans (2004) 8 SCC
14;Union of India and Ors. v. :Krishan Lal Arneja and Ors.
(2004) 8 sec 453, referred to.
1.4. An exception carved out. from the main provision
as a result whereof a citizen of India may be deprived of
8
his property particularly having regard to the fact that if
it is considered to be a human right, procedural
safeguards laid down therefor must be scrupulously
complied with. It being an expropriatory legislation
C deserves strict constructi9n. [Para 16] [426-A-B]
Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
Chenai and Ors. (2005) 7 SCC 627; Devinder Singh and Ors.
v. State of Punjab and Ors. (2008) 1 SCC 728; City
Montessori School v. State of Uttar Pradesh and Ors. 2009
D (2) SCALE 740, relied on.
Case Law Reference:
(2008) 12 sec 418 Relied on. Para 14
E (2004) 8 sec 14 Referred to. Para 15
(2004) s sec 453 Referred to. Para 15
(2005) 1 sec s21 Relied on. Para 16 .,
(2008) 1 sec 128 Relied on. Para 16
F
2009 (2) SCALE 740 Relied on. Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeql No.
,\
3604 of 2009.
G From the Judgment & Order dated 10.05.2007 of the High',
Court of Punjab & Haryana at Chandigarh in Civil Writ Petition "
No. 7008 of 2007.
R. K. Kapoor, Shweta Kapoor, Harish Chandra Pant,
Gunjan Sinha and Anis Ahmed Khan for the Appellants.
H
MA~'.ENDER PAL & ORS. v. STATE OF HARYANA & 421
ORS.
T.V. George and Shinoj K. Narayanan for the A
Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
8
2. This appeal is directed against a judgment and order
dated 10.05.2007 passed by the High Court of Punjab and-
Haryana at Chandigarh in Civil Writ Petition No. 7008 of 2007. '
3. On or about 6.01.2006, a notification under Section 4 C
read with Section 17(4) of the Land Acquisition Act, 1894 (for.
short "the Acf) was issued for acquisition of the land in question
for an alleged public purpose, viz., for the development and
utilization of land for residential/ commercial purpose. A
.., declaration under Section 6 of the Act was issued;on
9.08.2006. 0
4. A writ petition was filed by the appellants challenging
these notifications which was dismissed as withdrawn with
liberty to file a fresh one on the same cause of action.
E
5. On 14.11.2006, the government issued a notification
under Section 4 read with Section 17(4) of the Act and on
15.11.2006 as also a declaration under Section 6 of the Act,
for acquiring the land for public purpose, viz., tor the
development and utilization of land for outer ring road, green F
belt on both side, Pataudi Road to Jhajjar Road in the area of
village Gokalgarh, District Rewari.
6. Appellants' land was being used for residential purposes
and which also has the Samadhis of the ancestors of the
appellants and a Shiva temple. The revenue records confirm G
the existence of these pucca constructions.
7. On 14.03.2007, notices were issued to the appellants
under Section 9 of the Act. Appellants filed objections thereto
on 29.03.2007. H
422 SUPREME COURT REPORTS [2009) 9 S.C.R.
A 8. A writ petition was filed by the appellants, which was
dismissed in limine by reason of the impugned judgment.
9. Appellants are, thus, before us.
10. The principal question which arises for consideration
B in this appeal is as to whether in the facts and circumstances .
of this case the. emergency powers in terms of Section 17 of t
the Act could have been resorted to by the State.
11. The Act has been enacted for the acquisition of land
c for public purposes and for Companies. Having regard to the
provisions contained in ~~cle 300A of the Constitution of India
as also the provisions of Act, the State in exercise of its power
',.
of 'eminent domain' may deprive a person of his right to a
property only when there exists a public purpose and a
,.
D reasonable amount by way of compensation is offered for
acquisition of his land. The Act fulfills the aforementioned
criteria. It, however, lays down the.details procedures therefor.
It is also of some significance to notice that the Parliament, by
reason of the Act, has imposed further restrictions/ conditions
for acquisition of land for the benefit of the land-owner. ,,_
E
12. Right to file objection and hearing thereof tO a
notification issued by the appropriate government expressing i
its intention to acquire a property is a valuable right. Such a
valuable right of hearing and particularly in a case of this nature
F could have b~en taken away only if conditions precedent for
exercise of this emergency power s.tood satisfied. Sub-section
(4) of Section 17 of the Act is an exception to Section SA of
the Act.
G An opinion of the government in this behalf is required to
be formed if there exists an emergency. Existence of the
foundational fact for invoking the aforementioned provision is,
therefore, a sine qua non for formation of opinion. Such an
.
~
subjective satisfaction must be based on an objective criteria.
lpse dixit on the part of the State would not serve the purpose.
H
MAHENDER PAL & ORS. v. STATE OF HARYANA & 423
' ORS. [S.B. SINHA, J.)
Appellants, in our opinion, had made out a case for A
examination of their cases in details. The nature of
constructions and other features of the land sought to be
acquired have been noticed by us hereinbefore.
' .
13. The purported publfc purpose for which the land is to
8
, be acquired is for laying down a road.
We are not unmindful of the fact that the road connection
is one of the purposes mentioned in Sub-section (2) of Section
17 of the Act in respect whereof Sub-section (4) thereof would
apply. But the same would not mean that for the purpose of road C
connection irrespective of the nature of cases and/ or
irrespective of the nature of the road to be constructed; Sub-
section (4) of Section 17 of the Act could be invoked.
14. As an extraordinary power has been.conferred upon 0
the Appropriate Government in terms whereof the normal
procedure laid down under Section 5A of the Act could be
dispensed with, the High Court, in our opinion, should have
entered into the merit of the matter. [See Mahadevappa
Lachappa Kinagi and Others v. State of Kamataka and Others E
(2ooa) 12 sec _4181
In Union of India and Others\. Mukesh Hans [(2004) 8
SCC 14], this Court held:
"32. A careful perusal of this provision which is an F
exception to the normal mode of acquisition contemplated
under the Act shows that mere existence of urgency or
unforeseen emergency though is a condition precedent for
invoking Section 17(4), that by itself is not sufficient to direct
the dispensation of the Section 5-A inquiry. It requires an G
opinion to be formed by the Government concerned that
along with the existence of such urgency or unforeseen
emergency there is also a need for dispensing with Section
5-A inquiry which indicates that the legislature intended the
appropriate Government to· apply its mind before H
424 SUPREME COURT REPORTS [2009] 9 S.C.R.
,
A dispensing with Section 5-A inquiry. It also indicates that
mere existence of an urgency under Section 17(1) or
_unforeseen emergency under Section 17(2) would not by
itself be sufficient for dispensing with Section 5-A inquiry.
If that was not-the intention of the legislature then the latter
B part of sub-section (4) of Sectio·n 17 would not have been
necessary and the legislature in Sections 17(1) and (2)
t •
itself could have incorporated that in such situation .of
existence of urgency or unforeseen emergency
automatically Section 5-A inquiry will be dispensed with.
c But then that is not the language of the section which in
our opinion requires the appropriat~ Government to further
consider the need for dispensing with Section 5-Ainquiry
in spite of the existence of, unforeseen emergency. This
understanding of ours ·as to the requirement of an
application of mind by the appropriate Governfllent while r-
D
dispensing with Section 5-A inquiry does not mean that in
each and every case when there is an urgency
contemplated under Section 17(1) and unforeseen
. emergency contemplated under Section 17(2) exists that
by itself would not contain the need for. dispensing with
E Section 5-A inquiry. It is possible in a given case the
urgency n.otic.ed by the appropriate Government under
Section 17(1) or the unfofeseen emergency under Section i
17(2) itself may be of such degree that it could require the
appropriate Government on that very basis to dispense
F with the inquiry under Section 5-A but then there is a need
for application of mind by the appropriate Government that
such ·an urgency for dispensation of the Section 5-A
inquiry is inherent in the two types of urgencies
r
contemplated under Sections 17(1) and (2) of the Act."
G
15. In Union of India and Others v. Krishan Lal Ameja and
Others [(2004) 8 SCC 453], this Court held:
"16. Section 17 confers extraordinary powers on the
authorities under which it can dispense with the normal
H
MAHENDER PAL & ORS. v. STATE OF HARYANA & 42S
ORS. [S.S. SINHA, J.]
procedure laid down under Section SA of the Act in A
exceptional case of urgency. Such powers cannot be light!y
resorted to except in case of real urgency enabling the
Government to take immediate possession of the land
proposed to be acquired for public purpose. A public
purpose, however, laudable it may be, by itself is not B
sufficient to take aid of Section 17 to use this extraordinary
" power as use of such power deprives a land owner of his
right in relation to immoveable property to file obje~tions
for the proposed acquisition and it also dispenses with the
inquiry under Section SA of the Act. The Authority must c
have subjective satisfaction of the need for invoking
urgency clause under Section 17 keeping in mind the
nature of the public purpose, real urgency that the situation
demands and the time factor i.e. whether taking
possession of the property can wait for a minimum period D
within which the objections could be received from the land
owners and the inquiry under Section SA of the Act could
- be completed. In other words, if power under Section 17
is not exercised, the very purpose for which the land is
being acquired urgently would be frustrated or defeated.
E
I,.. Normally urgency to acquire a land for public purpose does
not arise suddenly or overnight but sometimes such
t- urgency may arise 1unexpectedly, exceptionally or
extraordinarily depending on situations such as due to
earthquake, flood or some specific time-bound project
where the delay is likely to render the purpose nugatory F
or infructuous. A citizen's property can be acquired in
accordance with law but in the absence of real and genuine
urgency, it may not be appropriate to deprive an aggrieved
party of a fair and just opportunity of putting forth its
objections for due consideration of the acquiring authority. G
While applying the urgency clause, the State should indeed
act with due care and responsibility. Invoking urgency
clause cannot be a substitute or support for the laxity,
lethargy or lack of care on the part of the State
Administration." H
426 SUPREME COURT REPORTS [2009] 9 S.C.R.
A 16. It is a well-settled principle of law that an exception
carved out from the main provision as a result whereof a citizen
of India may be deprived of his property particularly having
regard to the fact that if it is considered to be a human right,
procedural safeguards laid down therefor must be scrupulously
B complied with. It being an expropriatory legislation deserites
strict construction. {See Hindustan Petroleum Corpn. Ltd. v.
.,-
Darius Shapur Chenai and Others [(2005) 7 SCC 627];
Devinder Singh and Others v. State of Punjab and Others
[(2008) 1 SCC 728]; and City Montes_sori School v. State of
c Uttar Pradesh & Ors. [2009 (2) SCALE 740]}.
17. For the reasons aforementioned, the impugned
judgment.cannot be sustained which is set aside accordingly
and the matter is remitted to the High Court for consideration
of the matter afresh on merit.
D r
18. Mr. T.V. George, learned counsel appearing on behalf
of the State, submits that counter-affidavit before the High Court
shall be filed within four weeks. The State may also produce
the records before the High Court so as to enable it to arrive
E at a satisfaction that, in the facts and circumstances of this · ~
case, the emergency power of the appropriate government
could be resorted to. We request the High Court to consider _.
the desirability of disposing of the matter expeditiously.
19. The appeal is allowed with the aforementioned
F directions with costs. Counsel's fee assessed at
Rs.10,000/-.
N.J. Appeal allowed.
)
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