Holding

The State was lawfully entitled to acquire the disputed land under Section 4(1) for a public purpose and to dispense with the Section 5‑A inquiry under Section 17(4), and the High Court’s quashing of the notification was erroneous.

Summary

The State of Uttar Pradesh acquired land for a Public Works Department office and, while constructing a building and protective wall, encroached upon land owned by Keshav Prasad Singh. A civil suit resulted in a mandatory injunction directing the State to demolish the encroachment and restore possession to the respondent. Instead of complying, the State appealed the civil decree and invoked its eminent‑domain powers under Section 4(1) of the Land Acquisition Act, 1894, issuing a notification and, under Section 17(4), dispensing with the inquiry required by Section 5‑A on the ground of urgency. The High Court quashed the notification, holding that the State’s actions were colourable and that the land was not waste or arable. The Supreme Court reversed this view, holding that the land was required for a public purpose, the State was entitled to acquire it under Section 4(1), and the urgency justified dispensing with the Section 5‑A inquiry, so the High Court’s order was illegal. Consequently, the appeal was allowed and the writ petition dismissed.

Issues considered

When can the State invoke Section 4(1) of the Land Acquisition Act to acquire land that is the subject of a pending civil suit and injunction?
Whether the State may dispense with the Section 5‑A inquiry under the urgency clause of Section 17(4) when a mandatory injunction is in force.
Whether the exercise of eminent‑domain powers in the present facts amounts to a colourable or arbitrary exercise of power.

Legislation cited

Land Acquisition Act, 1894s. 17(1), s. 17(4), s. 4(1), s. 5-A, s. 6

Subjects

Land acquisitionEminent domainPublic purposeSection 4(1) Land Acquisition ActSection 5-A inquirySection 17(4) urgency clauseColourable exercise of powerMandatory injunctionCompensation

Judgment

THE STATE OF UTTAR PRADESH AND ANR. A
v.
KESHAV PRASAD SINGH
,-..,,,.
JULY 25, 1995
B
[K. RAMASWAMY AND K.S. PARIPOORNAN, JJ.)

Land Acquisition Act, 1894:Sections 4( 1), 5-A, 6 and 17(4).

State-Acquisition of land for constrnction of PWD office-Constrnc_-
tion of building and wall for protection of building-Encroachment of land c
during construction-Suit by owner-Injunction by Civil Court-Direction to
remove encroachment and delivery of possession to owner-State instead
filing appeal and issuing Notification for disputed land and dispensing en-
quiry-Exercise of power of eminent domain by State-Held justified in view
of the public purpose. D
The appellant-State acquired certain lands for construction of PWD
office in Azamgarh city. Accordingly, a building and a compound wall to
protect the said building was constructed. Subsequently, in a suit filed by
the respondent, it was found by the Civil Court that while constructing the
building the respondent's land had been encroached upon. Consequently E
a mandatory injunction was issued to the PWD Department to demolish
encroachment and give delivery of possession of the encroached land to
the respondent. Instead of so doing, the State filed an appeal and simul-
taneously exercised its power of eminent domain and issued a Notification
under section 4(1) of the Land Acquisition Act, 1894. Further exercising F
its power under section 17(4) of the Act the State dispensed with the
enquiry under Section 5-A.

The respondent filed a writ petition before the High Court which
quashed the Notification as well as the declaration on the ground that (i)
the power exercised under section 17(1) was not justified since the land G
was neither waste nor arrable land and that, therefore, the Notification
., dispensing with the enquiry under section S(A) was illegal; and (ii) a
mandatory injunction for demolition of the compound wall having been
issued by the Civil Court, the exercise of the power under section 4(1) of
the Act was colourable. H
329
330 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A In ~peal to this Court, it was contended for the State that the view
taken by th~ High Court was clearly unsustainable because (a) in the
circumstances of the case the State was justified in exercising its power of
eminent domain and issuing the Notification under Section 4(1) and (b)
since the compound wall was already constructed and the mandatory
injunction was operating against the appellant for its demolition, the
B
Government was justified in exercising its power under section 17(1) read
with section 17(4) for dispensing with the inquiry under Section 5-A.

Allowing the appeal, this Court.

C HELD : 1. The conclusion of the High Court was clearly illegal. When
the land in ques~ion was needed for a public purpose i.e. as part of public
office, the State is entitled to exercise its power of eminent domain and
would be justified to acquire the land according to law. Section 4(1) was,
therefore, correctly invoked to acquire the land in dispute. It is true that
D the State had not admitted that its officers had encroached upon the
respondent's land and had carried the matter in appeal. The finding of the
Civil Court was that the property belongs to the respondent. The factum
of the action under the Act implies admission of the title of the respondent
to the extent of land found by the civil court to be an encroachment.
Though the State chose to file the appeal which was · pending, better
E judgment appears to have prevailed on the State to resort to the power of
eminent domain instead of taking a decision on merits from a Court of
Law. In view of the fact that the PWD office building was already con-
structed and a compound wall was needed to make the building safe and
secure and construction was already made, which is a public purpose, the
F exercise of power of eminent domain is perfectly warranted under law. It
can neither be said to be colourable exercise of power nor an arbitrary
exercise of power. [333-A-C]

2. In the facts and circumstances of the case, the Government was
justified in exercising its power under section 17 (4) invoking urgency clause
G and dispensing with the enquiry under section SA. By no stretch of imagina-
tion it could be said that there was no public purpose, for which enquiry
under section 5-A could be made and decision taken. In that view of the
matter, the High Court was clearly in error in allowing the writ petition and
it committed a manifest error of law in quashing the notification, under
H section 4(1) and declaration under section 6 of the Act. [333-F-G]
STATE OF U.P. v. KP. SINGH 331

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1317 of A
1978.

From the Judgment and Order dated 19.7.77 of the Allahabad High
Court in W.P. No. 1179 of 1973.
B
K.S. Chauhan and R.B. Misra for the Appellants.

Manoj Swarup and Ms. Lalita Kohli for the Respondents.

The following Order of the Court was delivered :
c
This appeal by special leave arises from the Judgment of the Division
Bench of the Allahabad High Court in Writ Petition No. 1179/73 dated the
July 19, 1977. The facts lie in a short compass. The land comprising 205
links situated in plot No. 702 which comprises a total area of 580 links was
acquired in the year 1963 for the construction of PWD office building in D
Sharjuddinpur in Azamgarh city. While making construction, it was indeed,
as found by the Civil Court, at a suit of the respondent that the State had
encroached upon 140 links of the land in the said plot No. 702 which was
subsequently demarcated as plot No. 702/A and described as plot nos.
702/4 (68 links) and 702/5 (72 links). The Civil Court issued a mandatory E
injunction directing the PWD Department to remove the encroachment.
The State while carrying the matter in appeal, simultaneously invoked its
power of eminent domain and issued notification under Section 4(1) of the
Land Acquisition Act, 1894 (for short, 'the Act') which was published on
October 26, 1972. The said notification came to be questioned in the High
Court in this Writ Petition on two grounds and the High Court found,
F
firstly, that the power exercised under s.17(1) was not justified since the
land is neither waste nor arrable land and that, therefore, the notification
dispensing with the inquiry under s.S(A) was clearly illegal. The Govern-
ment without admitting that the respondent was the owner and having filed
the appeal to the District Judge on the basis of the finding that the G
appellants had encroached upon the respondent's land and a mandatory
injunction for demolition of the compound wall having been issued, the
exercise of the power section 4(1) of the Act was colourable. Accordingly,
the notification under s.4(1) and the declaration under s.6 came to be
quashed. Thus, this appeal by special leave. H
332 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A It is contended for the State that the view taken by the High Court
is clearly unsustainable. When the State found that there is mandatory
injunction issued by the Court holding that the respondent is owner of the
land and that the construction was made on a land which is not part of the
land acquired in 1963, the Government exercised the power of eminent
B domain and that, therefore, the State is entitled to issue the notification
under s.4(1). It is also contended that since the compound wall was already
constructed and as mandatory injunction was operating against the appel-
lant for its demolition, the Government was justified to exercise its power
under s.17(1) read with s.17(4) dispensing with the inquiry under Section
SA of the Act.
c
Sri Manoj Swarup, the learned counsel appearing for the respondent
in his usual vehemence contends that this is a clear case of mala fide and
colourable exercise of the power. In view cif the fact that the Government
had not admitted the right of the respondent and the State had taken a
D different stand that it was a mistaken identity of the property and since the
Civil Court recorded a finding that the respondent is the owner of the land
the Government, without surrendering possession or demolition of the
compound wall, cannot justify its unlawful action by exercising the power
of eminent domain. It cannot issue the notification under s.4(1) to nullify
E the decree of injunction of the Civil Court. Thus, it ·would constitute
colourable exercise of power and this Court would be reluctant to justify
such action under Article 136 to support such high-handed and illegal
action on the part of the State. It is also contended that since land is not
an arrable land, the exercise of power under s.17(1) read with s.17(4) is
F clearly illegal.

Having considered the respective contentions, we are of the con-
sidered view that the conclusion of the High Court was clearly illegal. It is
· seen that the land acquired was for a public purpose. Admittedly, the same
land was acquired in the year 1963 for building a PWD office and after
G construction compound wall was also constructed to protect the building.
As found by the Civil Court, on adducing evidence in a suit, that the
Department had encroached into respondent's land which was directed to
be demolished and delivery of possession to be given. It is seen that when
that land was needed for a public purpose, i.e. as part of public office, the
H State is entitled to exercise its power of eminent domain and would be
STATE OF U.P. v. K.P. SINGH 333

justified to acquire the land according to law. Section 4(1) was, therefore, A
correctly invoked to acquire the land in dispute. It is true that the State
had not admitted that its officers had encroached upon the respondent's
land and had carried the matter in appeal. The finding of the Civil Court
...-.- was that the property belongs to the respondent. The factum of the action
under the Act implies admission of the title of the respondent to the extent B
of land found by the civil court to be an encroachment. Though the State
chose to file the appeal which was pending, better Judgment appears to
have prevailed on the State to resort to the power of eminent domain
instead of taking a decision on merits from a Court of Law. In view of the
fact that the PWD Office building was already constructed and a com-
pound wall was needed to make the building safe and secure and construc-
c
tion was already made, which is a public purpose, the exercise of power of
eminent domain is perfectly warranted under law. It can neither be said to
be colourable exercise of power nor an arbitrary exercise of power.

The next question is whether the Government would be justified in D
exercising its power under s.17(4) and dispense with the inquiry under s.5A
of the Act. Mandatory injunction issued by the Civil Court to demolish the
compound wall and to restitute possession to the respondent had to be
complied with. There is thus urgency. The public purpose was obvious as
the compound was required to be retained to protect the safety of the E
office. The object of s.5A enquiry was to show whether there was no public
purpose or the land was not suitable or some other lands may be acquired.
All these relevant and related facts are redundant due to the facts of the
case.

' So, on the facts and in the circumstances, the Government was
justified in exercising their power under s.17(4) invoking urgency clause
and dispense with the inquiry under s.5A. By no stretch of imagination it
F

could be said that there was no public purpose, for which inquiry under
s.5A. could be made and decision taken. In that view of the matter, the
High Court was clearly in error in allowing the Writ Petition and com- G
mitted a manifest error of law in quashing the notification under s.4(1) and
declaration under s.6 of the Act.

In view of the fact that the matter is pending for a long time, the
Land Acquisition Officer is directed to pass an award within six months H
334 SUPREME COURT REPORTS [1995) SUPP. 2S.C.R.
'.·
A from the date of the receipt of the order of this Court. It is open to the
respondent to put forth his claim for compensation according to law and
it would be decided by the Land_ Acquisition Officer according to law. The
Appeal is allowed and the W.P. stands dismissed. No costs.

T.NA. Appeals allowed