Supreme Court of India
RAM DHARI JINDAL MEMORIAL TRUSTversusUNION OF INDIA AND OTHERS
- Citation
- 2012 INSC 141
- Decided
- 21 March 2012
- Disposal
- Appeal(s) allowed
- Bench
- RAJENDRA MAL LODHA
Holding
The Court held that the government failed to justify the use of the urgency power under Section 17(1) and (4), rendering the notification and acquisition declaration void.
Summary
The Delhi Government issued a notification under the Land Acquisition Act, 1894 to acquire land for the Rohini Residential Scheme, invoking the urgency provisions of Section 17(1) and 17(4) and directing that the objection provisions of Section 5A would not apply. The landowner, Ram Dhari Jindal Memorial Trust, challenged the acquisition, arguing that the Lt. Governor had not applied his mind to justify dispensing with Section 5A and that the claimed urgency was not exceptional. The Delhi High Court dismissed the challenge. The Supreme Court held that the power of urgency cannot be exercised routinely for a residential scheme; the government bears the burden of proving that the urgency is of a nature that necessitates dispensing with the Section 5A enquiry, and it failed to do so. Consequently, the notification and the acquisition declaration were quashed, and the competent authority was directed to invite objections under Section 5A.
Issues considered
- The validity of invoking Section 17(1) and 17(4) of the Land Acquisition Act to dispense with the provisions of Section 5A in the Rohini Residential Scheme.
- Whether the government satisfied the burden of proving that the urgency was exceptional and justified.
- Whether the Lt. Governor applied his mind to the necessity of dispensing with the Section 5A enquiry.
Legislation cited
- Land Acquisition Act, 1894s. 17(1), s. 17(4), s. 4, s. 5A, s. 6
Subjects
Land acquisitionSection 17 urgencySection 5A objectionCompulsory acquisitionStatutory interpretationBurden of proofAdministrative lawNatural justice
Judgment
[2012] 2 S.C.R. 525
RAM DHARI JINDAL MEMORIAL TRUST A
v.
UNION OF INDIA AND OTHERS
(CIVIL APPEAL No. 3813 of 2007)
MARCH 21, 2012
B
[R.M. LODHA AND H.L. GOKHALE, JJ.)
LAND ACQUISITION ACT, 1894:
ss.17(1), 17(4), SA - Invocation of power of urgency and c
elimination of enquiry uls.5-A - Permissibility - Held: If the
government seeks to invoke its power of urgency, it has to first
form the opinion that the land for the stated public purpose is
urgently needed - However, use of power of urgency u/s. 17(1)
and (4) of the Act ipso facto does not result in elimination of D
enquiry uls. SA and, therefore, if the government intends l
to
eliminate enquiry, then it has to apply its mind on the aspect
that urgency is of such nature that necessitates elimination
of such enquiry - Use of the power of urgency and
dispensation of enquiry by the Government in a routine E
manner for the "planned development of city" or
"development of residential area" and thereby depriving the
owner or person interested of a very valuable right u/s.5-A may
not meet the statutory test nor could be readily sustained -
Ordinarily, therefore, invocation of urgency power by the
government for a Residential Scheme that does not fall in F
exceptional category cannot be held to he legally sustainable
- In the instant case, competent authority miserably failed to
show that the stated purpose 'Rohini Residential Scheme'
could not have brooked the delay of few months and the
conclusion of the enquiry uls. SA of the Act would have G
frustrated the said public purpose - In view of that s. 4 and s. 6
Notifications quashed - Competent authority to invite.
objections uls.5-A of the Act.
525 H
526 SUPREME COURT REPORTS [2012] 2 S.C.R.
A ss.17(1), 17(4), 5A - Burden to prove that use of power
of urgency was justified - Held: Lies on the government -
Where the government invokes urgency power uls.17(1) and
(4) for the public purpose like 'planned development of city'
or 'development of residential area' or 'Residential Scheme',
B the initial presumption in favour of the government does not
arise and the burden lies on the government to prove that the
use of power was justified and dispensation of enquiry was
necessary.
Due to acute shortage of houses in the city of Delhi,
C the Delhi Government formulated the plan for
development. A Notification under Section 4(1) of the
Land Acquisition Act, 1894 was issued indicating that
land stated therein was likely to be required by the Delhi
Government for the public purpose namely Rohini
D Residential Scheme, Delhi. In the said Notification, it was
mentioned that Lt. Governor, Delhi was satisfied that
provisions of sub-section (1) of Section 17 of the Act were
applicable to the land mentioned in the Notification" and
under sub-section (4) of Section 17 has directed that all
E the provisions of Section SA of the Act would not apply.
On April 3, 2000, a declaration was made by the
Government of Delhi under Section 6 of the Act stating
that the land mentioned therein was acquired for the
public purpose namely Rohini Residential Scheme. The
F appellant-owner of the land under acquisition challenged
the acquisition notifications on the ground that Lt.
Governor did not apply his mind for dispensation of the
enquiry under Section 5A of the Act and that resort to the
urgency provisions contained in Section 17 of the Act
G was unwarranted and unjustified. The High Court
dismissed the writ petitions. The instant appeal was filed
challenging the order of the High Court. 0
Allowing the appeal, the Court
H
RAM DHAR! JINDAL MEMORIAL TRUST v. UNION 527
OF INDIA
HELD: 1. If the government seeks to invoke its power A
of urgency, it has to first form the opinion that the land
for the stated public purpose is urgently needed. Such
opinion has to be founded on the need for immediate
possession of the land for carrying out the purpose for
which land is sought to be compulsorily acquired. The B
use of power of urgency under Section 17(1) and (4) of
the Land Acquisition Act, 1894 ipso facto does not result
in elimination of enquiry under Section SA and, therefore,
if the government intends to eliminate enquiry, then it has
to apply its mind on the aspect that urgency is of such c
nature that necessitates elimination of such enquiry. The
satisfaction of the government on twin aspects viz; (i)
need for immediate possession of the land for carrying
out the stated purpose and (ii) urgency is such that
necessitates dispensation of enquiry is a must and 0
permits no departure for a valid exercise of power under
Section 17(1) and (4). Use of the power of urgency and
dispensation of enquiry under Section SA of the Act by
the Government in a routine manner for the "planned
development of city" or "development of residential area" E
and thereby depriving the owner or person interested of
a very valuable right under Section S-A may not meet the
statutory test nor could be readily sustained. Ordinarily,
therefore, invocation of urgency power by the
government for a Residential Scheme - that does not fall
in exceptional category cannot be held to be legally F
sustainable. The exercise of power by the Lt. Governor,
Delhi under Section 17(1) and (4) has to be held bad· in
law. There was no other material available on record to
indicate that there was application of mind by the Lt.
Governor, Delhi on the aspect that urgency was of such G
nature that necessitated dispensation of enquiry under
Section SA of the Act. The respondents miserably failed
to show that the stated purpose 'Rohini Residential
Scheme' could not have brooked the delay of few
months and the conclusion of the enquiry under Section· H
528 SUPREME COURT REPORTS [2012] 2 S.C.R.
· A SA of the Act would have frustrated the said public
purpose. [Paras 18-19) [S43-F-H; 544-A-G]
Anand Singh and another vs. State of Uttar Pradesh and
others (2010) 11 SCC 242: 2010 (9) SCR 133 - relied on.
B 2. Where the government invokes urgency power
under Section 17(1) and (4) for the public purpose like
'planned development of city' or 'development of
residential area' or 'Residential Scheme', the initial
presumption in favour of the government does not arise
·C and the burden lies on the government to prove that the
use of power was justified and dispensation of enquiry
was necessary. In the instant case, the respondents.
miserably failed to show to the satisfaction of the _Court
that power of urgency and dispensation of enquiry under
.D Section SA has been exercised with justification. The
action of the Lt. Governor, Delhi, in the facts of the case
whereby he directed that the provisions of Section SA
shall not apply, if allowed to stand, it would amount to
depriving a person of his property without authority of
E law. The, power of urgency by the Government u·nder
Section 17 for a public purpose like Residential Scheme
cannot be invoked as a rule but has to be by way of
exception. No material was available on record. that
justified dispensation of enquiry under Section SA of the
F Act. The High Court was clearly wrong in holding that
there was sufficient urgency in invoking the provisions
of Section 17 of the Act. The Section 4 and Section 6
Notification are quashed. The Competent Authority may
invite objections under Section SA of the Act pursuant to
G the Section 4 Notification and proceed with the matter in
accord~nce with law. [paras 20-21) [544-H; 54S-A-D]
·Nandeshwar Prasad vs. The State of U.P. (1964) 3 SCR
425; Sarju Prasad Sinha vs. The State of U.P. AIR 1965 SC
1783; Union of India vs. Mukesh Hans (2004) 8 SCC 14;
H
RAM DHARI JINDAL MEMORIAL TRUST v. UNION 529
OF INDIA
Munshi Singh and others Vs. Union of India (1973) 2 SCC A
337: 1973 (1) SCR 973; Union of India vs. Krishan Lal Arneja
AIR 2004 SC 3582: 2004 (1) Suppl. SCR 801; Sri Ballabh
Marbles vs. Union of India 117 {2005) DLT 387; Vasant Kunj "
Enclave Housing Welfare Society vs. Union of India 2006 (89)
DRJ 406; Raja Anand Brahma Shah vs. State of U.P.(1967) B
1 SCR 373; Jage Ram vs. State of Haryana (1971) 1 SCC
671 ; Narayan Govind Gavate vs. State of Maharashtra (1977)
1 SCC 133: 1977 (1) SCR 763; State of Punjab vs. Gurdial
Singh (1980) 2 SCC 471 1980 (1) SCR 1071:; Deepak
Pahwa vs. Lt. Governor of Delhi (1984) 4 SCC 308: 1985 (1) C
SCR 588; State of U.P. vs. Pista Devi (1986) 4 SCC 251:
1986 (3) SCR 743; Rajasthan Housing Board vs. Shri Kishan
(1993) 2 SCC 84: 1993 (1) SCR 269; Chameli Singh s. State
of U.P. (1996) 2 SCC 549: 1995 (6) Suppl. SCR 827; Meerut
Development Authority vs Satbir Singh (1996) 11 SCC 462:
D.
1996 (6) Suppl. SCR 529; Om Prakash vs. State of U.P.
(1998) 6 SCC 1:·1998 (3) SCR 643; Hindustan Petroleum
Corpn. Ltd. vs. Darius Shapur Chenai (2005) 7 SCC 627:
2005 (3) Suppl. SCR 388; Mahadevappa Lachappa Kinagi
vs. State of Kamataka (2008) 12 SCC 418; Babu Ram vs.
Statte of Haryana (2009) 10 SCC 115: 2009 (14) SCR 1111; E
Tika Ram vs. State of U.P. (2009) 10 SCC 689: 2009 (14)
SCR 905 - referred to.
Case Law Reference:
F
(1964) 3 SCR 425 referred to Para 11
AIR 1965 SC 1783 referred to Para 11
(2004) a sec 14 referred to Para 11, 17
1973 (1) SCR 973 referred to Para 11 G
2004 (1) Suppl. SCR 801 referred to Para 11
117 (2005) DLT 387 referred to Para 12
2006 (89) DRJ 406 referred to Para 12 H
530 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 2010 (9) SCR 133 relied on Para 17
(1967) 1 SCR 373 referred to Para 17
(1971) 1 sec 671 referred to Para 17
1977 (1) SCR 763 referred to Para 17
B
1980 (1) SCR 1071 referred to Para 17
1985 (1) SCR 588 referred to Para 17
1986 (3) SCR 743 referred to Para 17
c
1993 (1) SCR 269 referred to Para 17
1995 (6) Suppl. SCR 827 referred to Para 17
1996 (6) Suppl. SCR 529 referred to Para 17
D 1998 (3) SCR 643 referred to Para 17
2005 (3) Suppl. SCR 388 referred to Para 17
(2008) 12 sec 418 referred to Para 17
E . 2009 (14) SCR 1111 referred to Para 17
2009 (14) SCR 905 referred to Para 17
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3813 of 2007.
F
From the Judgment & Order dated 09.07.2007 of the High
Court of Delhi at New Delhi in CM No. 10476 of 2007 in W.P.
(C) No. 5821 of 2000.
Dhruv Mehta, Aruneshwar Gupta, Manish Raghav, Nikhil
G Singh, Shri Ram Krishna for the Appellant.
A. Sharan, Vishnu B. Saharya (for Saharya & Co.)
Rachana Srivastava for the Respondents.
The Judgment of the Court was delivered by
H
RAM DHARI JINDAL MEMORIAL TRUST v. UNION OF 531
INDIA
R.M. LODHA, J. 1. The judgment of the Delhi High Court A
dated July 9, 2007 is impugned in this appeal.
2. It is the case of the respondents that there was
requirement of houses for nearly 8 lakh persons within the reach
of common man in Delhi. To meet the shortage of housing 8
accommodation, the Delhi Development Authority (DOA)
sought requisition of the land for its scheme known as "Rohini
Residential Scheme" (hereinafter referred to as "the Scheme").
The said Scheme was initially planned in three phases - Phases
I, II, and Ill. The three phases in the Scheme were developed. C
Even then, the acute shortage of houses in the city of Delhi
continued. Accordingly, the plan for development of Rohini
Phases IV and V was formulated.
3. On the requisition of the DOA, on October 27, 1999, a
Notification under Section 4(1) of the Land Acquisition Act, D
1894 (for short "the Act") was issued indicating that land stated
therein was likely to be required by the Government of Delhi
for the public purpose namely; Rohini Residential Scheme,
Delhi. In the said Notification, it was also mentioned that Lt.
Governor, Delhi was satisfied that provisions of sub-section (1) E
of Section 17 of the Act were applicable to the land mentioned
in the Notification and he was pleased under sub-section (4)
of Section 17 to direct that all the provisions of Section SA of
the Act would not apply. ·
4. On April 3, 2000, a declaration was made by the F
Government of Delhi under Section 6 of the Act stating that the
land mentioned therein was acquired for the public purpose
namely; Rohini Residential Scheme.
5. Another notification of the same date was issued under G
Section 7 of the Act directing the Land Acquisition Collector,
Narela to take orders for acquisition of the said land and take
possession of the land mentioned therein.
6. The appellant in the present appeal claims to be the H
S32 SUPREME COURT REPORTS [2012] 2 S.C.R.
A owner of the land ad-measuring 14 Bighas 18 Biswas in Khasra
Nos. 22 and 39 of Village Shahbad-Daulatpur after the said
land came to be donated to it by the erstwhile owners. The
appellant further claims that a school has been set up on the
above land which imparts education to a large number of
B students. The appellant challenged the acquisition of the above
land which forms part of the above notifications before the Delhi
High Court. Large number of other Writ Petitions also came to
be filed before the High Court challenging the above
notifications.
c 7. Before the High Court, diverse grounds in challenging
the acquisition of the subject land were set up; two of such
grounds being that Lt. Governor has not applied his mind for
dispensation of the enquiry under Section SA of the Act and
that resort to the urgency provisions contained in Section 17
D of the Act was unwarranted and unjustified.
8. The respondents contested the group of Writ Petitions
and justified their action including invocation of urgency clause
and dispensation of the enquiry under Section SA of the Act.
E
9. The Division Bench of the High Court, on hearing the
parties, was not persuaded by the contentions of the appellant
and the other writ petitioners which formed part of the group
matters and dismissed the Writ Petitions being devoid of merit
F on July 9, 2007. It is from this judgment that the present appeal
has arisen.
10. The High Court in the impugned judgment noticed the
contentions of the Writ Petitioners in paragraph 2 as follows:
G "The contention of the petitioners is that the Lt. Governor
had not specifically authorised invocation of Section 17(4)
of the stridently Land Acquisition Act and that this is all the
more significant since the draft of the Notification placed
before him adverts to Section 17(4). According to the
petitioners, the only inference that can be drawn is that the
H
RAM DHARI JINDAL MEMORIAL TRUST v. UNION OF 533
INDIA [R.M. LODHA, J.]
Lt. Governor did not approve of dispensing with the A
petitioners valuable rights to object to the acquisition. The
further contention is that since the petitioners have not
been permitted to avail of their rights to file objections
under Section 5A and have not been given an opportunity
of being heard the entire acquisition should be struck B
down. It has also been argued on behalf of the petitioners
that even assuming that Section 17(4) need not in terms
have to be mentioned by the Lt. Governor while granting
his approval to the Scheme ahd that reference only to
Section 17(1) would suffice, the Lt. Governor has not c
properly exercised his mind in approving the waiver and
withdrawal of the petitioners valuable right under section
5A of the Act. In other words, it is their stance that resort
to the emergency provisions contained in Section 17 of the
Act were unwarranted and unjustified in the facts of the 0
-present case."
11. The High Court noted the statutory provisions contained
in Sections 4,5A,6,8,9,11,16 & 17 of the Act and referred to
the decisions of this Court relating to the interpretation of
Section 17 of the Act in the cases namely; Nandeshwar Prasad E
vs. The State of U.P. 1 ; Sarju Prasad Sinha vs. The State of
U.P. 2 ; Union of India vs. Mukesh Hans3 ; Munshi Singh and
others Vs. Union of lndia 4 ; Union of India vs. Krishan Lal
Ameja5• With regard to decisions of this Court in Nandeshwar
Prasad 1, Krishan Lal Arneja 5 and Mukesh Hans3 , the High F
Court, observed as follows:
'We have carefully perused the judgments in Nandeshwar
Prasad, Krishan Lal Arneja and Mukesh Hans and in order
to ascertain whether it had been argued that a separate G
1. (1964) 3 SCR 425 .
. 2. AIR 1965 SC 1783.
3. (2004) 8 sec 14.
4. (1973) 2 sec 337.
5. AIR 2004 SC 3582. H
534 SUPREME COURT REPORTS [2012] 2 S.C.R.
A decision must be taken under Section 17(1) or (2) on the
one hand and Section 17(4) on the other; or that even if
Section 17(1) or 17(2) are resorted to objections under
Section 5A must be invited and decided before an
acquisition can be completed. Our research is that these
B contentions had not been raised. Therefore, the dictum in
Quinn assumes great significance. We will nonetheless
give due deference to all the observations made by the
Apex Court, even though we find from the pleadings before
us, that grounds predicated on the above arguments have
c not been articulated in the petitions. Indubitably, these are
legal contentions and we would be loath to ignore them
solely for the reason that they have not been pleaded. But
this state of affairs has obviously been occasioned
because of the views ventilated in Mukesh Hans."
D 12. The High Court then considered the three decisions
of that Court in Sri Ballabh Marbles vs. Union of lndia 6 ;
Chaman Lal Malhotra vs. Union of India, W.P. (C) 4002 of
1997 decided on August 8, 2005 and Vasant Kunj Enclave
Housing Welfare Society vs. Union of lndia7 and observed that
E they were not persuaded to follow the line of reasoning in the
above three cases relied upon by the Writ Petitioners.
13. The High Court also considered the Act XXXVlll of
1923 whereby the Act came to be amended. The High Court
F indicated its opinion in the following words:
"In our considered opinion Section 17(4) is not a
fasciculous of the Act, a sub-pandect or a self-contained
code having its own realm of operation. Its sole purpose
is to clarify that Sections 17(1) and (2) continue to operate
G as they did prior to 1923. If Section 17(4) is to function in
its own field, the factual matrix attending thereto should be
spelt out on the lines delineated in its preceding sub-
sections (1) and (2). On a careful perusal of the provision
6. 117 (2005) DLT 387.
H 7. 2006 (89) DRJ 406.
RAM DHARI JINDAL MEMORIAL TRUST v. UNION 535
OF INDIA [R.M. LODHA, J.]
of Section 17(4) it will be evident that it contemplates the A
formation of an opinion by the Government as to existence
of the fact situation postulated either by Section 17 (1 ),
thereby enabling possession to be taken over after fifteen
days, or under Section 17(2) empowering the taking of
similar action after only two days. Originally, nl3ither of B
these provisions had Section SA within their respective
sights. Sections 17(1) and (2) predated the introduction of
the rights of landowners/occupiers to object to the
acquisition of their lands. Furthermore, we think it
hallucinatory to visualize the taking over of possession in c
less than two days. We have not come across a case
where a citizen is dispossessed instantaneously with the
taking of a decision to acquire his land. If this is the
practical reality, we are unable to conceive of a situation
of such urgency as would justify or necessitate the
0
formation of an opinion in respect of a decision to be taken
other than in the factual matrix disclosed in sub-section (1)
or sub-section (2) of Section 17 (i.e. signing and executing
virtually instantly) reference to which would not have been
necessary if there were other and even more extreme
E
situations (in practical terms unthinkable to us), envisaged
by sub-section (4) alone. This is why we have said that
Section 17(4) is not a self-contained sub code; if
theoretically there is urgency which does not brook even
a delay of forty-eight hours, it should have been articulated
in painstakingly minute detail, so that its abuse is F
safeguarded against. It is equally unrealistic to expect that
objections, which are normally numerous, can be decided
in two days or even in fifteen days. The original intendment
of Section 17 of the Act was merely clarified in Section
17(4) to continue even after the introduction of Section SA, G
viz that in emergent situations acquisition proceedings
could be concluded virtually instantly."
14. The High Court, thereafter again considered few
decisions of this Court and held as under: H
536 SUPREME COURT REPORTS [2012] 2 S.CR.
A "The conclusion that we have arrived at as a result of the
above discussion is that Section 17, as a composite
whole, is a pandect within the Land Acquisition Act, in
much the same manner in which Section 258 of the Delhi
Rent Control Act has been viewed by the Hon'ble
B Supreme Court. Section 17 deals with the entire spectrum
of emergencies which call for urgent action leading to
expropriation of private property. It empowers the State to
take possession of lands required for public purposes in
two categories of contingencies - (a) in urgent
c circumstances as adumbrated in the first sub-section
enabling dispossession after fifteen days and (b) situations
specifically spelt out in the second sub-section
empowering immediate dispossession, i.e. after two days.
These provisions were available to the State from the very
inception of the Act, and had the result of permitting the
D
Government to take possession along with the publishing
of a notification under. Section 4, leaving the matter of
computing and tendering compensation to follow. The
introduction in 1923 of the right to file objections under
Section SA within thirty days of the Section 4 Notification
E required necessary clarification that where circumstances
obtain necessitating urgent action, it could be taken. This
was clarified by the simultaneous inclusion of Section 17(4),
which notably does not have its own field of operation,
distinct of sub-sections (1) and (2). Therefore, once the
F Government is subjectively satisfied that circumstances
chronicled in the first two sub-sections exist, the effect is
the suspension of the right to file Objections under Section
SA. In the present case Section 17(1) has been resorted
to, it would not be open to the Authorities to take
G possession of the property till the expiration of fifteen days
from the publication of the Notification. We have come to
this conclusion respectfully and hum~ly mindful of
observations made by their Lordships in Nandeshwar
Prasad, Krishan Lal Arneja and Mukesh Hans, in which ·
H cases the argument that separate orders under Section
RAM DHARI JINDAL MEMORIAL TRUST v. UNION OF 537
INDIA [R.M. LODHA, J.]
17(4) are essential, were not raised. A
Proceeding on the basis that no legal impropriety or
infirmity has been committed in failing to make a mention
of Section 17(4) of the Act, the controversy is still not set
at rest. This is because it is axiomatic and B
uncontrovertable that the Lt. Governor must, on the basis
of material available in the records placed before him,
arrive at a soundly considered and informed decision that
such grave urgency exists as justifies overriding the basic
rights of_ the land owners, which partake the character of
fundamental rights. In State of Punjab -vs- Gurdiaf Singh, C
Al R 1980 SC 319 it has been observed that - "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 D
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 & 19 of the E
Constitution of India, brook an inquiry 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 powers." It is also trite that
the attitude of the Administration should be neither cavalier F
nor casual (Dora Pha/auli -vs- State of Punjab, (1979) 4
SCC 48S). While we prefer not to get bogged down by the
semantics and syntax of Section 17, we are unwilling to
dilute the stringent rigours which must be satisfied before
the circumvention of Section SA passes judicial muster." G
1S. While dealing with the question whether the decision
of the Lt. Governor to dispense with Section SA of the Act was
properly taken or not, the Division Bench observed thus:
H
538 SUPREME COURT REPORTS [2012] 2 S.C.R.
A "It cannot possibly be over-emphasized that such a
decision must be taken with due caution with even greater
care than while deciding objections under Section 5A.
Judicial review of such decisions would entail a jural
investigation as to whether there was adequate material
B before the Authority concerned and whether the outcome
was predicated on cogitation centered on such material.
Courts will be loathe to substitute the subjective
satisfaction of the authority with their own. Before Section
5A objections are disposed of, the objectors must be
c given an opportunity of being heard. In the present case it
is palpably clear that the Lt. Governor had looked into the
ambit of Section 17(1) of the Act, and finding that the
circumstances postulated therein exist, had approved of
the draft notification which clarified that the provisions of
Section SA would not apply. We do not need to locate a
D
reasoned order so long as the impugned administrative
decision appears to have been taken on the basis of the I
material available on the record." ·
16. The High Court considered few other decisions of this
E Court and ultimately held as follows:
"We find that there was abundant material available for
forming a subjective opinion that public purpose would be
sub served through the acquisition and that there was
F sufficient urgency in invoking the provisions of Section 17
valuable but not unalienable of the Act fully mindful that the
consequence was the deprivation of the rights of persons
having an interest in the land of filing Objections under
Section 5A of the Act."
G 17. In a recent decision of this Court in Anand Singh and
another vs. State of Uttar Pradesh and others8, this court
considered elaborately the power of urgency conferred upon
the Government under Section 17 of the Act, its invocation and
H a. (2010) 11 sec 242.
RAM DHARI JINDAL MEMORIAL TRUST v. UNION 539
OF INDIA [R.M. LODHA, J.]
dispensation of enquiry under Section SA of the Act. This Court A
speaking through one of us (R.M. Lodha,J.) in Anand Singh 8
considered the previous decisions of this Court in Raja Anand
Brahma Shah vs. State of U.P. 9 ; Jage Ram vs. State of
Haryana 10 ; Narayan Govind Gavate vs. State of
Maharashtra 11 ; State of Punjab vs. Gurdial Singh 12 ; Deepak B
Pahwa vs. Lt. Governor of Delhi13 ; State of U.P. vs. Pista
Dev114 ; Rajasthan Housing Board vs. Shri Kishan 15 ; Chameli
Singh s. State of U.P. 16 ; Meerut Development Authority vs
Satbir Singh 17 ; Om Prakash vs. State of U.P. 18 ; Union of India
vs. Mukesh Hans3 ; Hindustan Petroleum Corpn. Ltd. vs. c
Darius Shapur ChenaP 9 ; Mahadevappa Lachappa Kinagi vs.
State of Kamataka 20 ; Babu Ram vs. Statte of Haryana 21 and
Tika Ram vs. State of U.P. 22 and culled out the legal position
as follows:
"When the Government proceeds for compulsory D
acquisition of a particular property for public purpose, the
only right that the owner or the person interested in the
property has, is to submit his objections within the
prescribed time under Section 5-A of the Act and persuade
the State authorities to drop the acquisition of that particular E
9. (1967) 1 SCR 373.
10. (1971) 1 sec 671.
11. (1977) 1 sec 133.
12. (1980) 2 sec 471.
F
13. (1984) 4 sec 308.
14. (1986) 4 sec 251.
15. (1993) sec 84.
16. (1996) 2 sec 549.
11. (1996) 11 sec 462. G
1s. (1998) 6 sec 1.
19. (2005) 7 sec 627.
20. (2008) 12 sec 418.
21. (2009) 10 sec 115.
22. (2009) 10 sec 689. H
540 SUPREME COURT REPORTS [2012] 2 S.C.R.
A land by setting forth the reasons such as the unsuitability
of the land for the stated public purpose; the grave
hardship that may be caused to him by such expropriation,
availability of alternative land for achieving public purpose
etc. Moreover, the right conferred on the owner or person
B interested to file objections to the proposed acquisition is
,, not only an important and valuable right but also makes the
provision for compulsory acquisition just and in conformity
with the fundamental principles of natural justice.
The exceptional and extraordinary power of doing away
c with an enquiry under Section 5-A in a case where
possession of the land is required urgently or in an
unforeseen emergency is provided in Section 17 of the Act.
Such power is not a routine power and save
circumstances warranting immediate possession it should
D not be lightly invoked. The guideline is inbuilt in Section
17 itself for exercise of the exceptional power in
dispensing with enquiry under Section 5-A. Exceptional the
power, the more circumspect the Government must be in
its exercise. The Government obviously, therefore, has to
E apply its mind before it dispenses with enquiry under
Section 5-A on the aspect whether the urgency is of such
a nature that justifies elimination of summary enquiry under
Section 5-A. ·
F A repetition of the statutory phrase in the notification that
the State Government is satisfied that the land specified
in the notification is urgently needed and the provision
contained in Section 5-A shall not apply, though may
initially raise a presumption in favour of the Government
that prerequisite conditions for exercise of such power
G
have been satisfied, but such presumption may be
displaced by the circumstances themselves having no
reasonable nexus with the purpose for which the power has
-· been exercised. Upon challenge being made to the use
of power under Section 17, the Government must produce
H
RAM DHARI JINDAL MEMORIAL TRUST v. UNION 541
OF INDIA [R.M. LODHA, J.]
appropriate material before the Court that the opinion for A
dispensing with the enquiry ·under Section 5-A has been
formed by the Government after due application of mind
on the material placed 1:5efore it.
It is true that power conferred upon the Government under 8
Section 17 is administrative and its opinion is entitled to
due weight, but in a case where the opinion is formed
regarding the urgency based on considerations not
germane to the purpose, the judicial review of such
administrative decision may become necessary.
c
As to in what circumstances the power of emergency can
be invoked are specified in Section 17(2) but
circumstances necessitating invocation of urgency under
Section 17(1) are not stated in the provision itself.
Generally speaking, the development of an area (for D
residential purposes) or a planned development of city,
takes many years if not decades and, therefore, there is
no reason why summary enquiry as contemplated under
Section 5-A may not be held and objections of
landowners/persons interested may not be considered. In E
many cases, on general assumption likely delay in
completion of enquiry under Section 5-A is set up as a
reason for invocation of extraordinary power in dispensing
with the enquiry little realizing that an important and valuable
right of the person interested. in the land is being taken F
away and with some effort enquiry could always be
completed expeditiously.
The special provision has been made in Section 17 to
eliminate enquiry under Section 5-A in deserving and ..
cases of real urgency. The Government has to apply its G
mind on the aspect that urgency is of such nature that
necessitates dispensation of enquiry under Section 5-A.
We have already noticed a few decisions of this Court.
There is conflict of view in the two decisions of this Court
viz. Narayan Govind Gavate v. State of Maharashtra, H
542 SUPREME COURT REPORTS (2012] 2 S.C.R.
A (1977) 1SCC133, and State ofU.P. v. Pista Devi, (1986)
4 SCC 251. In Om Prakash v. State of U.P., (1998) 6 SCC
1, this Court held that decision in Pista Devi (supra) must
be confined to the fact situation in those days when it was
rendered and the two-Judge Bench could not have laid
B down a proposition contrary to the decision in Narayan
Govind Gavate (supra). We agree.
As regards the issue whether pre-notification and post-
notification delay would render the invocation of urgency
power void, again the case law is not consistent. The view
c of this Court has differed on this aspect due to different
fact situation prevailing in those cases. In our opinion such
delay will have material bearing on the question of
invocation of urgency power, particularly in a situation
where no material has been placed by the appropriate
D Government before the Court justifying that urgency was
of such nature that necessitated elimination of enquiry
under Section 5-A.
In a country as big as ours, a roof over the head is a
E distant dream for a large number of people. The urban
development continues to be haphazard. There is no doubt
that planned development and housing are matters of
priority in a developing nation. The question is as,to
whether in all cases of 'planned development of the city'
F or 'for the development of residential area', the power of
urgency may be invoked by the Government and even
where such power is invoked, should the enquiry
contemplated under Section 5-A be dispensed with
invariably. We do not think so. Whether 'planned
development of city' or 'development of residential area'
G
cannot brook delay of a few months to complete the
enquiry under Section 5-A? In our opinion, ordinarily it can.
The Government must, therefore, do a balancing act and
resort to the special power of urgency under Section 17
in the matters of acquisition of land for the public purpose
H
RAM DHAR! JINDAL MEMORIAL TRUST v. UNION 543
OF INDIA [R.M. LODHA, J.]
viz. 'planned development of city' or 'for development of A
residential area' in exceptional situation.
Use of the power by the Government under Section 17 for
'planned development of the city' or 'the development of
residential area' or for 'housing' must not be as a rule but
8
by way of an exception. Such exceptional situation may be
for the public purpose viz. rehabilitation of natural calamity
affected persons; rehabilitation of persons uprooted due
to commissioning of dam or housing for lower strata of the
society urgently; rehabilitation of persons affected by time C
bound projects, etc. The list is only illustrative and not
exhaustive. In any case, sans real urgency and need for
immediate possession df the land for carrying out the
stated purpose, heavy onus lies on the Government to
justify the exercise of such power.
D
It must, therefore, be held that the use of the power of
urgency and dispensation of enquiry under Section 5-A by
the Government in a routine manner for the 'planned
development of city' or 'development of residential area'
and thereby depriving the owner or person interested of a E
very valuable right under Section 5-A may not meet the
statutory test nor could be readily sustained."
18. If the government seeks to invoke its power of urgency,
it has to first form the opinion that the land for the stated public
purpose is urgently needed. Such opinion has to be. founded F
on the need for immediate possession of the land for carrying
out the purpose for which land is sought to be compulsorily
acquired. The use of power of urgency under Section 17(1) and
(4) of the Act ipso facto does not result in elimination of enquiry
under Section SA and, therefore, if the government intends to G
·eliminate enquiry, then it has to apply its mind on the aspect
that urgency is of such nature that necessitates elimination of
such enquiry. The satisfaction of the government on twin
aspects viz; (i) need for immediate possession of the land for
carrying out the stated purpose and (ii) urgency is such that H
S44 SUPREME COURT REPORTS [2012] 2 S.C.R.
A necessitates dispensation of e_nquiry is a must and permits no
departure for a valid exercise of power under Section 17(1) and .
(4). In paragraph S1 of the case of Anand Singh .. it has been
held that use of the power of urgency and dispensation of
enquiry under Section SA of the Act by the Government in a
B routine manner for the "planned development of city" or
"development of residential area" and thereby depriving the
owner or person interested of a very valuable right under
Section S-A may not meet the statutory test nor could be readily
sustained (emphasis supplied). Ordinarily, therefore, invocation
c of urgency power by the government for a Residential Scheme
- that does not fall in exceptional category as illustrated in para
SO of Anand Singh8 - cannot be held to be legally sustainable.
19. Adverting now to the Notification dated October 27,
1999, the statement made therein is 'to the effect "the Lt.
D Governor, Delhi is satisfied also that provisions of sub-section
(1) of 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 SA shall not apply". For
what has been stated just above in immediately preceding
E paragraph, the exercise of power by the Lt. Governor, Delhi
under Section 17(1) and (4) has to be held bad in law.
Moreover, except the above statement in the Notification, there
is no other material available on record which indicates that
there has been application of mind by the Lt. Governor, Delhi
F on the aspect that urgency was of such nature that necessitated
dispensation of enquiry under Section SA of the Act. The
respondents have miserably failed to show that the stated
· purpose 'Rohini Residential Scheme' could not have brooked
the delay of few months and the conclusion of the enquiry under
G Section SA of the Act would have frustrated the said public
purpose.
20. Where the government invokes urgency power under .
Section 17(1) and (4) for the public purpose like 'planned
development of city' or 'development of residential area' or
H
RAM DHARI JINDAL MEMORIAL TRUST v. UNION 545
OF INDIA [R.M. LODHA, J.]
'Residential Scheme', the initial presumption in favour of .the A
·government does not arise and the burden lies on the
government to prove that the use of power was justified and
dispensation of enquiry was necessary. In the present case, the
respondents have miserably failed to show to the satisfaction
of the Court that power of urgency and dispensation of enquiry B
under Section 5A has been exercised with justification. The
action of the Lt. Governor, Delhi, in the facts of the case
whereby he directed that the provisions of Section 5A shall not
apply, if allowed to stand, it would amount to depriving a person
of his property without authority of law. c
21. The power of urgency by the Government under
Section 17 for a public purpose like Residential Scheme cannot
be invoked as a rule but has to be by way of exception. As
noted above, no material is available on record that justifies
·dispensation of enquiry under Section 5A of the Act. The High D
Court was clearly wrong in holding that there was sufficient
urgency in invoking the provisions of Section 17 of the Act.
22. Consequently, the appeal is allowed. The Notification
dated October 27, 1999 to the effect "the Lt. Governor, Delhi E
is satisfied also that provisions of sub-section (1) of 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" insofar as
appellant's land is concerned is quashed. The declaration F
dated April 3, 2000 issued and published under Section 6 of
the Act concerning the subject property is also quashed. The
Competent Authority may now invite objections under Section
5A of the Act pursuant to the Notification dated October 27.
1999 and proceed with the matter in accordance with law. No G
order as to costs.
D.G. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Land acquisition"Sign in to search