Allowed

Sri Achal Agarwal and Others v. State of U.P. and Others

Allahabad HC7 Jul 2023WRIC/53553/2010

Case brief

AI extract

What is this about?

The court quashed land acquisition notifications under Section 4 and Section 6 of the Land Acquisition Act for a Transport Nagar project due to unjustified invocation of the urgency clause under Section 17(4), unexplained delays, and mala fides by the Development Authority. The land was directed to be returned to the petitioners.

What did the court decide?

The acquisition proceedings (notification dated 11.09.2008 under Section 4/17(4) and declaration dated 26.08.2010) were quashed in respect of the writ petitioners, with directions for return of the la

Sri Achal Agarwal and Others Vs State of U.P. and Others — Land Acquisition | Allahabad HC (2023)

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Court No. - 29

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Neutral Citation No. - 2023:AHC:134022-DB

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Case :- WRIT - C No. - 53553 of 2010 Petitioner :- Sri Achal Agarwal And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- P.C. Jain Counsel for Respondent :- C.S.C.,Akansh Verma,Anand Prakash Paul,Atul Mehra,Suresh C. Dwivedi

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Alongwith

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WRIC/18433/2012,WRIC/58032/2012,WRIC/43799/2012,WRIC/50237/2012,W RIC/52702/2012,WRIC/3148/2011,WRIC/1708/2011,WRIC/12300/2011,WRIC/ 55937/2010,WRIC/59628/2010,WRIC/58007/2010,WRIC/58184/2010,WRIC/59 055/2010,WRIC/59476/2010,WRIC/59981/2010,WRIC/57445/2010,WRIC/6960 5/2010,WRIC/70193/2010,WRIC/75912/2010,WRIC/73894/2010,WRIC/74172/ 2010,WRIC/60678/2010,WRIC/60624/2010,WRIC/60623/2010,WRIC/59950/20 10,WRIC/58439/2010,WRIC/57446/2010,WRIC/60677/2010,WRIC/58122/2010

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Hon'ble Mrs. Sunita Agarwal,J.

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Hon'ble Vipin Chandra Dixit,J.

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Heard Sri Utkarsh Srivastava, holding brief of Sri Ram Bahadur Kushwaha, learned counsel for the petitioners, Sri Sanjeev Singh, learned Senior Advocate assisted by Sri Atul Mehra, learned counsel for the respondent-Agra Development Authority and Sri Suresh Singh, learned Additional Chief Standing Counsel and Sri Apurva Hajela, learned Standing Counsel for the State-respondents.

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The challenge in this batch of writ petitions is to the acquisition notifications dated 11.09.2008 issued under Section 4 read with Section 17(4) of the Land Acquisition Act, 1894 and the declaration dated 26.08.2010 under Section 6 read with Section 17(4) of the Land Acquisition Act (hereinafter referred

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as to the Act).

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The challenge is primarily on the ground that there was no justification for invocation of Section 17(4) to dispense with the inquiry under Section 5-A of the Act. The impugned notification and declaration suffers from illegality, irrationality, procedural impropriety and power to issue the same has not been exercised fairly and reasonably. The chronological events placed before us are that the impugned notification under Section 4 read with Section 17(4) of the Land Acquisition Act was published in the Gazette on 11.09.2008, whereafter it was published in the newspaper 25.09.2008, i.e. within 2 weeks, but no munadi or local declaration wa s effected for a long time, i.e. for about 10 months on 14.07.2009. This fact itself belies the existence of any urgency of the nature so as the require the dispensation of the inquiry under Section 5-A of the Act, which prescribes period of 30 days for making objection to the proposal under Section 4 of the Act 1894.

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It was submitted that in the resolution of the Board of Agra Development Authority, Agra (in short referred as development authority) in its meeting held on 31.03.2005, though proposal of acquisition was mooted and adopted by the establishment of new Transport Nagar (II Phase), but it nowhere provided that the purpose was so urgent that the land was immediately needed and request be made to the State to acquire the land invoking the urgency. Moreover, the declaration under Section 6 of the Act, 1894 was notified on 26.08.2010, which is much beyond the period of one year prescribed under the Act and is, thus, hit by the explanation (ii) to the first proviso to sub Section (1) of Section 6 of the Land Acquisition Act. The delay in making declaration under Section

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6 further demonstrates that there was no urgency so as to invoke the provisions of Section 17(4) to dispense with the inquiry under Section 5-A of the Act.

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It was further argued that there was no material before the State for recording any satisfaction and no satisfaction at all has been recorded by the State that the acquisition was for urgent purpose and it requires dispensing of the provisions of Section 5-A of the Act. The notification containing declaration under Section 17(4) is altogether perverse, erroneous and without jurisdiction. It was urged that the Land Acquisition Act being expropriatory legislation, its provisions have to be strictly construed and the prescribed procedure cannot be relaxed or any deviation from prescribed procedure would hit the notification in view of the provisions of Article 300-A of the Constitution of India. To exercise the right of Eminent Domain, the State has to comply with the procedure of law, strictly and cannot act arbitrarily and unreasonably to deprive the citizen of his property.

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The entire exercise undertaken by the respondents for acquisition by the impugned notification and declaration is vitiated for the reason of procedural irregularity, non application of mind, absence of public purpose and actions amounting to fraud on the power of the State at the ends of both the State of U.P., i.e. respondent no.1 and the Agra Development Authority, Agra, i.e. respondent no.2.

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By placing the minutes of 110^th Board meeting dated 17.02.2009, appended as Annexure-'11' to the writ petition, it was submitted by the learned counsel for the writ petitioners that it has come to the notice of the petitioners that upon objections being raised about environmental concern on the

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proposed Transport Nagar Scheme, the Agra Development Authority in principle decided to give up the said scheme and instead change the land use from industrial to residential and approved the proposal at item no.16 in the said meeting. The copy of the agenda item no.16 and the minutes of the Board meeting dated 17.02.2009 have been placed before us to assert that objections taken by the Society known as Mathura road environment society with regard to the location of the land in question, acquired land of 116.055 acres for construction of Transport Nagar, with the categorical stand that no environment impact assessment had been conducted before selection of the land in question. It was pointed out that the land in question was near 'Kitham Lake' and a reserve forest and birds sanctuary are located near the land in question. In the report submitted on the agenda under item no.16, for change of land use of the proposed land in the master plan to residential, it was also noted that for development of Transport Nagar at Gwalior road, proposals have been invited by the State and, moreover, one Transport Nagar was already existing at the Mathura road.

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Looking to the suggestion given by the Committee agitating the acquisition raising environmental concern, it was proposed that since Section 4 notification had already been published notifying the purpose of acquisition being Transport Nagar Project, the land use could be changed in accordance with the provisions of Section 13 of the U.P Urban Planning and Development Act, 1973 from Transport Nagar to residential, only after seeking the approval of the State Government and for that purpose, a proposal of the Board was required to be passed.

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The said report appears to have been accepted in the

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resolution at item no.'16' wherein it was resolved that the proceedings for change of land use, in accordance with law, would be initiated only after acquisition was completed. It was, thus, submitted by the learned counsel for the petitioner that admittedly the change of land use could only be done by the State Government in accordance with the provisions of Section 13(2) of the Act, (in short Act 1973), according to the procedure where public objections were to be invited and heard before altering the plan. However, from the resolution dated 17.02.2009, it is evident that the Agra Development Authority itself had resolved to give up its plan of developing Transport Nagar on the concern of the Society on environmental aspect. However, the Development Authority did not inform about this development to the State Government and had insisted to proceed with the acquisition in the name of Transport Nagar scheme, which clearly amounts to fraud on the part of the State authority and public at large.

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In these circumstances, the submission is that the public purpose for which urgency was invoked was for the project of establishment of Transport Nagar in Phase-2. However, with the resolution for change of public purpose, the urgency itself vanished. No environmental impact assessment had been made to assess the suitability of the land before selecting it by the Board by its resolution dated 31.03.2005 . No document or substance has been brought on record by the State to establish that there was material to record subjective satisfaction of the State to invoke urgency. There is prenotification delay as the proposal of acquisition was forwarded to the District Magistrate, Agra by the Development Authority on 22.09.2005 and the notification under Section 4 read with Section 17(4)

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was published in the year 2008. There is no explanation to the prenotification delay except the communications between the Development Authority and the State. 10% estimated compensation was deposited on 18.07.2006. The proposal of the Agra Development Authority dated 22.09.2005 did not accompany the certificate of the Land Use Committee headed by the Divisional Commissioner and the meeting of the Land Use Committee was held only on 13.03.2008, wherein it was decided that the land would be acquired and used for development of Transport Nagar as per the Master Plan. There were various objections of the State Government to the initial proposal dated 22.09.2005, after which a revised proposal was submitted on 27.12.2006. The Certificate in form 10 issued by the District Magistrate Agra providing justification of invocation of urgency under Section 17(4) of the Act for acquisition of land for development of Transport Nagar (Phase -II) is dated 31.03.2008, which eventually does not provide any justification for invocation of urgency clause. Thus, after almost three years of submission of the proposal by the Agra Development Authority which was defective and rectifications were made over the period of three years, the notification under Section 4(1) read with 17(4) of the Act, 1894 was issued by the State Government for acquisition of 46.986 hectares land for the alleged purpose of development of (new Transport Nagar II). Even after publication of the notification in the official gazette, much time had been taken in publication of the notification in the newspaper and public notice of the same by Munadi/beats of drums.

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The above chronology of events when taken into consideration, in light of the legal principle pertaining to

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invocation of urgency clause under Section 17(4) of the Act 1894, clearly establish that there was no urgency at all. The Right to Property conferred on the writ petitioners under Article 300-A of the Constitution of India has been taken away by the Development Authority as also the State, by denial of opportunity of hearing in an illegal manner. It is a case where fraud on the exercise of power of the State is writ large on the face of the record. Malice in law proved against the respondents would require interference in the action of the respondents in proceeding for acquisition. The post-notification delay is significant from the fact that the declaration under Section 6 of the Act 1894 was published after almost 2 years of the publication of Section 4 notification. The gap of time in two notifications is so deep that it cannot be filled on the explanation given by the respondents.

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It was, thus, argued that in the facts and circumstances of the instant case, there is no justification for compulsory acquisition by invoking the urgency clause. The legal position, in this regard, has been settled by the Apex Court in Radheyshyam vs. State of U.P¹ .

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The recent decision of the Apex Court in Hamid Ali Khan² has also been relied upon to assert that the exceptional and extraordinary power of doing away with an inquiry under Section 5-A in a case where possession of the land is required urgently or in an unforeseen emergency is provided under Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17

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1 . (2011) 5 SCC 553

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2021 SCC online SC 1115

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itself for exercise of exceptional power in dispensing with inquiry under Section 5-A. Exceptional the power, the more circumspect the Government must be in its exercise. The Government obviously, therefore, has to apply its mind before it dispenses with inquiry under Section 5-A on the aspect whether the urgency is of such a nature that justifies elimination of summary inquiry under Section 5-A.

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Reliance has been placed in the case of Deepak Pahwa vs Lt. Governor of Delhi³ to submit that the pre and post notification delay is fatal.

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Placing the judgments of the Apex Court in Hindustan Petroleum Corporation vs Dar ius Shapur Chenai& Ors⁴ and Lachhman Dass vs Jagat Ram⁵ , it was argued that the Right to Property vested in Article 300-A of the Constitution of India being a constitutional right can only be taken away by adopting due process of law. Moreover, the Right to Property is alleviated to the status of a human right. It is held by the Apex Court that right to hold property cannot be taken away except in accordance with the provisions of statute and if a superior right to hold a property is claimed, proposal, thereof, must be complied with. In the case of Union of India vs Deepak Bhardwaj⁶ the Apex Court had quashed the notification invoking urgency under Section 17(4) dispensing with the inquiry under Section 5-A, on the ground of total absence of material for the said decision. It was noted that works creating infrastructure are long term measures and such works keep on going as the society grow and there must be justification in law

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AIR 1984 SC 1721

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4.(2005) 7 SCC 627

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5(2007) 10 SCC 448

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AIR 2004 SC 3289

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for denying the opportunity of hearing to the owner to protect his property and canvass his grievances before the State against the acquisition.

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Reliance is placed on the decision of the Apex Court in Union Of India, Etc. vs Nand Kishore⁷ to argue that in the said judgment, the question as to whether the Government can change the purpose of acquisition of the land and acquire it for purpose other than that declared by it under Section 6(2) of the Land Acquisition Act, 1894, was examined. It was held therein that satisfaction of the State Government, though subjective, cannot be transferred from one public purpose to another public purpose. There can be no transferred satisfaction. The Government cannot change the original public purpose till the acquisition is complete and it must adhere to the original purpose. If they want to depart from the original purpose, only course open is to start fresh acquisition proceedings. However, after the land has vested in it, the Government has a right to change the use to which it will put the land. It was considered therein that Section 17 of the Act 1894 confers extraordinary power on the Government. The statutory powers must be exercised subject to the conditions and limitations laid down by the statute. The major condition is that the Government must be satisfied that there is a situation, grave and sudden, which calls for an immediate action. The theory of Section 17 is that the taker of the land has to be satisfied that there is an emergency, an unforeseen combination of circumstances, which calls for immediate action. The Government must strictly adhere to the purpose for which the emergency powers were given. The emergency, whether foreseeable or unforeseen, must exist

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7.AIR 1982 Delhi 462

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before action can be taken by the Government under Section 17. The words employed in Section 17 postulate the continued existence of emergency. The acquiring authority has to be satisfied about it. The satisfaction can be reached on the circumstances existing at the time the notification under Section 17 is issued. It must also be shown to exist at the time of taking possession of the desired lands. The object of Section 17 is to regulate the rights of the subject and the obligations of the executive when lands are taken on the occasion of a public exigency. If there is no emergency, the Government has no power to dispense with the formalities of the normal statutory procedure prescribed by the Act. An urgency justifying resort to Section 17 is justiciable.

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It was held that the doctrine of Eminent Domain is an aspect of sovereignty. The eminent domain is the highest and the most exact idea of property remaining in the Government or in the aggregate body of the people in their sovereign capacity. It gives a right to resume the possession of the property in the manner directed by the Constitution or the laws of the State, whenever the public interest requires it. In India, the right is regulated by the Act of 1894. The Statute has imposed restrictions and limitations and has attached certain conditions to the exercise of extraordinary power. The Government cannot disregard all these provisions and say that though originally the land was needed for fire station yet construction of staff quarters was as good a public purpose as any other and so the Government can take the land of the owner under Section 17. It was held therein that for such a course, there is no statutory sanction. The right to take private property for public use is a statutory power which the Government can exercise on certain

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conditions. The seizure and appropriation of private property in a case either where the emergency did not exist or the emergency had ceased to exist before the publication of notice under Section 9, will be wholly illegal and a colourable exercise of power.

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Reliance is further being placed on the decisions in Ram Dhari Jindal Memorial Trust vs Union of India⁸ , Darshan Lal Nagpal vs Govt of NCT of Delhi⁹ , Essco Fabs Pvt Ltd v/s State of Haryana¹⁰ , Garg Woollen Pvt Ltd vs State of U.P¹¹ , Devendra Singh vs State of U.P¹² , Dev Sharan vs State of U.P¹³ , Anand Singh vs State of U.P¹⁴ , Union of India vs Shiv Raj¹⁵ to substantiate the above submissions.

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With the above arguments, it was urged that the writ petitions deserve to be allowed with the quashing of the notifications for acquisition under Sections 4 and 6 of the Act read with Section 17 (4) invoking the urgency clause, upholding the right of the writ petitioners to enjoin their land without any restriction.

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Sri Sanjeev Singh learned Senior Counsel assisted by Sri Atul Mehra learned counsel for the respondent Agra Development Authority, in rebuttal, placing the counter

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(2012) 11 SCC 370

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(2012) 2 SCC 327

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10.(2009) 2 SCC 377

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11.(2012) 12 SCC 257

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(2011) 9 SCC 515

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13.(2011) 4 SCC 769 14.(2010) 11 SCC 242 15.(2014) 6 SCC 564

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affidavit of the State submits that the proposal for acquisition for 47.028 hectares of land of Village Runukta Tehsil Kiraoli District Agra, approved at item no.16 in the Board meeting dated 31.03.2005, was forwarded to the District Magistrate Agra vide letter dated 22.09.2005 sent by the Vice Chairman, Agra Development Authority.

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In the said communication dated 22.09.2005 itself, it was indicated that the land in question was needed for public purpose of construction of new Transport Nagar (Phase II).

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The Village Runakta is a part of the notified area under Agra Development Authority and after scrutiny of the said proposal the Special Land Acquisition Officer vide letter dated 21.10.2005 had intimated the deficiency in the proposal and asked the development authority to remove the same. Vide covering letter dated 01.02.2006, the spot inspection report of assets found on the proposed land in Prapatra-16 dated 30.01.2006 was appended. The copy of the letter dated 21.10.2006 as well as the covering letter alongwith the list of assets dated 01.02.2006 and 30.01.2006 is appended as Annexure-'2' of the counter affidavit of the State. Vide communication dated 24.01.2006, the Additional District Magistrate/Prescribed Authority, Urban Ceiling Agra had intimated that no land affected by ceiling or Gram Sabha land was included in the proposed land by Development Authority. The Chief Engineer Agra Development Authority forwarded the said information vide communication dated 25.01.2006 to the Special Land Acquisition Officer, Agra. Vide letter dated 27.04.2006 the Special Land Acquisition Officer Agra asked the Secretary, Development Authority to deposit 10% of estimated compensation as well as 10% acquisition charges, i.e total

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amount of Rs.5,33,76,096/- of the proposed land. The said amount was made available vide cheque dated 18.07.2006 and was deposited in the bank on 24.08.2006. The copy of the communication dated 27.04.2006 and 24.08.2006 establishing the said fact are appended as Annexure-CA-4. Revised proposal incorporating the suggestions of the Special Land Acquisition Officer and removal of discrepancies pursuant to the letter dated 27.12.2006 was sent by the Secretary Development Authority to the Special Land Acquisition Officer, appended as Annexure-'CA'-5 to the counter affidavit of the State. On receipt of the same, it was pointed out by the District Collector Agra, vide letter dated 29.12.2007 that the proposal lacks requisite certificate of Land Use Board and asked the authority to submit the same in Prapatra-8, so that the proposal may be forwarded to the State Government without delay. In response to the said query, the Agra Development Authority vide letter dated 25.03.2008 forwarded the minutes of meeting/report dated 13.03.2008 appended as Annexure-CA-'6' to the counter affidavit of the State. It is brought on record of the affidavit of the State that the Additional District Magistrate (Land Acquisition) vide letter dated 07.06.2008 asked the Chief Treasury Officer to transfer the 10% acquisition charges to the tune of Rs.2,66,88,048/- in the concerned treasury head, which process was duly completed. After removal of the defects as noted above, on scrutiny of the records, the office of the District Collector, Agra had forwarded land acquisition proposal in three copies to the Director of Land Acquisition, Directorate, Board of Revenue, Lucknow vide communication dated 31.03.2008 with the necessary certificate in Prapatra no.10, recommending for acquisition of land by invocation of Urgency Clause under Section 17.

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A perusal of the report of the District Magistrate/Collector, Agra in Prapatra-'10' at page-46 of the counter affidavit of the State indicates that only in one line, it was recommended therein that in order to complete the project without any delay, there was a requirement of taking possession of the land immediately and in the event of application of Section 17, the provisions of Section 5-A will be dispensed with. The District Collector, Agra has expressed his consent with the justification for dispensation of inquiry, taking away of the opportunity of hearing to the tenure holders, with the above statement. An assurance was given that on the issuance of notifications under Sections 4 and 6, physical possession of the land-in-question would be provided to the acquiring body, forthwith.

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On the proposal submitted by the District Magistrate, objections were raised by the Land Acquisition Directorate vide letter dated 20.05.2008, which were removed by the District Magistrate/Collector, Agra vide letter dated 14.07.2008, addressed to the Director and Commissioner, Land Acquisition Directorate, Board of Revenue, Lucknow.

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On completion of the said proceeding, the State Government had accorded approval to the proposal for issuance of notification for acquisition under Section 4(1) read with Section 17(4) dispensing with the inquiry under Section 5-A of the Act, 1894.

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It is stated in paragraph-'15' of the counter affidavit of the State that the State Government after due consideration of the entire material placed before it and having subjectively satisfied, it accorded its approval to issue notification dated 11.09.2008 under Section 4(1)/17(4) dispensing with the

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inquiry under Section 5-A, keeping in view of the urgent requirement of the land for the purpose of the Project namely New Transport Nagar (Phase II) Agra. After publication of the notification dated 11.09.2008, corrigendum dated 09.02.2009 was issued in the official Gazette to make correction in the number of Khasras which were wrongly published in the said notification. The corrigendum was published on 28.02.2009 in two daily newspapers having wide publicity on receipt of the copy of the Gazette notification of corrigendum dated 09.02.2009. The public notice of Section 17(4) and corrigendum notification for general information by pasting on the notice board at conspicuous places in the locality was issued on 14.07.2009 and circulated on 18.07.2009 by the process server.

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After various correspondence between the development authority and the Special Land Acquisition Officer, on completion of all necessary formalities, a proposal along with the covering letter dated 03.03.2010 was sent to the Special Land Acquisition Officer for issuance of declaration under Section 6(1)/17 of the Act. The said proposal was forwarded by the District Magistrate, Agra through the Land Acquisition, Directorate to the State Government and on approval of the State, the notification dated 26.08.2010 under Section 6(1) read with 17(1) was published in the official gazette dated 26.08.2010.

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It is contended in the affidavits of the State as also the Development Authority that as per the provisions contained in Section 6 of the Act, the declaration for the land required for public purpose is to be made within one year from the date of publication of notification under Section 4(1). The Explanation

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I of the Section 6 provides that in computing the period of one year referred in first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4(1) is stayed by the order of the Court, shall be excluded. Further Section 4(1) provides that the Collector shall cause public notice of substance of such notification at convenient places in the locality. The last date of such publication and the giving of such public notice shall be the date of publication of the notification.

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It is submitted that after publication of public notice of the substance of Section 4 notification on 14.07.2009, a writ petition no.48353 of 2009 was preferred before this Court, challenging the acquisition notification under Section 4(1) read with Section 17. By interim order dated 09.09.2009, the directions were issued to maintain status quo. The said writ petition was finally decided on 02.02.2010. As a result, the period of 4 months and 23 days during which the said interim order was operative is required to be excluded as per Explanation I to Section 6. Computing the period between issuance of proposal under Section 4 and declaration under Section 6, by excluding the aforesaid period, the declaration notification dated 26.08.2010 will fall within the period of one year from the date of last publication of notification under Section 4(1) which is 14.07.2009, in the instant case. The submission, thus, is that there is no illegality or delay in declaration under Section 6 which was issued within one year from the last date of publication of Section 4(1) notification.

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With regard to the stand of the writ petitioners in paragraph-'11' of the writ petition that there was delay in publication of the substance of the notification by public notice

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in the locality and the directions issued by the Directorate fixing the time period for the same issued vide Circular dated 22.08.1989 had not been complied with, the reply is given in para-'24' of the counter affidavit of the Development Authority. It is stated therein that the proceeding required under law in pursuance of Section 4 of the notification was completed within the time limit of two weeks from the date of notification prescribed by the aforesaid circular, by publication of the notification in daily newspapers on 25.09.2008.

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However, there was no time limit prescribed for public notice through Munadi or by pasting public notice in the local area. Further, under the Land Acquisition Act also, no time limit has been prescribed for Munadi or public notice through pasting. The public notice by Munadi (beats of drum) was made on 14.07.2009 and the notice of the contents of the notification was pasted on 18.07.2009 at conspicuous places of the local area of the acquired land. Thus, no illegality in issuance of notification under Section 6(1) /17(1) within one year from the date of last publication, made through Munadi on 14.07.2009, by excluding the time period during which the interim order of this Court was in existence.

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In reply to paragraphs-'13' and '14' of the writ petition, para-'26' of the counter affidavit has been placed before us to assert that for development of new Transport Nagar (Phase II) for which the land was urgently required, the State Government after considering all the relevant material, recorded satisfaction about the urgent need of the land for the Project.

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On factual aspects of the matter, learned counsel for the writ petitioners relied upon the statements made in the leading writ petition no.53553 of 2010, reply to which in the counter

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affidavit of the State and the Development Authority have been placed before us by the counsel for the respondents and, as such, the factual statement in this judgment are noted from the averments in the said writ petition and the counter affidavits of the respondents filed therein.

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As regards the contention of the writ petitioners in paragraphs-'31', '32', '33', '34', in reply to the contents of paragraphs-'31' and '32' of the writ petition with regard to the averments about the change of land use after submission of the proposal under Section 4 during the pendency of the land acquisition proceedings, the attention of the Court was invited to para-'37' of the counter affidavit of the Development Authority, respondent no.2, which reads as under:-

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“37. That the contents of paragraph nos.31 and 32 of the writ petition as stated are misconceived and incorrect hence not admitted. In reply, it is submitted that the Board in its 110 the meeting as a resolution no.16 decided to change the use of the proposed land in accordance with law after acquisition of the Land in the light of proposal as well as the reports received in respect of changing the use of Land from Transport Nagar to residential use. This fact itself is evident from the resolution dated 17.02.2009 taken in 110 meeting of the Board. Copy resolution dated 17.02.2009 is being filed herewith and marked as Annexure No.C.A-14 to this affidavit. It is relevant to submit here that by its proposal the authority had not committed any fraud or illegal acts. The resolution in A.D.A would take decision in accordance with law in respect of change of use of land after acquisition of the land.”

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The copy of the resolution dated 17.02.2009 appended as Annexure-'11' to the writ petition is same as that the document appended as CA-'14' to the Counter affidavit of the Development Authority.

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It is, thus, sought to be submitted by the learned Senior counsel for the Development Authority that in the resolution dated 17.02.2009 of the development authority, only this much

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was resolved that the decision in respect of change of land use would be taken after acquisition of the land, in accordance with law.

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In the supplementary counter affidavit filed in July, 2022 on behalf of the development authority, it is stated that the possession of 10.3599 hectares of land, was handed over to the development authority on 24.08.2012. The possession memo in this regard is appended as Annexure SCA-'1'. The award in respect to the acquired land for the total area of 46.9773 hectares out of the acquired area of 46.9860 hectares was declared on 10.10.2012. The possession of the remaining area of 36.6174 hectares of land could not be transferred to the development authority because of the interim order operating in the writ petitions (in this bunch), passed by this Court. The amount of Rs.29,69,93,528/- pursuant to the award dated 10.10.2012 had been deposited by the Development Authority with the balance amount of Rs.1,12,86,856/-which is corroborated from the documents appended as Annexure SCA-'3'.

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It is, thus, submitted that despite huge investment having been made by the Development Authority, development scheme could not be commenced due to partial possession of the scattered land, on account of pendency of the writ petitions before this Court.

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In the 2^nd supplementary counter affidavit filed on 24.05.2023 during the course of hearing, the resolution no.16 dated 31.03.2005 of the Board of Development Authority has been appended alongwith the minutes of the meeting of District Land Use Committee dated 25.07.2006 and the Divisional Land Use Committee meeting dated 13.03.2008. The copies of the

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requisite forms submitted with the proposal to the State Government have been collectively appended as Annexure -SCA-'2'.

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It is further submitted in the said affidavit that the Bird sanctuary is at a distance of approximately 3 kms from the land in question and to demonstrate the said fact, an enlarged map of the Master plan 2001-21 has been brought on record as Annexure-SCA-'5'.

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It is further submitted that the necessity/urgency arose to develop a Transport Nagar in the outskirts of Agra City, being a heritage city and due to excessive traffic congestion of heavy vehicles and further in view of the decision of the Apex Court to reduce carbon emission affecting the movement Taj Mahal.

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With these facts placed before us from the affidavits of the Development Authority and the State it was sought to be argued by the learned Senior Counsel for the Development Authority that there was no illegality much less irregularity in the acquisition in question. It was further argued that in order to ease the traffic congestion and ensure that the Transport vehicles do not enter into the city, need for creation of Transport Nagar arose. The survey was conducted to find out suitable land and decision was taken to go out of the city limits. The place where lands were owned by 70 tenure holders was identified by the Development Authority, in the Board meeting dated 31.03.2005, it was resolved that the identified place was the most suitable place for establishment of Transport Nagar.

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On a pointed query made by the Court as to whether any environmental impact study was conducted by the Development Authority at the time of selection of the land in question, no

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plausible reply could be given by the learned counsels appearing for the development authority. However, it was insisted by them that since the land-in-question can be demonstrated to be at a distance of approximately 3 kms from the Bird sanctuary from the enlarged map of the master plan, it can also be seen that industries are situated in between the bird sanctuary and the land in question. The ecological concern of the writ petitioners or the Society which raised objection is wholly illusory.

¶105

Submission, thus, is that from the situation of the land in question, it cannot be said that the Project of Transport Nagar, in any way, cause any damage to the environment of the lake or the bird sanctuary. The environment concern raised by the so called society was only at the instance of the writ petitioners, who are bent upon to stall the Project with vested interest.

¶106

As regards the Board meeting dated 17.02.2009 with regard to the change of land use, it was vehemently argued by the learned Senior Counsel for the development authority that the reading of the said resolution itself demonstrates that decision was taken to change the land use only after acquisition, after undertaking appropriate legal proceedings for the purpose. The objection of the Committee placed before the Board of Development Authority, in the report appended with the proposal at Agenda item no.'16' (at page-'62' of the writ petition) has been placed before us to assert that the said report only recorded the objections taken by the Committee. The approval of the proposal to change the land use to residential, which could only be undertaken after approval of the State Government, cannot be said to be a decision of the Board to change the land use after acquisition as it could not have been

¶107

¶108

unilateral decision of the Board of the Development Authority.

¶109

No fraud or any illegal act can be attributed to the Development Authority. It was merely a proposal which could have been acted upon only after the approval of the State Government and, as such, there was no occasion for communication of the same to the State Government. Moreover, it was merely a proposed decision, which was never acted upon as, thus, it can be said that it has met its decent burial automatically.

¶110

Even otherwise in the master plan, land in question has been proposed for construction of Transport Nagar and the said master plan was finalised after inviting objections of the public at large. It could not be demonstrated by the writ petitioners that, at any point of time, before finalisation of the master plan, at stage of inviting objections, anyone of them had objected to the proposal of establishment of the Transport Nagar in the master plan.

¶111

Even otherwise, the settled legal position is that the change of land use for which any particular piece of land is acquired, is permitted after acquisition and the owners /land holders cannot raise objection to the use of land after acquisition proceedings are completed.

¶112

It is further submitted that every claimant was heard by the SLO claimant at the time of making of the award and with the taking of possession of the land not affected by the interim orders and making of the award, the land acquisition proceedings stood concluded.

¶113

Even otherwise, the application under Section 48 of the Act 1894 filed by the writ petitioners to seek release of their

¶114

¶115

lands had been rejected by the State Government with the rejection of the representations vide order dated 26.08.2010, wherein it was noted that the map submitted by the writ petitioners for raising construction over the land in question has been rejected on 02.05.2006, after the land in question was proposed for construction of new Transport Nagar and, moreover, no construction was found on the spot even after the approval dated 04.04.2008 granted by the Development Authority to the proposed map submitted by the writ petitioners. For this reason, the initial resolution of the Board of Development Authority dated 27.01.2007 at item no.25 had been modified/amended with the resolution dated 22.08.2009 of the Board of Development Authority.

¶116

There was, thus, no justification for release of the landin-question from acquisition. It is sought to be submitted that all objections taken by the writ petitioners about the suitability of the land-in-question or the decision of the Board to change its land use are wholly without substance and are liable to be repelled having no bearing on the acquisition in question.

¶117

As regards the pre-notification delay pressed by the learned counsel for the petitioner, the submission of the learned Senior counsel for the petitioners is that the Board meeting for passing the resolution to acquire the land-in-question held on 31.03.2005, the proposal was sent to the State Government through the district Magistrate on 22.09.2005. The report with regard to the assets to the acquired land, i.e. things attached to the earth was submitted on 01.02.2006. A correction was required which was made on 22.11.2006, and the proposal of the development authority was processed with the completion of necessary formalities, i.e. appraisal of the same by the Land

¶118

¶119

Use Committee, both at the district level and the divisional level. In any case, the time taken in completion of necessary formalities to process the proposal cannot be termed as prenotification delay affecting the validity of the acquisition. The notification under Section 4 read with Section 17 was issued on 11.09.2008, after completion of all necessary formalities and the correction which was required and completed in the proposal from time to time.

¶120

As regards post-notification delay, it is submitted that the acquisition notification under Section 4 was required to be corrected on certain aspects and corrigendum in this regard was issued on 09.02.2009. Section 6 notification was issued within a period of one year from the date of the last publication which is giving of public notice of the contents of the notification at appropriate places. The time taken in the interim order passed by this Court in Writ Petition No.48353 of 2009, of about four months and 23 days, has to be excluded from the period of one year. The plea with regard to pre-notification delay, therefore, is wholly misconceived. It is further argued that the decision making process involves a multitear process culminating in the final decision. No infirmity can be found at any stage of the said proceedings. The departmental Secretary who has taken decision was competent to deal with the matter and the final decision has been taken on consideration of all materials relevant to the facts of the case. The plea of the petitioners for holding the acquisition as illegal on the alleged delay at pre and post notification stage is wholly misconceived.

¶121

A compilation of the judgement has been provided to support the above submissions by Sri Atul Mehra learned Advocate appearing for the respondent Development Authority.

¶122

¶123

Reliance is placed on the decisions of the Apex Court Delhi Development Authority Vs. Munni Lal & other¹⁶ and State of Uttarakhand & others Vs. Rajiv Berry & others¹⁷ to assert that invocation of Section 17(1) & 17 (4) of the urgency provisions was proper as the satisfaction of the State Government was recorded on all relevant aspects. Nothing could be brought before this Court to impress that the notification under Section 4 read with Section 17(1) & 17 (4) suffer from any illegality. It is further sought to be submitted that from the perusal of the original record of the State, it is more than evident that at each stage of the proceeding, conscious decision had been taken and no fault can be found in the process by which the decision has been arrived at.

¶124

Reliance is placed on the decision of the Apex Court in Lal Bahadur Vs. State of U.P.¹⁸ , Bhagat Singh Vs. State of U.P. & others¹⁹ and State of Haryana & others Vs. Vinod Oil & General Mills & another²⁰ to assert that it is not mandatory nor contemplated under the land acquisition proceedings to use the acquired land for the same purpose for which it was acquired. The decision of the Apex court in Bhagat Singh (supra) has been placed before us to submit that it is open for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain sanction of the said authority for suitable modification of the Master Plan so as to to permit the use of the land for the public purpose for which it is acquired. The only requirement is that the acquisition must be for public purpose. The change of land use permitted by the Master Plan or Zonal Plan enforced at the time of acquisition is

¶125

2018 (14) SCC 403

¶126

2016 (15) SCC 1

¶127

2018 (15) SCC 407

¶128

1992 (2) SCC 384

¶129

2014 (15) SCC 410

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¶131

permissible. The acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan enforced at the time the acquisition is made. The judgement of the Apex Court in J & K Housing Board & another Vs. Kunwar Sanjay Krishan Kaul & others²¹ has been placed before us to assert that the period of one year as referred in Section 6(2) has to be computed by counting from the last date of the publication date, as per the prescribed mode of publication under Section 4(1) of the Act. No infirmity, therefore, can be found in the process of publication of the notification under Section 6 of the Land Acquisition Act.

¶132

Sri Apurva Hajela learned Counsel for the respondentState seeks to argue that the factual aspects with regard to the pre-notification delay as alleged by the counsel for the petitioners has been clearly narrated in paragraph ‘6 to 15’ of the counter affidavit filed on behalf of the State, i.e. respondent No.3. The reliance is placed on the decision of the Apex Court in Deepak Pahwa (supra) to assert that considerable length of time spent on inter-departmental discussion before the notification under Section 4(1) was published, cannot be said to be fatal to invocation of urgency clause under Section 17(4) and dispensing with the enquiry under Section 5-A. Pre-notification delay may be caused by various factors such as representations of the affected persons to the competent authority, multiplicity of queries, communications and discussions leading to delay in the execution of an urgent project. The contention is that the Apex court in the said case has categorically held that mere prenotification delay would not render the invocation of urgency provision void. It is further argued that in Prapatra-10, the

¶133

2011 (10) SCC 714

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certificate issued by the Collector dated 31.03.2008 categorically records the reason for invocation of urgency clause and that the matter was urgent in the nature of the project, for the imminent requirement of establishment of Transport Nagar.

¶136

Reference has been made to the decision of the Apex Court in Chameli Singh & others etc. Vs. State of U.P. & another²² to impress upon the Court that the fact of pre and post notification delay, occurred, if any, in the instant case, was very much present before the State government when decision was taken by it to invoke urgency clause and dispense with the enquiry under Section 5-A. The delay occurred on various factors by itself accelerate the urgency. The phrase used in para16 of the said decision has been placed before us to assert that “larger the delay, greater be the urgency”. It was, thus, argued that the delay at the pre and post notification stage occurred due to various communications between the State and the development authority as also the representations given by the affected tenure holders, time taken in disposal thereof would rather aggravate the urgency. The position with regard to the time taken due to the interim order passed by this Court in the petition filed by the tenure holders/petitioners herein challenging acquisition proceedings under Section 4 of the Act’ 1894, as per the submission of learned Standing Counsel, is one of the reasons for delay at the post notification stage. It was placed before us that the writ petition wherein parties were directed to maintain status quo on 09.09.2009 had been dismissed for want of prosecution on 02.02.2010. The restoration application was also dismissed on 28.01.2011. The contention is that the present writ petition would amount to

¶137

AIR 1996 SC 1050

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filing of the second petition for the same relief.

¶140

Reference has been made to the observations in paragraph 86, 87, 94 and 105 of the judgement of the Apex Court in Om Prakash Vs. Union of India & others²³ to assert that in view of the interim order granted in the writ petition filed by the land owner, it was not possible for the respondent to have proceeded further to issue notification under Section 6 of the Act. The writ petitioners though got interim order at the initial stage but did not pursue their petition which has been dismissed for default and on account of this lapse on their own part, they cannot be rewarded by giving benefit of delay in the issuance of the declaration under Section 6 of the Act.

¶141

It is further argued that it is not open for the respondent to raise any environmental impact issued, in as much as, as per own stand of the writ petitioner in paragraph 6 of the counter affidavit, they had submitted map for developing the plot in question for truck workshop at the site, which according to the writ petitioners itself, was in consonance with the development scheme of the authority.

¶142

The original record of the State has been produced before us to assert that on final approval granted by the State to the proposal for acquisition by invoking urgency provision on 03.09.2008, Section 4 notification has been issued. The possession memo was prepared on 24.8.2012 for transfer of possession and award was declared on 10.10.2017, but the scheme could not be commenced as 36.6174 hectares of land could not be transferred to the development authority. The award of 46.9773 hectares of total land has already been declared.

¶143

23.AIR 2010 SC 1068

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To support the arguments of the learned counsel for the respondent development authority, the judgement in the compilation has been placed before us to assert that both the purpose for which the acquisition has been made and also the purpose for which the resolution has been passed by the development authority are public purpose and it was there in the mind of the State at the time of grant of approval that the land is needed urgently for a public purpose stated in the proposal.

¶146

Sri Atul Mehra learned counsel for the development Authority has further placed the Master Plan 2031 to assert that in the report of the town planner, the land-in-question is proposed in the Master Plan for Transport Nagar. The submission, thus, is that the purpose for which the acquisition in question was made as per the Master Plan 2021 still subsists and the need is pressing as the future use of the land-in-question is for Transport Nagar in view of the strategic location of the same. The submission is that from all angles, no infirmity can be found in the decision making process. Reliance is placed on the Division Bench of this Court in Smt. Manju Lata Agrawal Vs. State of U.P. and others²⁴ to assert that subjective satisfaction recorded by the State for invoking urgency clause cannot be said to suffer from any error of law.

¶147

In rejoinder, learned counsel for the petitioners reiterated the decision of the development authority in 110^th meeting dated 17.02.2009, to submit that the proposal for change of land use, even after issuance of Section 4 notification before issuance of declaration shows the clear intention of the development authority to acquire the land for one purpose and

¶148

24.2007 (9) ADJ 447 (DB)

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use it for another purpose. In the proposal, urgency has been shown for establishment of Transport Nagar. The urgency provision invoked under Section 17(4), thus, is directly linked with the public purpose for which the proposal had been sent.

¶151

With the resolution of the development authority itself to change the land use looking to the fact that the land-in-question is not suitable for the purpose for establishment of Transport Nagar, the urgency which has been asserted in the proposal for acquisition in Prapatra-10 issued by the Collector, automatically goes. The insistence of the respondents that the land-in-question was urgently required for establishment of Transport Nagar is based on misconceived arguments.

¶152

It was argued that it is nothing but a case of Malice on the part of the beneficiary which has acted malafide in showing urgency for one purpose for which the land-in-question was not suitable and then acquiring the land-in-question with the idea to change the purpose thereafter. The submission, thus, is that with the decision of the development authority to use the acquired land for residential purposes after acquisition and later approached the State for change of land use, the whole urgency goes and the acquisition notifications cannot be sustained being mala fide, arbitrary and illegal. The entire decision making process becomes illegal for this act of the respondent. It is urged that for all the above reasons, the claim of the respondents cannot be sustained. The writ petition deserves to be allowed by quashing the notifications under challenge.

¶153

Having considered the submissions of the learned counsels for the parties and perused the contents of the counter affidavits filed in the writ petition as also the original record of the State pertaining to recording of satisfaction for invocation

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of urgency clause under Section 17(4) of the Act’ 1894, we are required to note that though the proposal for acquisition of land of Village Runukta, Tehsil Kirawli (for an area 47.028 hectares) was considered and resolved by the Board of development authority in its meeting held on 31.03.2005, but the said proposal was forwarded to the District Magistrate, Agra only on 22.09.2005. The said proposal submitted by the development authority as is evident from the record was incomplete and as such various discrepancies were pointed out by the Special Land Acquisition Officer in the communication dated 21.10.2005. The Agra Development Authority took around four months in sending the spot inspection report of the assets found on the proposed land in Prapatra-16 through the communication dated 01.02.2006. The verification of area and Khasra number of the proposed plots from the original copies of Khasra and Khatauni was made after much delay, 10% of estimated compensation was deposited on 27.04.2006 and the revised proposal incorporating the necessary corrections, as per the communication of the Special Land Acquisition Officer, was sent after more than one year by the Agra Development Authority. The certificate of Land Use Board as required in Prapatra-8 was not appended even with the revised proposal. On the said infirmity having been pointed out by the District Collector, Agra in the communication dated 29.12.2007, the report of the Land Use Committee dated 13.03.2008 was forwarded with the covering letter dated 25.03.2008 sent by the Agra Development Authority. The proposal of acquisition after completion of necessary formalities, thus, was forwarded to the Directorate land acquisition by the District Collector, Agra on 31.03.3008, after approximately a period of two years six months from the date of initial proposal sent on 22.09.2005. In

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the counter affidavit of the State respondent as also the Development Authority, no explanation has been offered with regard to the pre-notification delay, time of more than 2-1/2 years taken by the development authority in completing the proposal for acquisition in all respects.

¶158

The certificate of the District Collector in Prapatra-10 dated 31.03.2008 appended with the proposal simply states that on invocation of the provisions of Section 17, the enquiry under Section 5-A is automatically dispense with and, as such, there was justification for dispensing with that opportunity to the tenure holders to submit their objections to the proposal. From a reading of Prapatra-10, the certificate of the Collector, we may note that the District Collector while giving his opinion on invocation of urgency clause did not take note of the difference between Section 17(1) and 17(4) of the Act’ 1894. From the language of the certificate of the District Collector, an impression was given that in case of urgency, the provisions of Section 17(4) are automatically invoked which is not the correct position of law. The detail discussion, in this regard, will be made at the appropriate stage after taking note of the contents of the record of the State.

¶159

The fact remains that the respondents namely the Agra Development Authority and the State authorities have casually proceeded with the proposal for acquisition and took around three years in issuance of proposal for acquisition under Section 4(1) read with Section 17 (4) of the Act. The pre-notification delay of three years has not been explained by the respondents.

¶160

As regards the post notification delay as demonstrated before us, the notification under Section 6 read with Section 17(4) had been issued on 26.08.2010. The explanation offered

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by the respondents for the post-notification delay of around two years, i.e. the time gap between Section 4 and 6 notification, is that the period of four months and 23 days taken in the interim order passed by this Court in a writ petition filed by the tenure holders/petitioners has to be excluded. After excluding the said period, we raise a pointed query to the learned counsel for the respondents to answer as to how they would like to explain the inordinate delay in publication of the contents of Section 4 notification in the locality on 14.07.2009, and the circulation of the same on 18.07.2009 by the process server. It is sought to be submitted by the learned counsel for the respondent Development Authority that after publication of notification under Section 4 dated 11.09.2008, a corrigendum was issued on 28.02.2009 to make correction in the contents of the notification with respect to the plot numbers and other discrepancies pointed out after verification. A perusal of the statement made in paragraph ‘16’ of the counter affidavit of the State respondents makes it clear that more than five months time were taken in various correspondences between the office of the Special Land Acquisition Officer and Agra Development Authority as well as the government for issuance of the corrigendum for correction in the notification which was published only on 28.02.2009. The public notice of invocation of urgency clause under Section 17(4) and corrigendum notification was published in the locality only on 14.07.2009 and circulated by process server on 18.07.2009. Five months further time taken in the publication of contents of the notification by public notice could not be explained. The interim order in the writ petition filed by the tenure holders was passed on 09.09.2009, and was operative till 02.02.2010. We may note that till 09.09.2009, there was no legal impediment

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with the respondent in proceeding with the acquisition proposal, i.e. to issue declaration under Section 6 of the Act.

¶165

As is evident from the record, for a period of approximately one year from the date of publication of the notification in the official gazette on 11.09.2008, the respondents have proceeded casually in issuance of corrigendum and public notice of the contents of Section 4 notification read with Section 17(4). This one year time taken by the Agra Development Authority prior to the interim order passed on 09.09.2009 is fatal to the cause shown for invocation of urgency clause. Even after the interim order was vacated on 02.02.2010, six month time was taken for issuance of Section 6 notification in the official gazette on 26.10.2010. Calculation of one year time from the date of last publication of the contents of Section 4/17 notification, within the meaning of Section 6(2) of the Act’ 1894, is impermissible for the above reasons. The respondent cannot be permitted to argue that they were at liberty to proceed casually in each of the steps required to be taken for completion of the acquisition proceedings between Section 4 and 6 notification, and then justify their inaction without offering any explanation. There is absolutely no justification for five months time spent in the publication of the contents of the notification in the locality after publication of the corrigendum on 26.02.2009.

¶166

On pre and post notification delay, we are conscious of the decision of the Apex Court in the Deepak Pahwa (supra) and First Land Acquisition Collector & others vs Nirodhi Prakash Gangoli & Anr²⁵ wherein the Apex Court has observed that pre and post notification delay would not be fatal,

¶167

AIR 2002 SC 1314

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ipso facto, especially when no malafide on the part of the State or its officers has been alleged. The opinion of the State Government can be challenged in the Court of law, if it could be shown that the State government never applied its mind to the matter or that action of the State is malafide. However, we find it pertinent to note the observation of the Apex Court in Union of India v. Krishan Lal Arneja 26 , wherein it is held by the Apex Court that 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.

¶170

In view of the above noted facts discerned from the record, we find that though in the initial proposal of the Board of Development Authority dated 01.03.2005, there was an indication that the land-in-question was urgently needed for the project of establishment of Transport Nagar. But the development authority as also the State authorities took three years in materializing the proposal for acquisition. The urgency shown by the beneficiaries in its proposal of acquisition sent in the year 2005 to the State Government, could not be found either in the action of the development authority or the State machinery. The legal position with respect to invocation of urgency clause for dispensation of enquiry has been considered by the Apex Court in the case of Radheshyam (supra).

¶171

Before adverting to the law laid down therein, we are required to note the procedure which is required to be followed by the State for invoking the urgency clause under Section 17(4) to dispense with the enquiry required under Section 5-A of the Act.

¶172

2004 (8) SCC 453

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In Union of India and others vs. Mukesh Hans, etc. etc²⁷ , there is a discussion with regard to the procedure which is required to be followed by the State while invoking the provisions of Sections 17(1) and 17(4) of the Act, 1894.

¶175

It was observed that Section 17(1) only contemplates that the authorities may take possession of the land even before passing of an award after expiration of 15 days of publication of Section 9(1) notice. Sub-Section (2) of Section 17 contemplates a different type of urgency, which should be an unforeseen emergency. Under this Section, if Appropriate Government is satisfied that there is such unforeseen emergency, it can take possession of the land even without waiting for 15 days period contemplated under Section 9(1), as against the provisions of Sub-Section (1) of Section 17. Section 17(4), however, can be invoked in cases, where the Appropriate Government has come to the conclusion that there exists an urgency or unforeseen urgency as required under Sub-sections (1) and (2) of Section 17; respectively, and, thus, may direct that the provisions of Section 5-A shall not apply. On issuance of such direction, the enquiry under Section 5-A can be dispensed with. It is, held that Section 17(4) is an exception to the normal mode of acquisition contemplated under the Act and that mere existence of urgency or unforeseen urgency though is a condition precedent for invoking Section 17(4), but that by itself is not sufficient to direct the dispensation of 5-A enquiry. It is observed that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by themselves be sufficient for dispensing with 5-A enquiry. The existence of

¶176

27.2004 (8) SCC 14

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urgency or unforeseen emergency provision in Section 17(1) and (2) would not automatically dispense with the enquiry under Section 5-A.

¶179

The result is that there would be requirement of application of mind by the appropriate Government while dispensing with 5-A enquiry and it is possible that in a given case the urgency noticed by the Appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2), itself may be of such decree that it could require the Appropriate Government on that very basis to dispense with the enquiry under Section 5-A. But the need for application of mind by the Appropriate Government that such an urgency for dispensation of 5-A enquiry is inherent in the two types of urgencies contemplated under Section 17(1) and (2) of the Act. The nature and right under Section 5-A, thus, has been explained in paragraphs ‘34’ and ‘35’ as under:-

¶180

“ 34. A careful reading of the above judgment shows that this Court in the said case of Nandeshwar Prasad's case (supra) has also held that there should an application of mind to the facts of the case with special reference to this concession of 5A inquiry under the Act.

¶181

35. At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. The object and importance of 5A inquiry was noticed by this Court in the case of Munshi Singh & Ors. vs. Union of India {(1973) 2 SCC 337 where this Court held thus:-

¶182

"Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to

¶183

¶184

that person should not be made. The legislature has made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections . It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A.”

¶185

It was further held that formation of opinion and application of mind on invocation of urgency cannot be assessed except by looking into the proceeding which culminated in the impugned order. The records of the State is, thus, required to be looked into.

¶186

The extract of paragraph ‘32’ of Union of India vs. Mukesh Hans (supra) noted in Anand Singh (supra) reads as under:-

¶187

“ 34 ……..xxxxxxx 32. A careful perusal of this provision which is an 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 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 (2004) 8 SCC 14 dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before 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 part of sub-Section (4) of Section 17 would not have been necessary and the legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement

¶188

¶189

of an application of mind by the appropriate Government while 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 Section 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense 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 contemplated under Sections 17(1) and (2) of the Act.”

¶190

As to the scope of judicial review in the decision of the State in invocation of urgency, in Hindustan Petroleum Corp. Ltd. ( supra ), it is held that the conclusiveness contained in Section 6 of the Act indisputably is attached to the need as also the purpose and, in this regard, ordinarily, the jurisdiction of the Court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a Statute, the same must scrupulously be complied with. For the said purpose, “the Court in a case, where there has been total non-compliance or substantial non-compliance of the provisions of Section 5-A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-Section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision making process itself is in question, the power of judicial review can be exercised by the Court in the event the order impugned suffers from well-known principles, viz., illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it

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must be done in a fair and reasonable manner”.

¶193

From Anand Singh (supra), relevant discussion in paragraphs ‘45’, ‘46’ and ‘47’ are to be noted hereinunder:-

¶194

“ 45. It is true that power conferred upon the government under 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.

¶195

46. 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 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 5A may not be held and objections of land owners/persons interested may not be considered. In many cases on general assumption, likely delay in completion of enquiry under Section 5A 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 away and with some effort enquiry could always be completed expeditiously.

¶196

47. The special provision has been made in Section 17 to eliminate enquiry under Section 5A in deserving and cases of real urgency. The government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5A. We have already noticed few decisions of this Court. There is conflict of view in the two decisions of this Court viz.; Narayan Govind Gavate3 and Pista Devi6. In Om Prakash10 this Court held that decision in Pista Devi6 must be confined to the fact situation in those days when it was rendered and the twoJudge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate. We agree.”

¶197

81. In Rajasthan Housing Board and others vs. Shri

¶198

¶199

Kishan and others²⁸ , the Apex Court has explained as to what kind of material was required for forming an opinion for invoking the urgency powers. It was noted therein that the Division Bench of the High Court therein was impressed more by the fact that the notification did not state that the Government was of the opinion that it was a case where the inquiry under Section 5-A ought to be dispensed with under Section 17(4). The material placed before the Court in the said case, however, disclosed the reasons for invocation of urgency clause that the government, on due verification, found that holding an inquiry under Section 5-A would have resulted in uncalled for delay endangering the entire scheme and time schedule of the Housing Board. In the context of the material placed before the Court therein, it was observed that :-

¶200

“It must be remembered that the satisfaction under Section 17(4) is a subjective one and that so long as there is material upon which the government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority. This is the principle affirmed by decisions of this Court not only under Section 17(4) but also generally with respect to subjective satisfaction.”

¶201

In Om Prakash (supra), the Apex Court has referred to the material placed before it, as was available to the Government therein for forming opinion under Section 5-A of the Act and then concluded that the action of dispensing with the enquiry under Section 5-A, in the said case, was not based on any real and genuine subjective satisfaction, depending upon any relevant data available to the State Authorities at the time, when they issued the impugned notification under Section 4(1) of the Act and dispensed with

¶202

28 (1993) 2 SCC 84

¶203

¶204

Section 5-A enquiry by resorting to Section 17(4) thereof.

¶205

The Division Bench of this Court in Smt. Manju Lata Agrawal (supra) while considering the law laid down in the abovenoted decisions of the Apex Court has held that:-

¶206

“ 39. It is a settled legal proposition that the scope of judicial review is limited to the decision making procedure and not against the decision of the authority The Court could review to correct errors of law or fundamental procedural requirements, which may lead to manifest injustice and can interfere with the impugned order in exceptional circumstances. In judicial review, the Court cannot trench on the jurisdiction to appreciate the evidence and arrive at its own conclusion as it is not an appeal from a decision. Review of the decision is not permissible where the findings are recorded by an authority on the basis of legal evidence and the said findings are not based either on ipsi dixit or conjectures or surmises. The Court cannot interfere on the ground that the matter requires appraisal of evidence. "Between appraisal of evidence and total lack of evidence, there is an appreciable difference which could never be lost sight of. ”

¶207

It was observed therein that the power of judicial review of the Writ court is limited, but it has competence to examine as to whether there was material to form such an opinion as required by law or the findings recorded by the authority concerned are perverse. It is settled law that non-consideration of relevant material renders an order perverse. A finding is said to be perverse when the same is not supported by evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularities.

¶208

On the question of enquiry under Section 5-A of the Act, it was observed in Smt. Manju Lata Agrawal (supra) that a review on the merits of the decision making process is fundamental to the Court's jurisdiction. The power of review

¶209

¶210

may even extend to a decision on a question of fact. The error sought to be corrected must be undeniably a significant factor in the decision making process. It was further observed that:-

¶211

“ 43. The question whether inquiry under Section 5-A of the Act is necessary or not is a question of fact and it requires to be determined by the Government in the facts and circumstances of each case for the reason that no straight jacket formula can be evolved as under what circumstances the urgency clause should be invoked. The role of the Court is very limited and it can only see as to whether there was any material to form an opinion about invoking the urgency clause or whether the Government exercised the power in a malafide manner. The question as to whether urgency exists or not, is primarily a matter for determination of the Government subject to the scope of judicial review by the courts of law. ”

¶212

As to the scope of judicial review in a matter where the decision is based on subjective satisfaction of the Government, the observations of the Apex Court in Rajasthan Housing Board (supra) was noted in Smt. Manju Lata Agrawal (supra) as under:-

¶213

“ 44 . In Rajasthan Housing Board (supra) the Hon'ble Supreme Court, while dealing with the issue involved herein, held as under:

¶214

“It must be remembered that the satisfaction under Section 17(4) is a subjective one and so long as there is material upon which the Government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine t e material as an appellate authority. This is the principle affirmed by decisions of this Court not under Section 17(4) but also generally with respect o subjective satisfaction.”

¶215

It was further noted in paragraph ‘45’ as under:-

¶216

“ 45. The adequacy and reliability of the material on the bask, of which the conclusion is reached, cannot be permitted to be canvassed before the Court in writ jurisdiction. Vide Rajinder Kumar Kindra v. Delhi Administration Through Secretary (Labour) and Ors., (1984) 4 SCC 635; The General

¶217

¶218

Court Martial and Ors. v. Col. Aniltej Singh Dhaliwal, AIR 1998 SC 983 and R.S. Saini v. State of Punjab and Ors., (1999) 8 SCC 90”

¶219

In paragraphs ‘47’, ‘48’, ‘49’, ‘50’, ‘51’, ‘53’, ‘55’, ‘56’ and ‘57’, it was noted that:-

¶220

“ 47. In Bombay Dyeing & MFG Co. Ltd. (3) v. Bombay Environmental Action Group and Ors., AIR 2006 SC 1489, the Apex Court considered the scope of judicial review in a case of urban development, maintaining the ecological balance and after considering all aspects of town planning, came to the conclusion that in case of an executive action, the Court can look into and consider several factors, namely:

¶221

(i) whether the discretion conferred upon the statutory authority had been properly exercised;

¶222

(ii) whether exercise of such discretion is in consonance with the provisions of the Act;

¶223

(iii) whether while taking such action, the executive Government had taken into consideration the purport and object of the Act;

¶224

(iv) whether the same subserved other relevant factors which would affect the public at large;

¶225

(v) whether the principles of sustainable development which have become part of our constitutional law have been taken into consideration; and

¶226

(vi) whether in arriving at such a decision, both substantive due process and procedural due process had been complied with.

¶227

48. In Sawarn Singh v. State of Punjab, AIR 1976 SC 232 while dealing with such a issue, the Court held as under:

¶228

“In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merit either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the court is satisfied that the authority would have passed the order on the basis of the relevant and existing ground, and the exclusion of irrelevant or nonexisting ground could not have affected the ultimate decision.”

¶229

¶230

(Emphasis added)

¶231

49. A similar view has been reiterated by the Hon'ble Apex Court in Dwarka Das Bhatia v. The State of Jammu and Kashmir, AIR 1957 SC 164; State of Orissa and Ors v. Bidyabhushan Mohapatra, AIR 1963 SC 779; The State of Maharashtra v. Babulal Kriparam Takkamore and Ors., AIR 1967 SC 1353; Binny Ltd. v. Their Workmen and Anr., AIR 1972 SC 1975 and P.D. Agrawal v. State Bank of India and Ors., AIR 2006 SC 2064

¶232

50. In view of the above, it is apparent that if the order assed by an Authority is based on a consideration of certain relevant material and some other irrelevant and non-existing material, the order can be sustained, provided the relevant existing material was sufficient for formation of such an opinion. Thus, if the order can be passed on relevant and existing grounds, the consideration of irrelevant or nonexistent material becomes immaterial.

¶233

51. However, the aforesaid legal proposition applies only in a case where the Authority has to pass an order on objective satisfaction. It carves out an exception that such a proposition would not apply where the decision is to be taken by the Authority on subjective satisfaction.

¶234

53. In Zora Singh v. J.M. Tandon, AIR 1971 SC 1537, the Court considered a similar issue and held as under:

¶235

“The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where vie conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari, the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into question of the sufficiency of evidence.”

¶236

(Emphasis added)

¶237

¶238

55 . Thus, in case where the order is based on subjective satisfaction, consideration of irrelevant or nonexistent material becomes fatal and vitiates the order itself. Such a view stands fortified by the judgments of the Hon'ble Supreme Court in Keshav Talpade v. Emperor, AIR 1943 FC 1; Shibban Lal v. State of Utter Pradesh, AIR 1954 SC 179; Rameshwar Lal v. State of Bihar, AIR 1968 SC 1303; Puspadevi v. M.L. Wadhavan AIR, 1987 SC 1748; and Vashisth Narain v. State of Utter Pradesh, AIR 1990 SC 1272 .

¶239

56. Same remains the position where the Authority fails to consider the vital facts, for the reason that if the material or vital facts which would influence the mind of the Authority one way or the other, are not placed or are not considered by the Authority, it would vitiate the subjective satisfaction. The Authority must exercise due care and caution and act fairly and justly in exercise of its powers. However what is a vital fact would depend on the facts of each case. Therefore, only those matters alone should be regarded as vital which are reasonably likely to affect the decision of the Authority. Nonconsideration of the vital fact may taint the satisfaction of the Authority. (Vide Tushar Govindji v. Union of India, AIR 1985 SC 511; Sitaram v. State of Rajasthan, AIR 1986 SC 1072; and Ahmed Nissar v. State of Tamil Nadu, AIR 1999 SC 3897).

¶240

57. In Swadeshi Cotton Hills Co. Ltd. v. State Industrial Tribunal, U.P. and Ors., AIR 1961 SC 1381, a Constitution Bench of Hon'ble Supreme Court considered a case where forming the opinion after considering the material was not recited in the order and held as under:

¶241

“...The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the format on of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made lo the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made.

¶242

...The presumption as to the regularity of public acts would apply in such a case; but as son as the order is challenged and it is said that it was passed without the conditions precedent being satisfies the burden would be on the authority to satisfy by other means (in the absence of recital in the order itself) that the conditions precedent had been complied with....”

¶243

¶244

(Emphasis added).

¶245

The distinction in exercise of power of judicial review of an order based on objective assessment and another order based on subjective consideration had been considered therein to note that the principle, if an order wherein some of the reasons relied for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which conclusion is arrived at not on assessment of subjective satisfaction. The reason is that in cases where the decision is based on subjective satisfaction, if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a Superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. Thus, in cases where the order is based on subjective satisfaction, consideration of irrelevant or non-existent material becomes fatal and vitiates the order itself. However, in a case, where the conclusion is based on objective facts and evidence, such difficulty would not arise, inasmuch as, there if the order of the Court or Tribunal is based on some legal evidence, even if some of it was irrelevant, a Superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason being that in a writ petition for Certiorari, the superior Court does not sit in appeal but exercises only supervisory jurisdiction and, therefore, does not enter into question of the sufficiency of evidence.

¶246

The principle to exercise the power of judicial review in the matter of dispensation of enquiry under Section 5-A of the Act, 1894, within the scope of Article 226 of the Constitution, thus, can be summarized as under:-

¶247

¶248

(i) In exercise of discretion conferred upon the statutory authority, while arriving at a decision under Section 5-A, both substantive due process and procedural due process has to be complied with.

¶249

(ii) The question whether enquiry under Section 5-A of the Act is necessary or not is a question of fact which would be required to be examined by the State Government in the facts and circumstances of each case before invocation of urgency clause under Section 17(4) of the Act. No straight jacket formula, as such, can be evolved as to under what circumstances, the urgency clause should be invoked.

¶250

(iii) The role of the Court is limited and it can only see as to whether there was any material to form an opinion about invoking the urgency clause or whether the Government exercised the power in a malafide manner.

¶251

(iv) The question as to whether urgency exists or not, is primarily a matter for determination of the Government, subject to the scope of judicial review by the Court of law.

¶252

(v) The satisfaction under Section 17(4) is a subjective one and, so long as, there is material upon which the Government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority.

¶253

(vi) The adequacy and reliability of the material on the basis of which the conclusion is reached, cannot be permitted to be canvassed before the Court in writ jurisdiction. The truth or correctness of the material will not be questioned by the Court.

¶254

¶255

(vii) In a case where the order is based on subjective satisfaction, consideration of irrelevant or non-existent material becomes fatal and vitiates the order itself.

¶256

(viii) Same remains the position where the authority fails to consider the vital facts, for the reason that if the material or vital facts which would influence the mind of the authority, one way or the other, were not placed or were not considered by the authority, it would vitiate the subjective satisfaction.

¶257

(ix) What is vital fact would depend on the facts of each case.

¶258

(x) The authority must exercise due care and caution and act fairly and justly in exercise of its powers.

¶259

(xi) Non-consideration of the vital fact may taint the satisfaction of the authority.

¶260

(xii) The validity of the order does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence.

¶261

As in a case of subjective satisfaction, authority is not required to pass a reasoned order, there is no need to pass any reasoned order to reach at the conclusion that there is urgency so as to dispense with the enquiry under Section 5A in exercise of power under Section 17(4). The power of judicial review in a matter of invocation of urgency under Section 17(4) in dispensing with the enquiry under Section 5-A is limited to the extent as to whether there is any fault in the decision making process, to examine that the opinion of the State is not guided by any irrelevant or non-existent

¶262

¶263

material, rather is based on relevant material to record its satisfaction. The Court can interfere, in a case, where there was no material at all or the material relied upon was irrelevant or non-existent. The adequacy and reliability of the material on the basis of which conclusion is arrived is beyond the scope of power of judicial review. The Court can also look into as to whether in formation of opinion, the Government has exercised the power in a malafide manner. The question as to whether urgency exists or not is primarily a matter for determination of the Government, subject to the scope of judicial review by the Court of law.

¶264

In the case of Radheshyam (supra) , while examining the above noted decisions in Om Prakash (supra), Union of India (supra) & Anand Singh (supra) , it was noted that the power conferred upon the government under 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.

¶265

The decision in the case of Nirodhi Prakash Gangoli ( supra) has also been taken note of to record that the exercise of power under Section 17 therein was found to be justified because the land was already in the possession of the Medical College and the earlier exercise undertaken by the State for the acquisition of land got frustrated due to intervention of the Court.

¶266

The principle culled out by the Apex Court in the case of Radhyshyam (supra) in paragraph ‘77’ are relevant to be noted hereunder:-

¶267

¶268

“77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out:

¶269

(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on account of public exigency and for public good. Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat(1995) Supp. (1) SCC 596.

¶270

(ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan v. State of U.P., 2011 (4) SCC 769.

¶271

(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 scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter.

¶272

(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, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons.

¶273

(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 few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-Awill, in all probability, frustrate the public purpose for which land is proposed to be acquired.

¶274

(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

¶275

¶276

public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records.

¶277

(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 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).

¶278

(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 Section 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 Section 5-A(1) and (2) is not at all warranted in such matters.

¶279

(ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.”

¶280

From the discussions made above, as has been held in Radhy Shyam (supra), sub-section (4) of Section 17 enables the State to direct that the provision of Section 5 A would not apply to cases covered under sub-section (1) or (2) of Section 17. However, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(4). The acquisition of land for the public purpose within the meaning of Section 4, by itself, does not justify the exercise of power by the State under Section 17 (1) and/or 17(4).

¶281

Taking note of the above legal provisions pertaining to invocation of urgency clause and the scope of enquiry in the matter of recording of satisfaction which is subjective in nature, we may go through the record of the State wherein satisfaction has been recorded for invocation of urgency clause. A perusal

¶282

¶283

of the original record of the State indicates that on the proposal forwarded by the District Magistrate to the Directorate Land Acquisition on 31.03.2008, a Note sheet dated 18.07.2008 was prepared wherein certain queries were raised. On the note sheet dated 12.8.2008 , opinion was submitted by the concerned Secretary that the land of Village Runukta Tehsil Keerawli for an area of 46.986 hectares had been proposed for construction of Transport Nagar phase 2. In Prapatra-10, the Collector had given the certificate for invocation of urgency clause under Section 17. The detail of acquisition proposal was appended with the Note-sheet and on further proposal submitted by the concerned Secretary that the acquisition notification under Section 4(1) be issued by invoking urgency clause under Section 17, approval was granted by the different departments on various dates in the month of August, 2008 and lastly on 03.09.2008, approval was made by the concerned Secretary that the acquisition notification be issued by invocation of urgency, which was published in the official gazette on 11.9.2008.

¶284

On a letter of the Secretary, Agra development authority dated 2.12.2008 the corrigendum was directed to be published in the official gazette under the signature of the concerned Secretary on the approval granted on 05.02.2009.

¶285

The only material before the State Government for invocation of urgency clause as is evident from the record was the certificate of the Collector in Prapatra-’10’ which narrates the provisions of Section 17 of the Act’ 1894 for invocation of urgency clause. Apart from the same, no other relevant material on record was taken note of while submitting the proposal before the State government. The Note-Sheet submitted before the State Government by the concerned Secretary is cryptic in

¶286

¶287

nature, as it does not demonstrate the correct position in which the matter had been proceeded at the ends of the Development Authority and the State officials, taking three years time in submitting the proposal to the State government. The relevant material which was required to be placed before the State Government for applying its mind to record satisfaction for invocation of urgency clause has not been placed on record at all. The decision of the State government for invocation of urgency clause under Section 17, therefore, cannot be said to be based on relevant material guided by relevant reasons for the same. There is absolutely no application of mind as to whether the urgency was subsisting at the time of consideration in the year 2008 through proposal invoking urgency for acquisition was moved in the year 2005. There is also no consideration at all that there was necessity to dispense with the valuable right of the tenure holders to grant opportunity to raise objection to the proposal, and that there were objections to the suitability of the proposed land raising environmental concern.

¶288

The unexplained delay on the part of the development authority cannot be attributed to the tenure holders/petitioners, as discussed above. The order of the State, thus, can be termed as a result of total non-application of mind being in ignorance of the relevant material which was not placed before the State at the time of decision making.

¶289

This apart, the decision of the Development authority in its meeting held on 17.02.2009 for change of user of the proposed land after completion of the acquisition proceedings from the Transport Nagar project to residential purpose, was not brought before the State at the stage of submission of material for issuance of declaration under Section 6 of the Act’ 1894.

¶290

¶291

The action of the Development authority in proceeding with the matter, in the manner as noted above, is nothing but speaks of malafide on the part of the development authority. It is clear that the State government was not provided with the relevant material which demonstrate that the Development Authority had never been serious in execution of the project, urgency of which was shown to the State for invocation of the provision of Section 17(4). The exercise of power of Eminent Domain on the part of the State required strict construction and application of the statutory provisions of the Land Acquisition Act’ 1894.

¶292

For the above noted facts, this case turned out to be a case of arbitrary decision for invocation of the urgency clause and the acquisition is found to a result of malafide on the part of the development authority. It is evident that a casual approach has been adopted by the development authority to invoke the urgency clause, just to deny the valuable right of hearing of the tenure holders, though it itself had adopted a lackadaisical approach.

¶293

For the above noted facts, evident from the record, in view of the legal principles for exercise of the power of judicial review, in the matter of invocation of urgency clause under Section 17(4) for dispensation of enquiry under Section 5–A, we reached at an irresistible conclusion that the invocation of urgency clause, in the instant case, at the stage of publication of the proposal under Section 4(1) of the Act’ 1894 is an illegal exercise on the part of the State which was guided by the incomplete material placed before it, at the instance of the Development Authority.

¶294

For the above reasons, the acquisition proceedings culminated in the issuance of the notification dated 11.09.2008

¶295

¶296

under Section 4 read with Section 17(4) of the Land Acquisition Act’ 1894 and the declaration dated 26.08.2010 under Section 6 read with Section 17(4) of the Act’ 1894, are liable to be quashed. The entire acquisition proceedings are hereby quashed, in so far as the writ petitioners before us are concerned.

¶297

As is evident from the record, the land-in-question, subject matter of consideration before us, is still in the possession of the tenure holders and no development work has been carried out over the same, the respondents are directed to complete the formalities for return of the land to the writ petitioners forthwith and ensure making necessary entries in the relevant land records, accordingly.

¶298

The writ petition is allowed.

¶299

No order as to cost.

¶300

Order Date:- 07.07.2023

¶301

Harshita/Himanshu

¶302

Digitally signed by :- HARSHITA High Court of Judicature at Allahabad

Sri Achal Agarwal and Others v. State of U.P. and Others

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Sri Achal Agarwal and Others v. State of U.P. and Others

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