Jandha Singh And ORS. v. Union Of India And ORS.
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' D99 (i) xxxxxx (iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the court is not only entitled but is duty"bound to scrutinise the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the landowner is likely to become landless and deprived of the only source of his livelihood and/or shelter.
(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5"A and 6 of
= the Act. A public purpose, however laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, can the State invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons. (v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5"A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5"A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5"A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.
(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the authorities concerned did not apply their mind to the relevant factors and the records.
(vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5"A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in sub"section (4) of Section 17 makes it clear that it
8 merely enables the Government to direct that the provisions of Section 5"A would not apply to the cases covered under sub"section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).
(viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Sections 17(1) and/or 17(4). The court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Sections 5"A(1) and (2) is not at all warranted in such matters. (ix) If land is acquired for the benefit of private persons, the court should view the invoking of Sections 17(1) and/or 17(4) with suspicion and carefully scrutinise the relevant record before adjudicating upon the legality of such acquisition."
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I,* - ,$' 2% It was also pointed out that the U.P. Urban Planning
6 and Development Act, 1973 (hereinafter to be referred to as "the Development Act") had come into force on 12"6" 1973 with the object of development of certain areas. A master plan was prepared under the Development Act and after the same was published objections and suggestions were invited. Thereafter, the master plan was finalised. In the said master plan this area was earmarked for Transport Nagar. At present, the State road transport bus terminal is situated in the thickly populated area and there really is traffic congestion. The master plan contemplated acquisition of a total area of 501.58 hectares of land for the integrated plan for the purpose of alleviation of all the traffic problems, inter alia, by constructing a new Transport Nagar Bus"Stand at Delhi"Khurja and Shikarpur Roads and widening of the roads......
0 There is no gainsaying in the fact that this right to file objection under Section 5"A is a valuable right and the Governments are not given a free hand to dispense with Section 5"A. Section 5"A is only a safeguard against the arbitrary exercise of the power by the State. But one should also not lose sight of the fact that invocation of such a provision is also sometimes imperative as in order to meet the urgency of the situation it needs to be invoked in public interest. It depends upon case to case. Sometimes it may not be necessary at all and the State functionaries may sometimes out of overzealousness invoke this provision which would seriously jeopardise the interest of the people. Therefore, it depends upon case to case where in a given situation Section 5"A has been correctly invoked and the authorities were satisfied in an objective manner. In the present case, there are no two opinions that because of globalisation of the economy,
: Indian economy is progressing with fast speed, therefore in order to keep pace with the speed, invocation of Section 5"A has become imperative.
3 Traffic congestion is a common experience of one and all and it is very difficult to negotiate the traffic congestion in Delhi and National Capital Region. Therefore, in the present situation, it cannot be said that the invocation of Section 5"A was for ulterior purpose or was arbitrary exercise of the power. Since the master plan has already been prepared and it has been approved by the Planning Board and they have sanctioned a sum of Rs 20.65 crores for the development of this Transport Nagar and widening of National Highway 91 into four lanes. Therefore, the proposal was approved by the Board and it got the sanction from the National Capital Regional Planning Board and ultimately the Government invoked the power under Section 17(4) read with Section 5"A of the Act dispensing with the objections.
In the light of these facts it cannot be said that invoking of power was in any way an improper exercise. There is need for decongestion of traffic and it is really the dire need of the hour and earlier it is implemented, the better for the people at large. In this connection learned Senior Counsel for the appellants invited our attention to the decision of this Court in Union of India wherein it was held that Section 5"A is not an empty formality but it is a substantive right which can be taken away only for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. But in the present case the notification was struck down on the facts that no material was placed on record and secondly, it was also held that discontinuance of festival for want of land and any hindrance in using the land was not there.
&7 pointed out that earlier an attempt was made to acquire the land for the very same purpose for holding such festivals and it was allowed to lapse by efflux of time and consequently, the Court found that there was no reference in the file to the need of invoking Section 17(4) and therefore, in a given situation, Their Lordships held that invocation of Section 17(4) of the Act was vitiated by non"application of mind by the authorities. Therefore, this case was decided on the question of fact.
As against this, learned Senior Counsel for the respondents submitted that traffic congestion has been recognised by this Court in Union of India v. Praveen Gupta as urgent need. In this case, land was acquired in order to shift the timber business from the walled city of old Delhi as it had become the source of traffic congestion. Therefore, it was required to be urgently shifted from the existing place to relieve the congestion by acquiring the land concerned for a public purpose, namely, for establishment of timber depot. In that context, Their Lordships held as follows: (Praveen Gupta case, SCC p. 81, para 8) "8. @ since the acquisition is for shifting of timber business from the walled city to the outskirts of the city, shifting itself is for urgent purpose viz. to relieve the traffic congestion in the walled city. Under those circumstances, the exercise of power under Section 17(4) cannot be said to be unwarranted in this case."
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& 2%" The Expressway is a work of immense public importance. The State gains advantages from the construction of an expressway and so does the general public. Creation of a corridor for fast"moving traffic resulting into curtailing the travelling time, as also the transport of the goods, would be some factors which speak in favour of the Project being for the public purpose. Much was stated about the 25 million sq m of land being acquired for the five parcels of land. In fact, in our opinion, as has rightly been commented upon by the High Court, the creation of the five zones for industry, residence, amusement, etc. would be complementary to the creation of the Expressway.
%0 It cannot be forgotten that the creation of land parcels would give impetus to the industrial development of the State creating more jobs and helping the economy and thereby helping the general public. There can be no doubt that the implementation of the Project would result in coming into existence of five developed parcels/centres in the State for the use of the citizens. There shall, thus, be the planned development of this otherwise industrially backward area. The creation of these five parcels will certainly help the maximum utilisation of the Expressway and the existence of an Expressway for the fast"moving traffic would help the industrial culture created in the five parcels. Thus, both will be complimentary to each other and can be viewed as parts of an integral scheme. Therefore, it cannot be said that it is not a public purpose......
01 This takes us to the next point pertaining to the application of Sections 17(1) and 17(4) of the Act. The learned counsel for the appellants have vociferously urged that there was no necessity whatsoever to apply
&& the urgency clause to these acquisitions and further to avoid the enquiry under Section 5"A of the Act. According to the learned counsel, this dispensation of Section 5"A enquiry was not only unjust, but added to the sufferings of the appellants who had lost their fertile land. It was pointed out that this Project was slumbering since 2001 and it was in order to infuse fictitious urgency that a reference to the Commonwealth Games was made. According to the appellants, the right to be heard was akin to the fundamental rights and its breach has rendered the whole acquisition exercise illegal. A number of authorities were relied upon by the appellants. 0% The respondents, on the other hand, argued that there was material available before the Government justifying the invocation of the urgency clause.
The respondents argued that, in fact, the High Court has returned the finding that there was material before the State Government for dispensing with the enquiry under Section 5"A of the Act and that finding was based on the examination by the High Court of the records of the State Government. It was pointed out that going through the ordinary procedure for acquisition of land would have taken years for disposal of the objections while the land was urgently required for public purpose, in this case, the construction of interchange under Yamuna Expressway Project, which was absolutely essential for the purposes of running the highway."
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, In a reported decision in Kishan Das v. State of U.P. this Court has taken a view that where the acquisition has been completed by taking the possession of the land under acquisition and the constructions have been made and completed, the question of urgency and the exercise of power under Section 17(4) would not arise. We must notice that acquisitions in this case are of 1984"1985 and two decades have passed thereafter. The whole township has come up, the houses and the lands have been allotted, sold and resold, awards have been passed and overwhelming majority of landowners have also accepted the compensation, this includes even some of the appellants. In such circumstances we do not think that the High Court was in any way wrong in not interfering with the exercise of power under Section 17(4) of the Act. At any rate, after the considered findings on the factual questions recorded by the High Court, we
&; would not go into that question."
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3 !%14 >: ., 0 2 % It is not in dispute and, in fact, can hardly be disputed that in the intervening period of nearly ten years, the acquired areas have fully developed. Not only this, it is informed during the course of hearing that the award was finally made by the authorities on 9"6"2008 and has been accepted by nearly 97.6% of the owners whose lands were acquired vide the said notification. In other words, nearly all landowners have accepted the award and permitted the development activity to be carried out. This conduct of the owners as a whole would again be a factor which will weigh against the grant of any relief to the appellants. Huge amounts of money and resources of the State, as well as other bodies or persons have been invested on the development of this sector which is stated to be an industrial sector. It will be unjust and unfair to uproot such a developed sector on the plea raised by the present appellants.
, In this view, I am fully supported by the judgment of a Division Bench of this Court, to which my learned Brother (Ganguly, J.) was a member, in T.N. Housing Board v. L. Chandrasekaran. The Bench was primarily dealing with the question of reconveyance of the acquired lands on the grounds of discrimination and arbitrariness. The High Court had passed a direction against the Board to reconvey the acquired land, which was held by this Court, on appeal, to be contrary to the provisions of Section 48 of the Act. This Court settled the point of law holding that it is not appropriate for the Court to quash the acquisition proceedings at the instance of
&9 one or two landowners, where the development had taken place and majority of the landowners had not challenged the acquisition."
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04 >: , 0 211 The first and foremost thing which we must keep in mind while deciding these matters is that at least in the present two matters (Balbir Singh case and Nand Kishore case, the subject related only to the acquisition of few hectares of land as compared to the acquisition of a large chunk which has not been challenged. Further, it is an admitted position that majority of the acquisition proceedings are over. In Balbir Singh case also, the persons who challenged the Project, were nine in number, owning about 7.09 ha of land i.e. about 0.42% of the total land.
1% It has been strongly argued on behalf of the State, the Company and YEIDA that the major activity of land acquisition process is over. It has been noted in Balbir Singh case that out of the 12,315 affected farmers in 133 villages over the total area of 1638 ha of the Expressway, 11,387 have already received compensation and only 142 farmers out of such a large number of villages have raised the issues, leaving 139 farmers who had not taken the compensation. This is apart from the fact that only 9 writ petitioners came in that writ petition. The story in Nand Kishore writ petition which was disposed of by the High Court along with other writ petitions is no different. 1, The learned counsel appearing on behalf of the appellants could not deny the fact that the total number of petitioners concerned in these acquisition proceedings, coming up before the High Court, was extremely
&6 insignificant as compared to those who had accepted the compensation. Of course, that by itself may not be the only reason to hold against the appellants (the petitioners), however, that fact will have to be kept in mind while deciding the issues which cover the whole acquisition process, which acquisition is for the purpose of development of 25 million sq m of land. The High Court has also noticed this aspect. We have mentioned this aspect only with a limited objective of showing that the criticism against the whole scheme which would invalidate the acquisition would be difficult to be accepted, particularly in this case, in view of the fact that majority of the landowners have parted with possession, taken the compensation and thus, the whole scheme has progressed to a substantial level, wherefrom it will be extremely difficult now to turn back to square one."
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