Santosh Kumar & Others vs State Of U.P. Thru' Secy. ...
2016 Latest Caselaw 4403 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 34
 

 
1. Case :- WRIT - C No. - 9548 of 2003
 
Petitioner :- Santosh Kumar & Others
 
Respondent :- State Of U.P. Thru' Secy. (Revenue) & Others
 
Counsel for Petitioner :- W.H. Khan,Gulrez Khan,J.H. Khan
 
Counsel for Respondent :- C.S.C.,A.A. Khan
 
2. Case :- WRIT - C No. - 17312 of 2003
 
Petitioner :- Ram Bahori
 
Respondent :- State Of U.P. Thru' Secy. (Revenue) & Others
 
Counsel for Petitioner :- R.B. Vidyarthi,R.K. Vidyarthi
 
Counsel for Respondent :- C.S.C.,J.H.Khan,W.H.Khan
 
3. Case :- WRIT - C No. - 99 of 2006
 
Petitioner :- Mulayam Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Prem Prakash
 
Counsel for Respondent :- C.S.C.
 
4. Case :- WRIT - C No. - 43685 of 2015
 
Petitioner :- Shaheed And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- J.H.Khan,Gulrez Khan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Shamsher Bahadur Singh,J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. These four writ petitions have raised common questions of fact and law relating to acquisition of land in Villages Tarauha, Garhiva and Banari of Pargana Karvi, District Chitrakoot, sought to be acquired by State Government by issuing notifications dated 18.06.2002 under Section 4(1) of Land Acquisition Act, 1894 (hereinafter referred to as the "Act, 1894") and dated 10.12.2002 under Section 6(1) of Act, 1894 for acquiring a total 234 acres of land (131.33 acres in Village Tarauha, 40.76 acres in Village Garhiva and 61.91 acres in Village Banari), hence have been heard together and are being decided by this common judgment.

2. In leading Writ Petition No. 9548 of 2003 there are 38 petitioners. Writ Petitions No. 17312 of 2003 has been filed by petitioner-Ram Bahori, 99 of 2006 has been filed by petitioner-Mulayam Singh and 43685 of 2015 has been filed by two petitioners, namely, Shaheed and Nizamuddin.

3. Learned counsel for the parties stated that for the purpose of pleadings, record of leading Writ Petition No. 9548 of 2003 should be referred to and that is how we are taking facts pleaded in aforesaid writ petition.

4. The case set up by petitioners is that in 1835 when State of U.P. was under the regime of Britishers (East India Company), Karvi was a Tahsil but it was given status of a sub-district. About 80 Bighas of land was secured for establishment of District Headquarters, whereupon Revenue and Civil Courts were established and 75 Bighas of land remained vacant for being used for other purposes of establishment of District Headquarters. A full fledged district named as "Chitrakoot" was constituted in 1997, bifurcating District Banda.

5. For establishing District Headquarters by constructing residential and non-residential buildings in newly created district, State Government proposed to acquire 234 acres of land and in furtherance thereof issued notification dated 18.06.2002 under Section 4(1) of Act, 1894 proposing to acquire aforesaid land comprising in three Villages Tarauha, Garhiva and Banari. State Government also invoked powers under Section 17(1) and (4) stating that land is required urgently hence to eliminate delay, likely to be caused due to inquiry under Section 5-A, the said inquiry is being dispensed with and provision of Section 5-A shall not apply. Thereafter declaration under Section 6(1) was made by notification dated 16.12.2002.

6. Local residents and tenure holders, even before aforesaid notifications, had opposed attempt on the part of respondents in acquiring land and in this respect petitioners have referred to letter dated 19.11.1999 sent by the then Member of Parliament to Chief Minister, letter dated 21.08.2000 sent by Gram Pradhan of Gram Panchayat Radauli and petitioners' representations dated 03.08.2002 and 05.08.2002.

7. Petitioners were issued notices under Section 9(3) on 25.01.2003, whereagainst also they filed objections on 30.01.2003.

8. Acquisition notifications have been challenged on the ground that dispensation of inquiry under Section 5-A is illegal inasmuch as:

(i) There is no urgency involved necessitating invoking of powers under Section 17 of Act, 1894.

(ii) No valid ground exist for dispensation of inquiry and opportunity of filing objection available to tenure holders under Section 5-A.

(iii) No relevant material was placed before State Government or authorities justifying exercise of power under Section 17.

(iv) Section 5-A brings in the principle of natural justice and substantial right upon land owners and this could not have been denied in view of law laid down in Gojer Brothers Private Limited and another Vs. State of West Bengal and others, 2013(16) SCC 660; Prabhawati and others Vs. State of Bihar and others, 2014(13) SCC 721; and, Union of India and others Vs. Shiv Raj and others, 2014(6) SCC 564.

(v) There is no objective application of mind by Collector in respect of objections raised by petitioners pursuant to Supreme Court's order dated 08.04.2011 passed in Special Leave to Appeal (Civil) No. 3740 of 2006 and report/ order shows that objections raised by petitioners have not been considered objectively.

9. Petitioners have also taken plea in the light of Section 24 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "Act, 2013") stating that Special Land Acquisition Officer (hereinafter referred to as the "SLAO") made award on 27.12.2005 under Section 11 of Act, 1894 but actual and physical possession of disputed land has not been taken. Neither amount of compensation has been paid to petitioners nor deposited before appropriate forum hence acquisition proceedings must be deemed to have lapsed under Section 24(2) of Act, 2013. In support of above submission petitioners have placed reliance on Pune Municipal Corporation and another Vs. Harakchand Misirimal Solanki and others, 2014(3) SCC 183; Naresh Kumar Vs. State of Haryana and others, 2014(6) SCC 589; Magnum Promoters Private Limited Vs. Union of India and others, 2015(3) SCC 327; Rajiv Chowdhrie HUF Vs. Union of India and others, 2015(3) SCC 541; Velaxan Kumar Vs. Union of India and others, 2015(4) SCC 325; and, Ram Kishan and others Vs. State of Haryana and others, 2015(4) SCC 347.

10. The petition has been contested by respondents by filing a counter affidavit sworn on 08.04.2003 by Sri Gyan Prakash Srivastava, Tahsildar Karvi, District Chitrakoot. It is said that District Chitrakoot was created by notification dated 13.05.1997 issued under Section 11 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the "Act, 1901") as a new Revenue District by including Tahsils Mau and Karvi, which earlier were part of District Banda. On 23.05.1997 District Magistrate was posted in newly created District and on 27.05.1997 Superintendent of Police was posted. Other District officials were posted like, Chief Development Officer on 06.06.1997, District Judge on 10.02.1998 and Chief Medical Officer on 24.08.2000.

11. For newly created district, since entire infrastructure of district offices as well as residential accommodations of all the officials to be posted thereat was required, and need was urgent, in order to construct residential and non-residential buildings for establishing District Headquarters, 234 acres of land (547 Bighas) was sought to be acquired and in furtherance thereof impugned notifications were issued. Since need was urgent and for public purposes, therefore, inquiry under Section 5-A was dispensed with. The contention of petitioners that in 1835 certain land was earmarked for establishing District Headquarters and 70-80 Bighas land are still available is without any basis as there is no such record available to fortify the above claim of petitioners. Acquisition proceedings have been initiated after indepth study of authorities of Government inasmuch as State Government vide order dated 25.02.2000 constituted a committee under the Chairmanship of Commissioner of Division to enquire into and submit report with regard to acquisition of land for constructing residential and non-residential buildings to establish District Headquarters at newly created District Chitrakoot. Committee deliberated on 22.04.2000 and decided to establish District Headquarters on the side of Devangana Road which would include Villages Tarauha, Garhiva and Banari, since this land is near to City Railway Station, Bus Stand and others places of general public importance which would be convenient to public at large who will have to visit District Headquarters for various purposes.

12. District Magistrate also certified that by virtue of acquisition notifications only nine family/ individuals are likely to become landless, out of which three are in General Category and remaining six are Scheduled Castes. District Magistrate also certified that these families likely to render landless would be provided equivalent land at some other place. Thereafter District Committee also made a survey on 24.12.2001 and submitted report to Bhoomi Upyog Parishad stating that no unarable land is available for the purpose of establishing District Headquarters. The proposed acquired land is situate within one kilometer from Town Karvi. In view thereof notification under Section 4 was issued on 18.06.2002 and declaration under Section 6 was issued on 16.12.2002. Since suitable accommodations for Government officers and residences was not available, and, newly created district required land for establishing offices like Collectorate, Civil Court, Vikas Bhawan, Police Officer, District Hospital, School, District Jail, Bank, Post Officer, Educational Institutions etc, and requirement was urgent, hence inquiry was dispensed with. Details of land proposed to be assigned to different departments has also been given in Annexure-6 to the counter affidavit, which read as under:

Sl. No.

Name of Department

Area in acres proposed to be given

Collectorate

Civil Court

Vikas Bhawan

Office of Superintendent of Police

District Hospital

Stadium

I.T.I.

Polytechnic

Park and Museum

District Jail

Bank/ Post Office

Residential

Government Inter College

Total

13. Notification was also issued in daily newspaper as required under Section 4 of Act, 1894. District offices were mostly running in rented buildings which were inadequate, very small and incapable for proper functioning of district authorities and others in such buildings.

14. Writ Petition No. 9548 of 2003 initially came up before a Division Bench on 06.03.2003 when respondents were granted time to file counter affidavit and interim order was passed providing that petitioners shall not be dispossessed from their agricultural holdings until further orders of this Court.

15. Subsequently, Writ Petitions No. 9548 of 2003 and 17312 of 2003 came up before Division Bench on 08.12.2005 when the same were dismissed, passing following order:

Order passed in Writ Petition No. 9548 of 2003

"Heard Sri W.H. Khan learned counsel for the petitioners and Sri A.A. Khan learned counsel and the standing counsel appearing for the respondents.

It has been submitted by the learned counsel for the petitioners that no permission has been taken from the Parishad and therefore, acquisition of the land of the petitioners is bad under law.

Having considered the submission of the learned counsel for the petitioners, we are of the view that there is no such impediment that permission from Parishad may be taken for acquiring the land.

In view of this, the writ petition lacks merit and is dismissed summarily. No order is passed as to costs."

Order passed in Writ Petition No. 17312 of 2003

"Heard Sri W.H. Khan learned counsel for the petitioners and standing counsel appearing on behalf of respondents.

It has been submitted by the learned counsel for the petitioners that all the petitioners are belonging to scheduled caste and are landless agriculturist therefore, their land cannot be acquired.

Having considered the submission of the learned counsel for the petitioners, we are of the view that there is no such provision under the Land Acquisition Act 1894 to grant any relief to the landless scheduled caste person.

In view of this, the writ petition lacks merit and is accordingly dismissed. No order is passed as to costs."

16. Matter was taken up in appeal before Supreme Court. On 08.04.2011, Court considered matter and permitted petitioners to file objections under Section 5-A and competent authority was directed to decide same. The order dated 08.04.2011 passed by Supreme Court in Special Leave to Appeal (Civil) No. 3740 of 2006 with other connected appeals, reads as under:

"These petitions are directed against order dated 8.12.2005 passed by the Division Bench of the Allahabad High Court dismissing the writ petitions filed by the petitioners questioning the acquisition of their land by the State Government by invoking section 4 read with section 17(1) and (4) of the Land Acquisition Act, 1894 (for short "the Act").

After the arguments were heard for some time, Shri Dinesh Dwivedi, learned senior counsel appearing for the respondents made a request that further hearing of these cases be adjourned and the respondents may be allowed to hold inquiry under section 5A and submit a detailed report which may then be scrutinized by this Court. According to Shri Dwivedi notices will be issued to the affected persons within three weeks' from today to enable them to file objections within four weeks and after hearing those who file objections, the report will be submitted to the Court within three months.

In view of the statement made by Shri Dwivedi we deem it proper to issue the following directions:

1. With three weeks' from today the Land Acquisition Officer shall issue notice to the affected persons, who may file their objections within four weeks from the date of receipt of notice.

2. The Land Acquisition Officer shall hear the objectors and submit report this Court within three months.

3. Copies of the recommendations of the concerned officer shall be made available to the petitioners, who may file further affidavit within next two weeks.

List the case on 8.8.2011." (emphasis added)

17. Notices were issued by SLAO. Petitioners filed their objections and thereafter report was submitted. Thereafter all these appeals came up before Court on 19.09.2011 and it allowed appeals, set aside this Court's judgments dated 08.12.2005 and remanded matter to consider grounds taken by petitioners in challenging acquisition notifications in taking recourse to Section 17 and decide matter on merits. The final order passed by Court on 19.09.2011 reads as under:

"Leave granted.

These appeals are directed against orders dated 8.12.2005 passed by the Division Bench of the Allahabad High Court whereby the writ petitions filed by the appellants questioning the acquisition of their land were summarily dismissed.

We have heard Shri Kailash Vasdev, learned senior counsel appearing for the appellants and Shri S.R. Singh, learned senior counsel appearing for the respondents and carefully perused the record including affidavit dated 4.8.2011 of the Special Land Acquisition Officer (Joint Organization), Banda and additional documents filed by the appellants.

In our considered opinion, the impugned orders are liable to be set aside only on the ground that while dismissing the writ petitions, the High Court did not advert to the factual matrix of the case and grounds on which the appellants have challenged the acquisition of their land including the one that the urgency provision contained in section 17 of the Land Acquisition Act, 1894 could not have been invoked for the acquisition of land for construction of residential and non-residential wings of District Headquarter. The High Court should have considered on merits the grounds of challenge and decided the same by assigning cogent reasons. Its failure to do so has resulted in manifest injustice to the appellants.

In the result, the appeals are allowed, the impugned orders are set aside and the matters are remitted to the High Court for fresh disposal of the writ petitions. The parties are given liberty to file additional affidavits and documents before the High Court within a period of 12 weeks.

All the pending interlocutory applications are disposed of as infructuous." (emphasis added)

18. Petitioners have filed supplementary affidavit placing on record copies of their objections and report submitted by authorities. They have also amended their petitions in the light of provisions of Act, 2013. We shall refer to relevant pleadings etc. whenever the same would be required.

19. Basic submission as we have already noticed is that dispensation of inquiry by invoking powers under Section 17 of Act, 1894 is illegal and arbitrary and in any case acquisition proceedings in respect of petitioners' land have deemed lapsed under Section 24(2) of Act, 2013.

20. It is not in dispute that Karvi was a Tahsil of Revenue District Banda till it was separated and made part of a new District Chitrakoot by notification dated 13.05.1997 issued under Section 11 of Act, 1901. Newly created Revenue District 'Chitrakoot' comprised of two Tahsils, Mau and Karvi. District Headquarter was sought to be set up in Karvi.

21. Before creation of new District Chitrakoot, Karvi did not have any infrastructure so as to cope up with requirement of a new Revenue District. As a result of creation of new Revenue district a large number of district level offices and other incidental institutions had to be set up which included offices pertaining to different departments like Health, Education, Transportation, Postal Services, Irrigation, Public Works Department, Rural Development, Police, Revenue, Judiciary etc. Since after creation of Revenue district, in respect of various things certain formalities are also required to be performed which took some time. This is evident from the fact that first district level officer, i.e., District Magistrate was posted in newly created District Chitrakoot on 23.05.1997. Thereafter district level Police Officer, i.e., Superintendent of Police was posted on 27.05.1997. Rest district level officers were posted on various subsequent dates. District Judge could be posted on 10.02.1998, Chief Medical Officer on 24.08.2000 and the process continued. All these district level officers and their entire subordinate hierarchy required not only functional office space but also residential accommodation to keep their families at the place of their posting and for catering other needs and attending facilities like Hospital, School etc. First and foremost responsibility of State as well as Authorities was to build up official infrastructure to cater need of district level Revenue Officers, Police Officers, Judicial Officers, Medical Officers etc. and to provide requisite residential accommodation to them. State Government constituted a committee to work out area of land required for various purposes so that it may proceed to acquire the same. The committee proposed 27 acres of land for Collectorate, 50 acres for Civil Court, 3 acres for office of Superintendent of Police, 15 acres for District Hospital, 5 acres for Vikas Bhawan, 30 acres for District Jail and so on. At first stage it resolved to possess atleast 250 acres of land, whereagainst identified land was only about 234 acres. Hence first notification under Section 4(1) proposing to acquire land measuring 234 acres land came to be issued on 18.06.2002.

22. Though it is contended by petitioners that there was already land earmarked more than a century back but they could not substantiate and identified any such land available to State. Requirement of establishing district level offices in a newly created Revenue District as well as residential accommodations for newly posted officers factually is not disputed and looking to backdrop that it was a newly created district, it also cannot be said that said requirement was not urgent. Government constituted initially a committee to find out requirement of various departments who submitted report ultimately on 24.12.2001 and thereafter notification was issued on 18.06.2002.

23. State Government apparently, therefore, in our view, did not erred in law in invoking urgency clause by exercising powers under Section 17(1) and (4) and dispensing with inquiry under Section 5-A of Act, 1894. Even otherwise, grievance of petitioners that opportunity of hearing which was available to land owners if inquiry under Section 5-A would have been made, has also been observed in this case in view of directions issued by Supreme Court on 08.04.2011 pursuant whereto objections were filed by various land owners and after referring to same a report has been submitted by concerned revenue officials. The objections submitted by land owners, some of which have been placed on record, would show that they have mainly pleaded for exemption of their land from acquisition. It has been highlighted in report that from 1835 to 1982 Karvi was enjoying status of a Tahsil only and there was no district level office available. Only block level officers were posted and offices for them were available. These facts formerly are not shown to be incorrect. We would further elaborate our views on the question, whether Government was justified in this particular case in dispensing with inquiry under Section 5-A by invoking powers under Section 17(1) of Act, 1894.

24. In this regard we may recapitulate the law relevant on this aspect by referring to some relevant authorities on the subject.

25. Section 5-A was inserted in Act, 1894 as long back as in 1923, by Act No. 38 of 1923. There are minor amendments made subsequently but substance of provision has remained the same.

26. Normal procedure of acquisition is that a proposal of acquisition is published in notification under Section 4 of Act, 1894. Land owners whose land is proposed to be acquired, are given an opportunity to make their objections. Collector is under an obligation to consider objections and also offer an opportunity of hearing to objectors and thereafter submit a report to Government containing his recommendations on the objections, for decision of Government. After considering the report and other material, Government make declaration that land is proposed to be acquired for public purpose and this is done by publication of notification under Section 6. Therefore, there is possibility of some difference in details of land stated in the notification issued under Section 4 and finally declared land, as acquired for public purpose, detailed in notification under Section 6.

27. Collector is then authorised to take order for acquisition and under Section 8 is supposed to mark, measure and plan the acquired land. A notice thereafter is issued under Section 9 to Land Owners by Collector notifying his intention of taking possession of land and that the claim for compensation be submitted to him. Under Section 11, Collector makes enquiry for determining amount of compensation payable to land owners, whose land has been acquired, and make award. After payment of compensation, Collector takes possession of land.

28. There is an exception to normal procedure of taking possession which is contained in Section 17 of Act 1894. It says that in case of urgency, even though no award has been made, Government can direct Collector to take possession of any land, needed for public purpose, and on such possession being taken by Collector, land shall vest absolutely with the Government free from all encumbrances. Section 17(4) provides, where such urgency for the purpose of possession is to be acted upon, Government, shall declare that provision of Section 5-A shall not apply.

29. The circumstances, when Government would be justified to dispense with enquiry under Section 5-A while invoking urgency clause under Section 17, for the purpose of taking possession, has been considered in a catena of decisions in last several decades and it would be useful to refer some relevant authorities in this regard.

30. Right to file objection against proposal of acquisition of land published under Section 4 is a substantial right, consistent with principle of natural justice, since forcibly acquisition of land, without consent of land owners, is a serious matter.

31. In Nandeshwar Prasad vs. U.P. Government AIR 1964 SC 1217, Court said, "the right to file objection under Section 5-A is a substantial right when a person's property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side wind".

32. In Munshi Singh and others vs. Union of India (1973) 2 SCC 337, which is a decision of three judges bench, Court stressed upon and emphasized upon an inbuilt legislative recognition of principle of natural justice in Section 5-A and said:

"Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an objector an opportunity of being heard. After hearing all objections and making further inquiry he is to make a report to the appropriate Government containing his recommendation on the objections. ........ The legislature has, therefore, 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".

33. In State of Punjab vs. Gurnail Singh and others 1980 (1) SCC 471 it was held that it is fundamental that compulsory taking of a man's property is a serious matter and smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness. Denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of Act, 1894. A slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes travesty of emergency power.

34. In Shyam Nandan Prasad and others vs. State of Bihar and others (1993) 4 SCC 255 reiterating that section 5-A is mandatory, Court said "the proceeding before the Collector is a blend of public and individual enquiry".

35. In Union of India and others vs. Mukesh Hans (2004) 8 SCC 14, Court held that Section 17(4) is an exception to normal mode of acquisition. Mere existence of urgency or unforeseen emergency by itself is not sufficient to direct for dispensation of Section 5-A. Court reiterated that there must be real existing emergency for which an opinion must be formed by the Government, objectively. Court said:

"It requires an opinion to be formed by concerned government that along with existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A enquiry, which indicates that the legislature intended that the appropriate government to apply its mind before dispensing with Section 5-A enquiry. It also indicates the 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 enquiry. 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 Section 17 (1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A enquiry will be dispensed with, but then that is not language of the Section which, in our opinion, requires the appropriate Government to further consider the need for dispensing with Section 5-A enquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in 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 enquiry. ....... There is need for application of mind by appropriate Government that such an urgency for dispensing of Section 5-A enquiry is inherent ........... ."

36. In Hindustan Petroleum Corporation Ltd. vs Darius Shapur Chenai & Ors (2005) 7 SCC 627 it was held that the provisions of Section 5-A of Act, 1894 must be read consistent with Article 300-A of the Constitution and it is akin to fundamental right of procedure before depriving a persons of his land, and must be strictly complied with.

37. In Essco Fabs Pvt. Ltd. & Anr vs State Of Haryana & Anr (2009) 2 SCC 377 it was held that enquiry should not be dispensed with lightly.

38. In Anand Singh and another vs. State of U.P. and others (2010) 11 SCC 242 Court considered as to when State would be justified in invoking power under Section 17(4) for acquisition of land and dispensing with enquiry under Section 5-A so as to take possession immediately. It is said that power under Section 17 is not to be exercised in a routine manner. It would be justified only when circumstances warrant immediate possession. It should not be lightly invoked. It is an exceptional power enabling land acquiring body to dispense with enquiry under Section 5-A. Government must apply its mind before dispensing with enquiry under Section 5-A whether urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A. The mere mention of words in acquisition notification that Government is satisfied about urgency and dispensing with enquiry under Section 5-A may raise a presumption in favour of Government with per-requisite conditions for exercise of such power are satisfied but when challenged, Government has to produce relevant material before Court to show existence of such circumstances, which justify dispensation of inquiry and avail an exceptional power under Section 17. Court further said, "upon challenge being made to the use of power under Section 17 the Government must produce appropriate material before the Court that the opinion for dispensing with enquiry under Section 5-A has been formed by the Government after due application of mind on the material placed before it".

39. With regard to judicial review of exercise of power, Court in Anand Singh and another (Supra) further said in paras 45, 46, 47 and 48 as under :

"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.

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 5-A 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 5-A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realizing that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously.

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

48. As regards the issue whether pre- notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact-situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate government before the court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5-A."

40. In Radhe Shyam (Dead) through Lrs. and others vs. State of U.P. and others 2011(5) SCC 553 it was reiterated that property of a citizen cannot be acquired by State without complying with the mandate of Sections 4, 5-A and 6 of Act, 1894. A public purpose however, loudable would not entitle Government to invoke urgency provisions, since the same have the effect of depriving owner of his right to property and that too without being heard. Only in a case of real urgency, Government would be justified in invoking urgency provisions. Section 17 must have been invoked only when purpose of acquisition cannot brook the delay of even few weeks or months. The authority must be fully satisfied that time of few weeks or months likely to be taken in conducting enquiry under Section 5-A shall, in all probability, frustrate the public purpose for which land is proposed to be acquired. Satisfaction of Government on issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and can be challenged on the ground that authority did not apply its mind to relevant factors, and on record, there is no material justifying existence of alleged urgency. It also held that exercise of power under Section 17(1) necessarily does not result in exclusion of Section 5-A, inasmuch as, the person concerned 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 shows that it merely enables Government to direct that Section 5-A would not apply to the cases covered under Sections (1) or (2) of Section 17. Therefore, mere fact that certain purposes may be treated as public purpose for purpose of acquisition but that by itself would not mean that their exists urgency to dispense with inquiry unless the circumstances actually and really are in existence to show that delay in taking possession would be adverse to public interest. It also held that Court can take judicial notice of the fact that forplanning, execution and implementation of scheme relating to development of residential, commercial and industrial or institutional areas, Government takes few years, therefore, in such cases private property should not be acquired by invoking urgency clause as denial of Rule of audi alteram partem embodied in Section 5-A is not at all warranted in such cases.

41. In Darshan Lal Nagpal (Dead) By Lrs. vs. Govt. of NCT of Delhi and others (2012) 2 SCC 327 after having retrospection of some of authorities on the subject, Court in para 28 of the judgment stated as under :

"What needs to be emphasized is that although in exercise of the power of eminent domain, the State can acquire the private property for public purpose, it must be remembered that compulsory acquisition of the property belonging to a private individual is a serious matter and has grave repercussions on his Constitutional right of not being deprived of his property without the sanction of law - Article 300-A and the legal rights. Therefore, the State must exercise this power with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing."

42. In Union of India and others vs. Shiv Raj (supra), Court in para 15 said that Section 5-A confers a valuable right on the owner of land and it is not an empty formality. It is a substantive right, which can be taken away only for good and valid reasons and within the limitations prescribed under Section 17(4) of Act, 1894.

43. The up shot of the authorities discussed above is that inquiry under Section 5-A should not be dispensed with on mere asking or in a routine course but it is only when there actually exist urgency, such inquiry should be dispensed with.

44. There are total 42 petitioners in these four petitions. Details of disputed land belong to petitioners in different writ petitions as also other details are given in the form of a chart as under:

Sl. No.

Writ No.

Name of Petitioner

Plot(s) No.

Area in Acres

Village

9548/03

Santosh Kumar, Govind Kumar, Bhupat Prasad (P-1, 2, 3)

706, 707, 710/3, 648, 650/1Ka

0.49, 0.36, ....., 0.77, .....

Tarauha

9548/03

Suraj Pal (P-4)

682, 238

1.11, 0.57

Tarauha, Banari

9548/03

Indrajeet (P-5)

710/3, 239

......, 1.11

Tarauha, Garhiva

9548/03

Bhagwan, Ram Khelawan(P-6, 7)

722, 759, 721M

6.33, 2.01, .....

Tarauha

9548/03

Kallu alias Naviullah (P-8)

0.98

Tarauha

9548/03

Kunni Lal (P-9)

778, 612, 669M, 673 Ka

2.13, 0.86, ....., ......

Tarauha

9548/03

Abdul Kalim Bux (P-10)

559M

.....

9548/03

Raju (P-11)

.....

9548/03

Shivdhar alias Raja Bhaiya, Chandrapal (P-12, 13)

606, 607/2, 758, 768/1, 1007, 608, 609

1.04, 0.20, ....., ......., 0.36, 0.36

Tarauha

9548/03

Badri Prasad (P-14)

648, 668, 680, 713M, 781, 811/1, 812Kha, 814, 818

0.77, 0.67, 0.32, ......, 1.73, ....., ......, 1.76, 0.30

Tarauha

9548/03

Gopal Krishan (P-15)

602, 604, 603, 810/2, 1011/2, 718

1.29, 1.63, 0.80, 0.60, 0.65, 0.35

Tarauha

9548/03

Kodu alias Ram Das (P-16)

0.87

Garhiva

9548/03

Yusuf, Abdul Haleem (P-17, 18)

2.01

Tarauha

9548/03

Ram Kishan (P-19)

1019, 1022, 1023, 666M, 667, 663M

1.26, 1.70, 0.12, ....., 1.03, .....

Tarauha

9548/03

Girija Sharan, Shyam Charan, Vidhya Charan, Maithly Sharan, Nanhey Lal (P-20 to 24)

698, 699, 681, 696/2, 688, 689, 689/1, 697, 665/1, 708, 711Ka, 712M, 720

0.78, 1.06, 0.64, 0.39, 0.95, ....., 0.62, 0.56, ......, 0.48, ......, ....., 0.58

Tarauha

9548/03

Karim Gux (P-25)

236, 205, 177

1.78, 1.10, 0.58

Garhiva

9548/03

Shaheed (P-26)

0.59

Garhiva

9548/03

Mohd. Hajja, Mohd. Nanhi (P-27, 28)

......

9548/03

Mohd. Hasma (P-29)

5.26

Garhiva

9548/03

Yusuf (P-30)

0.43

Garhiva

9548/03

Naviullah (P-31)

242, 239, 214Ka

1.04, 1.11, ....

Garhiva

9548/03

Abdul Rahman (P-32)

1.04

Garhiva

9548/03

Kaleem (P-33)

0.38

Garhiva

9548/03

Tufel Ahmad (P-34)

1.49

Garhiva

9548/03

Ram Prasad (P-35)

3.00

Garhiva

9548/03

Chiman Ali (P-36)

0.88

Garhiva

9548/03

Shekh Abdula, Shekh Jumman Khan (P-37, 38)

1.87

Garhiva

17312/03

Ram Bahori

0.38

Garhiva

Mulayam Singh

649Ka

0.27

Tarauha

43685/15

Shaheed (P-1)

1.04

Garhiva

43685/15

Nizamuddin (P-2)

3.08

Garhiva

45. Except one, land of all petitioners is either in Village Taroha or Garhiva. Most land which was proposed to be acquired has already been taken possession by State and developmental activities like construction of offices and residential buildings either have completed or in process. Some part of land of petitioners where interim orders are operating are with petitioners. It cannot be doubted, when development activities in a particular manner have to be carried out, land required will constitute a conjoint chunk and land here and there in a scattered manner cannot be allowed to be exempted otherwise the very scheme of developmental activities is bound to suffer. Looking to the facts of these cases we are satisfied that for establishment of district level infrastructure in newly created District 'Chitrakoot', land was necessary and there was a real urgent need justifying exercise of power under Section 17 to dispense with inquiry under Section 5-A of Act, 1894. It thus cannot be said that impugned notifications are bad in law on account of dispensation of inquiry under Section 5-A.

46. Now coming to question of applicability of Section 24(2) of Act, 2013 we find that in a casual fashion petitioners have only said that actual physical possession has not been taken though this fact is not admitted by respondents. It is said that after dismissal of Writ Petitions by the time matter was taken up in Supreme Court, respondents had already taken possession of entire land. We do not find anything placed on record to discredit aforesaid stand taken by respondents.

47. In the supplementary counter affidavit-II sworn on 12.02.2013 by B.D. Gupta, Tahsildar Sadar, District Chitrakoot it is said that on 24.11.2003 possession of 131.40 acres of land was taken and 80% compensation was paid to affected persons. Land belong to certain land owners who had filed Writ Petitions No. 9548 of 2003, i.e., leading one and 17312 of 2003, since there was interim orders passed, hence possession of their land was not taken. After dismissal of both the above writ petitions on 08.12.2005, remaining 90 acres of land was also taken in possession on 27.12.2005. An award was signed on 27.12.2005 in which compensation for entire acquired land was declared which included land, subject matter of Writ Petition No. 9548 of 2003 and others. These facts have been stated in paras 34 to 38 of supplementary counter affidavit-II as also in award, copy whereof has been filed as Annexure SCA-2. We find nothing on record placed by petitioners to contradict aforesaid facts. Hence, Section 24(2) of Act, 2013 also has no application in the case in hand.

48. No other point has been argued.

49. The writ petitions lack merit. Dismissed accordingly.

50. Interim order, if any, stands vacated.

51. No costs.

Order Date :-21.07.2016

AK