AIR 1976 Bom 129.
1971 (3) SCC 381.
(2002) 1 SCC 538.
2017 SCC (01) All 2799.
2002 SCC (01) Bom 949
wp-778-2018 Ors(F1).docx
Pradesh & Ors7 viii) Mehtab Laig Ahmed Shaikh & Ors Vs
State of Maharashtra & Ors8
15. Of these, Mr Patel invited our attention to only two
decisions at numbers (vi) and (vii) above. Mahadev Tambare
(supra) concerns the lapsing of acquisition under Section 11A
of the LA Act and is, therefore, not quite relevant to the
controversy at hand.
16. Mr Patel, relying on Savitri Devi (supra) submitted that
even if this Court were to find that the acquisition proceedings
were illegal for want of any notification/direction under
Section 17(4) of the LA Act dispensing with the requirement
under Section 5A of the LA Act or because such
notification/direction was illegal, null and void, still, this
Court, should mould the relief and refrain from interfering
with acquisition proceedings. He submitted that the alternate
reliefs as were granted or upheld in Savitri Devi (supra) could
be granted, given the importance of the acquisition.
17. Mr Patel submitted that the records contain a
Panchanama showing that the possession of the acquired
lands had already been taken over. However, because of the
status quo order granted by this Court in 2018, the acquired
lands were not being used for any purposes. He also pointed
out that the impugned award which the Petitioners have
challenged in this Petition had already determined the
compensation payable to the Petitioners under the provisions
2015 (7) SCC 21.
2017 SCC (01) Bom 8841.
wp-778-2018 Ors(F1).docx
of the New Land Acquisition Act, i.e., The Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (2013 LA Act). As
such, Mr Patel submitted that there was no actual prejudice to
any Petitioners, who would all be suitably compensated
following the law.
18. For all the above reasons, Mr Patel submitted that these
Petitions may be dismissed, or, in any event, the reliefs may be
molded following the precedent in Savitri Devi (supra).
19. Mr Hegde, learned Senior Advocate for CIDCO,
submitted that these Petitions were barred by delay and
laches. He submitted that since the challenge was to
dispensing enquiry under Section 5A, these Petitions should
have been filed soon after the publication of the Section 6
declaration dated 20 May 2015. He submitted that these
Petitions were filed only in September 2017 after an Award
was made on 7 July 2017. Accordingly, he submitted that
these Petitions be dismissed for delay and laches.
20. Mr Hegde submitted that after the Award was made on
7 July 2017 and the Petitioners were served notice under
Section 12(2) on 4 August 2017, the Petitioners, by their
application dated 11 July 2017, applied for rehabilitation by
allotment of alternate land after deducting 20% of the
compensation payable to them. He submitted that such a
demand amounts to acquiescence, and the petitioners were
estopped from challenging the acquisition proceedings. He
submitted that such conduct of the Petitioners disentitled
wp-778-2018 Ors(F1).docx
them to any discretionary relief under Article 226 of the
Constitution of India.
21. Mr Hegde submitted that the statement in the Section 6
declaration that at some point a notification or direction was
issued under Section 17(4) of the LA Act must itself be treated
as a notification/direction under Section 17(4) for dispensing
with enquiry under Section 5A of the LA Act. He submitted
that the circumstance that the State Government (Respondent
Nos. 1 to 3) were unable to produce any separate
notification/direction could never be fatal to the acquisition
proceedings. Accordingly, he submitted these Petitions may be
dismissed.
22. Mr Hegde submitted that the impugned acquisition was
to set up a new township under the provisions of the
Maharashtra Regional and Town Planning Act, 1966 ("MRTP
Act"). He submitted that necessary notifications under
Sections 113 and 113A of the MRTP Act had already been
issued by the government, declaring that it was in the public
interest to have a new township. He, therefore, submitted that
this was a matter where there was substantial compliance
with the provisions of Section 5A of the LA Act.
23. Mr Hegde submitted that since the State government
had already opined that such a township was in the public
interest, no useful purpose would be served by going through
the formality of considering objections or granting a personal
hearing in these matters. He, therefore, submitted that the
wp-778-2018 Ors(F1).docx
acquisition proceedings may not be interfered with on the
"technical pleas" raised by and on behalf of the petitioners.
24. In any event, Mr Hegde submitted that once
notifications were issued under Section 113 read with Section
113A of the MRTP Act, nothing remained for the Petitioners to
object. He submitted that the Petitioners have nowhere
pleaded that setting up a new township did not constitute
public purpose as defined under Section 3(f) of the LA Act. He
submitted that even otherwise, the provisions of Section 3 (f)
of the LA Act were sufficiently broad to include acquisition to
set up a new township through a special purpose vehicle like
the CIDCO.
25. Mr Hegde submitted that since this was an acquisition in
terms of Section 113A of the MRTP Act, the provisions of the
old LA Act 1894 would govern such acquisition until the
provisions of the 2013 Act were applied by amending Section
113A. He submitted that this was a case of legislation by
incorporation and, therefore, even compensation payable to
the Petitioners had to be determined under the LA Act of 1894
and not under the LA Act of 2013).
26. Based upon the above contentions, Mr Hegde submitted
that these petitions be dismissed, and the interim reliefs
granted in 2018 may be vacated. In the alternate, relying
upon the Noida Industrial Development Authority vs Ravindra
Kumar and Others9 and New Okhla Industrial Development vs
(2022) 13 SCC 468
wp-778-2018 Ors(F1).docx
Darshan Lal Bohra and Others10, Mr Hegde submitted that this
was a fit case to mould the reliefs instead of quashing the
acquisition proceedings.
27. Mr Hegde submitted that the CIDCO had filed IAs to
vacate the interim reliefs because there was no clarity about
the State Government having taken possession and, secondly,
because the status-quo order had rendered it difficult for the
CIDCO to commence developmental works that were
necessary at the site He, therefore, submitted that the
Petitioners may not be regarded as continuing in possession of
the acquired lands simply because the CIDCO applied for
vacation or interim reliefs granted by this Court.
28. The rival contentions now fall for our determination.
29. The lead Petition, WP No. 778 of 2018, is concerned
with the following agricultural properties in the village of
Vahal, Tal. Panvel, Dist. Raigad, which the Petitioners claim to
own: -
Sr. No. Survey No. Hissa No. Area
Gat No
H R P (Square
Meter)
1 306 1 00-21-0 (2100)
2 306 6 00-07-0 (700)
3 320 6 00-14-0 (1400)
4 355 2 01-47-0 (14700)
2024 SCC Online SC 1690
wp-778-2018 Ors(F1).docx
5 369 7 00-06-0 (600)
(hereinafter referred to as the 'said properties' or "acquired
properties").
30. By Notification dated 7 December 2013 (Exhibit-B at
Pages 30-40), under Section 4 of the LA Act, issued by the
Deputy Collector [land acquisition]-R3, the Government
proposed to acquire the said properties for the public purpose
of setting up a new township. This notification was published
in the Official Gazette dated 16 December 2013.
31. Section 4 Notification dated 7 December 2013 did not
refer to invoking the urgency provisions under Section 17 of
the LA Act. Instead, Section 4 notification stated that should
the Commissioner (Konkan Division) be satisfied that the land
set out in the schedule was indeed required for the public
purpose, then a notification/declaration to that effect under
Section 6 of the LA Act would be published in the Official
Gazette as required under the Law.
32. After the publication of Section 4 notification dated 7
December 2013 (Exhibit-B), vide notices placed on record by
the Petitioners at Exhibit-C (pages 41-45 of the paper book),
the Petitioners were notified about the Section 4 notification
dated 7 December 2013 being published in the Official
Gazette dated 16 December 2013 in terms of Section 4(1) of
the LA Act. These notices crucially stated that since the
Petitioners were "persons interested" in the lands referred to
wp-778-2018 Ors(F1).docx
in the schedule to the Section 4 notification, they could file
their objections to the proposed acquisition or give their say
on the proposed acquisition on or before 3 July 2014 in
writing. The notice stated that the Deputy Collector (The Land
Acquisition) Metro Center-3 (Panvel) would hear the
Petitioners or their lawyers under Section 5A of the LA Act.
33. Thus, a conjoint reading of the Section 4 notification
dated 7 December 2013 and the notices under Section 4(1),
which followed, indicate that there was no notification or
direction under Section 17(4) to dispense with the
requirements under Section 5A of the LA Act. Otherwise,
there was no question of the above notices being issued
requiring the Petitioners to furnish their objections, if any, on
or before 3 July 2014 and informing the Petitioners that they
or their Advocates would be heard on such objections by the
Deputy Collector (Land Acquisition) under Section 5A of the
LA Act.
34. The Petitioners filed their objections to the acquisition
on 3 July 2014. These objections are placed on record at
Exhibit-D (pg 46-55 of the paper book). Each of these
objections bears the endorsement of the Special Land
Acquisition Officer, Metro Center 3 (Panvel), who was
admittedly the prescribed authority to receive and deal with
such objections. Thus, this is not a case where the Petitioners
defaulted or delayed in objecting to the acquisition
proceedings. The Petitioners expressly referred to their
valuable rights under Section 5A of the LA Act. They said they
wp-778-2018 Ors(F1).docx
would make detailed submissions during the Section 5A
enquiry before the Special Land Acquisition Officer (R3).
35. Section 5A of the LA reads as follows: -
5-A. Hearing of objections.- "(1) Any person
interested in any land which has been notified
under section 4, Sub - Section (1), as being
needed or likely to be needed for a public
purpose or for any company may, [within
thirty days form the date of the publication of
the notification] object to the acquisition of the
land or of any land in the locality, as the case
may be.
(2) Every objection under sub-section (1) shall
be made to the Collector in writing, and the
Collector shall give the objector an opportunity
of being heard [in person or by any person
person authorised by him in this behalf] or by
pleader shall, after hearing all such objections
and after making such further inquiry, if any, as
he thinks necessary, 2[either make a report in
respect of the land which has been notified
under section 4, sub-section (1), or make
different reports in respect of different parcels
of such land, to the appropriate Government,
containing his recommendations on the
objections, together with the record of the
proceedings held by him, for the decision of
that Government]. The decision of the
³[appropriate Government] on the objections
shall be final.
(3) For the purposes of this section, a person
shall be deemed to be interested in land who
would be entitled to claim an interest in
compensation if the land were acquired under
this Act.]
36. Admittedly, the Petitioners are 'persons interested' in the
lands proposed to be acquired. They lodged their objections in
writing to R3 as directed within the prescribed period.
wp-778-2018 Ors(F1).docx
Accordingly, in terms of Section 5A, R3 or any other
competent officer was required to give the Petitioners an
opportunity to be heard in person or by a pleader. After
hearing of all such objections and making such further
enquiries, if any as he thinks necessary, make a report to the
appropriate Government containing his recommendations on
the objections, together with the record of the proceedings
held by him, for the decision of that Government.
37. There is no dispute that the provisions of Section 5A of
the LA Act 1894 were not complied with in all these matters.
Respondents 1 to 3 did not consider the petitioners'
objections, and neither the Petitioners nor their pleaders were
given an opportunity to be heard as contemplated by Section
5A(2) of the LA Act 1894. The Petitioners have made
averments in this regard in the Petitions, which have not been
denied by any of the Respondents.
38. Apart from no denials, no material is produced on
record showing compliance with Section 5A of the LA Act,
1894 provisions. Even the learned counsel for the
Respondents did not urge that R1 to R3 duly considered the
objections lodged by the Petitioners, any hearing opportunity
was afforded to the Petitioners, or any report/reports as
contemplated by Section 5A were made and sent to the
appropriate government for its decision.
39. Instead, a Section 6 declaration dated 20 May 2015 was
published in the official gazette. This Section 6 declaration at
wp-778-2018 Ors(F1).docx
Exhibit-E (pages 56 to 67 of the paper book) contains the
following two recitals: -
"vkf.k T;kvFkhZ] mDr ufou 'kgj fodkl
izkf/kdj.kkl ekSts ogkG] rk- iuosy] ft- jk;xM]
;sFkhy mDr tfeuh uoh eqacbZ izdYiklkBh
vko';d vkgsr- vkf.k T;kvFkhZ] mDr tfeuhps
laiknu rkrMhus dj.ks vko';d vlY;kus vij
vk;qDr] dksad.k foHkkx ;kauh R;kaph mifunsZf'kr
vf/klwpusOnkjs Hkwlaiknu vf/kfu;e dye 17] iksV
dye (4) vUo;s vls funsZ'k fnys gksrs dh]
laiknu vf/kfu;e dye 5d ps mica/k tfeuhauk
ykxw gks.kkj ukghr-
vij vk;qDr] dksad.k foHkkx] Hkwlaiknu
vf/kfu;ekP;k dye 17] iksV dye (1)
vUo;s ;kOnkjs vlk funsZ'k nsr vkgsr dh laiknu
vf/kfu;ekps dye 9(1) vUo;s mDr tfeuhP;k
laca/kkr uksVhl izfl/n >kY;kiklwu ia/kjk fnolkph
eqnr laikY;koj mDr tfeuhpk rkck ftYgkf/kdkjh
?ksrhy-"
40. The official translations of the aforesaid two recitals in
Section 6 declaration dated 20 May 2015 are set out herein
below for the convenience of reference:-
"And Whereas, the aforesaid New City
Development Authority requires the aforesaid
lands situated at Village - Vahal, Taluka - Panvel,
District - Raigad for the 'Navi Mumbai Project'.
And whereas, as it is necessary to acquire the said
lands immediately, the Additional Commissioner,
Konkan Division, by his aforesaid notification, had
given directions under Sub Section (4), Section
17 of the Land Acquisition Act that, the provisions
of Section 5-C of the Land Acquisition Act will not
be applicable to the said lands.
wp-778-2018 Ors(F1).docx
The Additional Collector, Konkan Division hereby
gives directions under Sub-Section (1) of Section
17 of the Land Acquisition Act that as per Section
9(1) of the Land Acquisition Act, the Collector
shall take the possession of the aforesaid land
after the period of fifteen days from the date of
publication of the notice in respect of the
aforesaid land, gets over."
41. The above recitals in the Section 6 declaration dated 20
May 2015, at least prima facie, suggested that the Additional
Commissioner (Konkan Division) had issued notification or
direction under Section 17(4) and 17(1) invoking the
urgency provisions and dispensing with the compliance of the
salutary provisions under Section 5A of the LA Act 1894 and
for adoption of the expedited procedure to take over the
possession of the acquired lands after tendering the payment
of 80% of the compensation amount.
42. The Petitioners, however, squarely challenged the
existence of any such notifications/directions invoking the
urgency provisions under Section 17 of the LA Act, 1894. Mr.
Anturkar and Mr. Punde argued that the Section 4
notification had indicated the Deputy Collector (Land
Acquisition) as the Special Land Acquisition Officer.
Therefore, the Additional Commissioner (Konkan Division)
had no authority to issue a declaration under Section 6 or, in
any event, to invoke the urgency provisions under Section 17
and dispense with the compliance of Section 5A of the LA Act,
1894.
wp-778-2018 Ors(F1).docx
43. In the replies filed by and on behalf of Respondents 1 to
3 or the CIDCO, there is no denial to the Petitioners' pleadings
that no such notification or direction invoking the provisions
of Section 17 of the LA Act, 1894. Apart from the pleadings,
despite ample opportunity, none of the Respondents could
produce any document in the form of a notification or
direction invoking the urgency provisions of Section 17 of the
LA Act, 1894.
44. Suppose there was any such notification/direction
under Section 17, whether made by the Additional
Commissioner or the Deputy Collector (Land Acquisition). In
that case, the same should have been produced on record
along with the replies or even otherwise when this Court
repeatedly sought the same. Further, if such
notification/direction existed, then, ordinarily, the same
would have found a reference in the Section 4 notification
dated 7 December 2013.
45. Suppose there was any such notification/direction
under Section 17, the notices issued under Section 4(1) to the
Petitioners would not have required them to file their
objections or informed them that they would be heard
personally or through their pleaders during the inquiry under
Section 5A of the LA Act, 1894. All this is more than
sufficient to conclude that there was no notification/direction
invoking the urgency provisions in Section 17 of the LA Act,
wp-778-2018 Ors(F1).docx
1894, in so far as the acquisition under Section 4 notification
dated 17 December 2013 was concerned.
46. Without any notification/direction under Section 17
invoking the urgency provisions, compliance with the
provisions of Section 5A was mandatory. Admittedly, the
requirements of Section 5A were not complied in these
matters. The issuance of the Section 6 declaration dated 20
May 2014 without compliance with the mandatory
requirements of Section 5A vitiates the Section 6 declaration.
On this ground alone, the declaration is liable to be declared
null and void.
47. Mr. Patel and Mr. Hegde then submitted that the recitals
in the Section 6 declaration "should now be construed as
notification/direction of the Additional Commissioner (Konkan
Division) regarding invoking the urgency provisions in Section
17 of the LA Act, 1894". Mr Hegde referred to the
Maharashtra Amendment in Section 17 of the LA Act, 1894.
He pointed out that the "appropriate government' or the
"Commissioner" were empowered to exercise powers under
Section 17 of the LA Act of 1894. Given the reference in the
recital, "such power must be deemed to have been exercised".
48. The above contention is untenable. Firstly, the recitals
referred to the issue of notification/direction under Section
17 in the past, i.e. after the issue of Section 4 notification
dated 17 December 2013 but before the issue of declaration
under Section 6 dated 20 May 2014. Secondly, the dichotomy,
wp-778-2018 Ors(F1).docx
in which the Deputy Collector (Land Acquisition) was duly
appointed as the Special Land Acquisition Officer in this
matter, issuing Section 4 notification and the Additional
Commissioner issuing Section 6 declaration and therein
purporting to invoke the urgency provisions is nowhere
explained by the Respondents.
49. This contention, now raised by Mr. Patel and Mr. Hegde,
is not mentioned in the affidavits filed on behalf of the
Respondents. This argument is backed by neither any
pleadings nor legal provisions to support the same. There can
be no "deemed invocation of the urgency provisions". Either it is
invoked after due record of satisfaction and application of
mind, or it is not. There can be no casualness or ambiguity of
the level now displayed in these matters. Invoking the
urgency provisions under Section 17 is a grave matter
because, by such invocation, one of the most salutary
provisions in Section 5A is sought to be dispensed with.
50. Section 5A embodies the principles of natural justice
and fair play before a person's land is compulsorily acquired.
Therefore, invocating the urgency provisions in Section 17
must be preceded by due application of mind and satisfaction
regarding real urgency. The Hon'ble Supreme Court has held
that urgency should be of such nature as to brook no delay of
a few days or weeks within which the prescribed authorities
at least hear the potential land losers before their land is
wp-778-2018 Ors(F1).docx
compulsorily acquired. Accordingly, this contention, backed
by no pleadings or legal provisions, cannot be accepted.
51. Mr. Punde, with the leave of the Court, produced on
record a Draft Award dated 06 July 2017 prepared by the
Additional Commissioner (Konkan Division) in this matter.
This Draft Award, dated 06 July 2017, contains an
endorsement that the last date for publication of this award is
07 July 2017. This means that the Draft Award was prepared
hardly a day before 07 July 2017, which was perceived as the
last date for publication of the award. This Draft Award was
obtained under the Right to Information Act, as the
endorsement shows. Therefore, no objection was raised or
could be raised to its consideration.
52. Clause 6 of the Draft Award dated 06 July 2017 deals
with the requirement to comply with the provisions of Section
5A of the LA Act, 1894. Clause 6 is transcribed below for the
convenience of reference: -
"6) dye 5 (d) [kkyhy dk;Zokgh %& lnj
izdj.kh Hkwlaiknu vf/kfu;e 1894 ps dye 17 ps
rjrqnh ykxw dsY;kus Eg.ktsp laiknu izdzh;k
rkrMhps dyekUo;s dj.;kr ;sr vlY;kus izkzIr
gjdrhoj Hkwlaiknu vf/kfu;e 1894 ps dye 5
d ph pkSd'kh oxG.;kr vkyh- vls izk#i
fuokM;kr uewn dsys vkgs-
lwpuk@vV@'krZ %&
miftYgkf/kdkjh (Hkwlaiknu) ;kauh laiknu
izdzh;k rkrMhps dye ykowu dye 4 [kkyhy
wp-778-2018 Ors(F1).docx
vf/klwpuk izfl/n dsysyh vlY;kps vk<Gwu ;sr
ukgh- ;kckcr iqu'p% [krjpek djkoh dye 5
(d) [kkyhypkSd'kh dsY;kps fnlwu ;sr ukgh-
Hkfo";kr okn mn~HkoY;kl vFkok U;k;ky;huckc
mifLFkr >kkY;kl fdaok vlafo/kkfud ckc
?kMY;kl R;kl lacaf/kr Hkwlaiknu vf/kdkjh
oS;fDrdfjR;k tckcnkj jkgrhy- dye 5 (d)
ph pkSd'kh oxGY;kckcr lacaf/krkapk ys[kh
[kqyklk izkIr d#u ftYgkf/kdkjh ;kauh fu;eksfpr
dkjokbZ djkoh"
53. The official English translation of paragraph 6 of the
Draft Award dated 06 July 2017 is also transcribed below for
the convenience of reference: -
6) Action under section 5(C) :- In the Draft Award,
it has been mentioned that in this matter, the
enquiry under section 5(C) of the Land Acquisition
Act, 1894 on the objections that have been
received, has been omitted as the provisions of
Section 17 of the Land Acquisition Act, 1894 have
been made applicable, i.e. the acquisition process is
undertaken under the urgency clause.
Instruction/Term/Condition:-
The Deputy Collector (Land Acquisition) does not
seem to have published a Notification under section
4 for acquisition process by citing the urgency
clause. Therefore, the same should be ascertained
once again. The enquiry under section 5(C) does
not seem to have been held. Therefore, in future, if
any dispute arises or any court litigation is filed or
any non-statutory incident occurs, then, the Land
Acquisition Officer concerned shall be personally
responsible therefor. The Collector shall obtain an
explanation in writing from the persons concerned
for omission of the enquiry under section
5(C) and shall take action as per the Rules."
54. Paragraph 6 of the Draft Award dated 06 July 2017
records no compliance with Section 5A requirements on the
wp-778-2018 Ors(F1).docx
premises that the urgency provisions under Section 17 had
been invoked. However, in the Section 4 notification issued
by the Deputy Collector (Land Acquisition), there was no
reference to invoking the urgency provisions. Therefore, the
Draft Award suggests that this matter should be once again
inquired into since there is no record of inquiry under Section
5A. The Draft Award records that in future, if any, controversy
arises on this issue or if there is any litigation in the courts of
law or any unconstitutionality is alleged, the Land Acquisition
Officer must be held personally responsible. Accordingly, the
Draft Award suggests that a written clarification should be
obtained regarding dispensing with Section 5A inquiry from
all concerned. The Collector should take necessary action
under the Rules upon receiving written clarification.
55. Thus, this is a matter where the Respondents have
failed to produce any notification/direction, or, for that
matter, any document regarding the invocation of the urgency
clause under Section 17 of the LA Act, 1894. There was no
reference to such invocation in the Section 4 notification. The
notices under Section 4(1) called upon the Petitioners to
submit their objections on or before 03 July 2014 and
informed them that they or their pleaders would be heard in
the inquiry under Section 5A. The Draft Award flags the issue
of no clarity on invoking urgency provisions and dispensing
with the Section 5A requirements. Factually, there was no
compliance with the mandatory Section 5A requirements.
Based on all this, a case is made to quash the Section 6
wp-778-2018 Ors(F1).docx
declaration dated 20 May 2014 and all subsequent
proceedings, including the impugned award dated 07 July
2017.
56. Mr Hegde did try to urge the reference to the Land
Acquisition Act, 1894, in Section 113A of the Maharashtra
Regional Town Planning Act, 1966 was an an instance of
"legislation by incorporation". Therefore, he contended that
until Section 113A was amended with effect from 29 August
2015, the acquisition for the purposes set out in Section 113
or 113A was under the Land Acquisition Act 1894 provisions.
However, Mr. Hegde could not say what the sequitur of this
argument was.
57. In any event, Section 5A was inserted in the LA Act,
1894, by Act of 38 of 1923, effective 01 January 1924. Thus,
when the MRTP Act 1966 was enacted, Section 5A was a part
of the Land Acquisition Act of 1894. In terms of Mr. Hegde's
arguments, this position continued up to 29 August 2015
when the reference to the Land Acquisition Act, 1894, was
substituted with the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013.
58. The Privy Council in Ezra Vs. Secretary of State for
India-in-Council11 had held that in acquisition of land the
wishes of the owners of the land are wholly irrelevant. The
landowners could only object to the compensation amount,
32 Cal 605 (PC)
wp-778-2018 Ors(F1).docx
measurement area, etc., but never in respect of the
acquisition itself. To remedy this position and offer the
landowners an opportunity to object to the acquisition of the
land Section 5A was introduced with effect from 01 January
1924. The statement of objects and reasons annexed to the
Bill read as follows: -
"The L.A. Act (Act I of 1894) does not provide that
persons having an interest in land which is proposed to
acquire shall have the right of objecting to such
acquisition; nor is Govt. bound to enquire into and
consider any objections that may reach them. The object
of this Bill is to provide that a Local Government shall
not declare, under s. 6 of the Act, that any land is needed
for a public purpose unless time has been allowed after
the notification under s. 4 for persons interested in the
land to put in objections and for such objections to be
considered by the Local Government". In England the
English Land clauses Consolidation Act 1845 and
subsequent amendments do not contain any similar
provision to object against acquisition as such, but in the
Railways Clauses Consolidation Act 1845 there is a
similar provision enabling the owner or occupier to
object against acquisition by Railway Companies."
59. Thus, the legislative intent behind introducing Section
5A was to ensure that the government shall not declare,
under Section 6 of the Act, that any land is needed for a
public purpose unless time has been allowed after notification
under Section 4 for the persons interested in the land to put
in objections and for such objections to be considered by the
local government. In the present matters, without invoking
the urgency provisions in Section 17, Section 5A
requirements were dispensed with, and a Section 6
declaration was issued. Such declaration is ultra vires the
wp-778-2018 Ors(F1).docx
provisions of the Land Acquisition Act, 1894 and the
legislative intent behind inserting Section 5A on the statute.
There is a plethora of precedents clarifying this position. Mr
Patel or Mr Hegde did not cite any decision saying that
compliance with Section 5A, where it was not validly
dispensed with, was only optional or did not affect the
acquisition.
60. In Farid Ahmed Abdul Samad and another Vs. The
Municipal Corporation of the City of Ahmedabad and
another12 the Hon'ble Supreme Court was concerned with the
provisions of Section 284J of the Bombay Provincial
Municipal Corporations Act 1949, which provided that the
Commissioner may, for the purposes of the foregoing section,
on behalf of the Corporation acquire any land including any
buildings thereon as a site for the erection of buildings for the
poorer classes. Section 284N provided that the Land
Acquisition Act of 1894 shall, to the extent set forth in
Appendix I, regulate and apply to land acquisition under this
Chapter. The acquisition which the Hon'ble Supreme Court
was concerned with was made without compliance with the
provisions of Section 5A of the Land Acquisition Act, 1894.
61. Accordingly, the Hon'ble Supreme Court held that the
acquisition without compliance with the mandatory provisions
of Section 5A of the Land Acquisition Act was invalid at its
inception. Its invalidity could not be cured by its approval of
AIR 1976 SC 2095
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the Standing Committee or by its confirmation by the State
Government. The Court held that the heart of Section 5-A of
the Land Acquisition Act is the hearing of objections, and under
sub-section (2) of that section, a personal hearing is
mandatorily provided for. Section 5A does not rest on a person's
demand for a personal hearing. Provision of appeal is also not a
substitute for a personal hearing provided for under Section 5-A
of the Land Acquisition Act.
62. Mr. Hegde submitted that the New Township had an
extremely laudable purpose, and therefore, a technical
objection like non-compliance with Section 5A should not be
taken too seriously. In Farid Ahmed Abdul Samad (supra),
the Hon'ble Supreme Court rejected a similar argument by
observing in Paragraph 27 that beneficial schemes under
welfare legislation must be executed in accordance with the
law which creates the schemes. The end does not always justify
the means, and it is no answer that the object of the scheme is
such that it justifies the implementor of the law to be absolutely
oblivious of the manner of enforcement even though the manner
in an integral part of the scheme, imposing under the law,
restrictions on the rights of individuals.
63. In Bedenshah Fatenshah, Fakir and another Vs The
State of Maharashtra and others13the Division Bench of this
Court (M. N. Chandurkar and R. S. Bhonsale, JJ) held that
the provisions of section 5A are mandatory, and it is now well
1980 Bom. C.R. 791
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settled that the core and essence of section 5A is the personal
hearing of the objections. The absence of a hearing renders
the acquisition invalid from its inception. Eliminating enquiry
under section 5A must be justified by exceptional and genuine
reasons. Since no reasons and exceptional circumstances
warranted a recourse to the application of the urgency clause,
the notification under Sections 6 and 17 was quashed and set
aside.
64. Mr Hegde argued that since the government had
already issued a notification under Section 113 r/w 113A of
the MRTP Act, there was no reason to go through the process
of entertaining objections under Section 5A for the
Collector/Land Acquisition Officer making a report under
Section 5A of the Petitioners or their pleaders. He submitted
that in any event, even recommendations of the
Collector/Land Acquisition Officer never bind the appropriate
government.
65. Again, we are unable to accept the above contentions.
Even Section 113A, which was relied upon by Mr. Hegde,
requires the authorities to acquire lands under the Land
Acquisition Act, 1894 provisions. This means that the
provisions of section 5A, which are very much a part of the
Land Acquisition Act of 1894, need to be complied with. An
argument based on eventual futility cannot be readily
accepted. When the law prescribes that a particular act must
be done in a specific manner, it is well settled that such an act
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must be done in that manner, and all other modes are
impliedly prohibited. This is more so when the requirement
breached embodied the principles of natural justice, which is
now accepted as a concomitant of the non-arbitrariness
clause in Article 14 of the Constitution.
66. In Mandir Sita Ramji Vs. Governor of Delhi and others14
an argument very similar to that made by Mr Hegde, was
rejected by the Hon'ble Supreme Court. The Land Acquisition
Officer declined to hear the Appellant in the inquiry under
Section 5A and make a recommendation to the appropriate
Government. The Court held that such failure of the Land
Acquisition Collector to enquire into the objection after giving
the Appellant an opportunity to be heard would show that
the Collector declined to exercise his jurisdiction under
Section 5A.
67. The Court held that the fact that the State Government
must make the ultimate decision did not relieve the Collector
from his statutory duty to inquire into the objection and make
a recommendation. The Court that the Division Bench of the
High Court should not have departed from the procedure
prescribed by the statute. The observation of the procedure laid
down by the statute before depriving a person of his property is
necessary to generate the feeling that rule of law prevails in this
country. When a procedure is prescribed by the legislature, it is
not for the court to substitute a different one according to its
AIR 1974 SC 1868
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notion of justice. When the legislature has spoken, the judges
cannot afford to be wiser. Accordingly, the notification under
Section 6 was quashed for failure to comply with the
mandatory procedure under Section 5A of the LA Act of 1894.
68. Now, on a demurer, even if we were to proceed on the
premise that the reference to Section 17(4) or 17(1) in the
Section 6 declaration dated 20 May 2014 amounts to some
notification or direction invoking urgency provisions under
Section 17 of the LA Act, 1894, that cannot be the end of the
matter for the Petitioners. Since a challenge was thrown to
such invocation, it was incumbent on the Respondents to
justify invoking the urgency provisions by filing a proper
affidavit backed by relevant material.
69. No material is produced on record to justify the alleged
invocation of the urgency provisions. None of the affidavits
explain or give any reasons justifying the alleged invocation of
the urgency clause in these matters. The urgency provisions
can be invoked only in grave and real urgency cases.
Application of mind is necessary before urgency provisions are
invoked and section 5a provisions are excluded. The statutory
satisfaction must not relate only to the urgency but
specifically to the need to dispense with Section 5A
safeguards. All this is absent in the present case. Therefore,
such alleged invocation of the urgency provisions is liable to
be quashed and set aside.
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70. Apart from the fact that the public purpose, in this case,
was the establishment of a new township, we note that
Section 4 notification was issued on 7 December 2013 and
published in the Gazette on 16 December 2013. This
notification was published in Dainik Krushival on 24
December 2013. After almost six months, the Section 4
notification was published in a conspicuous place, i.e., on the
notice board of Talathi Saja Vahal. Section 4 notification was
then published in Dainik Bahuratna Loknayak on 25 January
2015, i.e., almost 13 months after its publication in the official
gazette on 16 December 2013. All these dates are not
disputed and are reflected in the award made on 7 July 2017.
71. Even if the post-notification delay is to be excluded, the
delay of almost two years between the issue of Section 4 and
Section 6 notifications or the delay of about 13 months in
simply publishing the Section 4 notification at a conspicuous
place in the village is sufficient to infer that this was not a
case of any real urgency justifying the invocation of the
urgency provisions under Section 17 of the LA Act, 1894.
72. In Narayan Govind Gavate Vs State of Maharashtra &
Ors15 the Hon'ble Supreme Court was concerned with
acquiring land to develop industrial areas and residential
tenements. Still, the urgency provisions were invoked and
compliance with Section 5A was dispensed with. Such
invocation of urgency provisions was challenged. The Hon'ble
AIR 1977 SC 183
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Supreme Court held that "where lands are sought to be
acquired for development of area for industrial and residential
purposes that in itself, on the face of it does not call for
invocation of the urgency provisions under Section 17 or the
dispensation with the compliance of Section 5A enquiry and
opportunity for personal hearing".
73. The Court held that Section 17(4) cannot be read in
isolation from Sections 4(1) and 5A of the Act. The immediate
purpose of a notification under Section 4(1) is to enable those
who may have any objections to lodge them for the purpose of
an enquiry under Section 5A of the Act. The Court held that "it
is not the existence of an urgency but the need to dispense with
an enquiry under Section 5A which has to be considered". The
Court held that when the notification invoking the urgency
provisions was challenged, "it was incumbent on the
appropriate government to produce evidence on facts, especially
within its knowledge, to justify such invocation". The Hon'ble
Supreme Court, therefore, quashed the notification, invoking
the urgency provisions.
74. In Union of India & Ors Vs Deepak Bhardwaj & Ors16, the
challenge was invocating urgency provisions under Section
17(1)(4) when the acquisition of land was for developing a
growth point in an area. The High Court quashed the
notification by holding that setting a growth point was a part of
the process of development of rural areas by creating necessary
infrastructure. Such works keep going on as the society grows
AIR 2004 SC 3289
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and these are long terms measures. The High Court held that
invocation of urgency provisions under such circumstances was
not justified. The High Court further held that there was a
total absence of material for the decision to dispense with
Section 5A. The Hon'ble Supreme Court found no reason to
interfere with the High Court's decision quashing the
invocation of the urgency provisions.
75. In Darshan Lal Nagpal & Ors Vs Government of NCT
Delhi & Ors17 the Hon'ble Supreme Court held although in the
exercise of power of eminent domain, the State can acquire
private property for public purposes, "it must be remembered
that compulsory acquisition of 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 300A and the legal rights.
Therefore, the State must exercise the 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 because that results in
depriving the owner of his property without being afforded an
opportunity of hearing".
76. The Hon'ble Supreme Court further held that invocation
of the urgency clause is justified "only if urgency is such that it
AIR 2012 SC 412
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cannot brook the delay of a few weeks or months". The Court
also rejected the argument that the invocation of the urgency
provision was justified because the land was required for a
project which would benefit a large section of society.
77. The Court held that it needs no emphasis that the
majority of the projects undertaken by the State and its
agencies/instrumentalities, the implementation of which
requires public money, are meant to benefit people at large or
substantially large segments of the society. If the proposition
that invocation of urgency provision is justified for projects of
public importance is treated as correct statement of law, then
in all such cases, acquiring authority will be justified in the
invocation of Section 17 of the Act and dispense with enquiry
contemplated under Section 5A, which would necessarily
result in depriving the owner of his property without any
opportunity to object.
78. The Court emphasised that the invocation of urgency
provisions can be justified only if a real emergency cannot
brook a delay of even a few weeks or months. In other words,
urgency provisions can be invoked only if even a few weeks or
months' delay may frustrate the public purpose for which the
land is sought to be acquired. It is one thing to say that the
State and its instrumentality want to execute a project for
public importance without loss of time, and it is altogether
different to say that in the execution of such a project, private
individual should be deprived of their property without even
being heard.
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79. In Kolkata Municipal Corporation and Another v. Bimal
Kumar Shah and Others18, the Hon'ble Supreme Court has
held that it is true that after the 44th Constitutional
amendment, the right to property drifted from Part III to Part
XII of the Constitution, there continues a potent safety net
against arbitrary acquisitions, hasty decision-making and
unfair redressal mechanisms. Despite its spatial placement,
Article 300-A, which declares that no person shall be deprived
of his property save by authority of law, has been
characterized both as a constitutional and also a human right.
To assume that constitutional protection gets constricted to
the mandate of a fair compensation would be a disingenuous
reading of the text and offensive to the egalitarian spirit of the
Constitution. A post-colonial reading of the Constitution
cannot limit itself to the discourse on compulsory acquisitions
being for public purpose and subject to payment of
compensation alone. This binary reading of the Constitutional
right to property must give way to more meaningful
renditions, where the larger right to property is seen as
comprising intersecting sub-rights, each with a distinct
character but interconnected to constitute the whole. These
sub-rights weave themselves into each other and as a
consequence, State action or the legislation that results in the
deprivation of private property must be measured against this
constitutional net as a whole, and not just one or many of its
strands.
[2024] 10 SCC 533
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80. The Court has identified seven such sub-rights, albeit
non-exhaustively. One of the sub-rights is the duty of the State
to hear objections to the acquisition-the right to be heard. The
next is the duty of the State to inform the person of its decision
to acquire-the right to a reasoned decision. The Court held that
these seven rights are the foundational components of a law
that is tune with Article 300-A, and the absence of one of
these or some of them would render the law susceptible to
challenge. The Court held that it is, of course, precedentially
sound to describe some of these sub-rights as "procedure", a
nomenclature that often tends to undermine the inherent
worth of these safeguards. These seven sub-rights may be
procedures, but they do constitute the real content of the right to
property under Article 300-A, non-compliance of these will
amount violation of the right, being without the authority of
law.
81. In paragraphs 33.2 and 33.3, the Hon'ble Supreme
Court has discussed the scope and ambit of the right to be
heard and the right to a reasoned decision in the context of
compulsory acquisition of private property. The Court held
that following a right to meaningful and effective prior notice
of acquisition is the right to the property bearer to
communicate his objections and concerns to the authority
acquiring the property. This right to be heard against the
proposed acquisition must be meaningful and not a sham.
Section 5-A of the Land Acquisition Act, 1894 or Section 15 of
the 2013 Act are some of the statutory embodiments of this
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right. The Court held that the judicial opinions recognising the
importance of this right are far too many to reproduce. Suffice
it to say that the enquiry in which a landholder would raise
his objection is not a mere formality19.
82. The Court further held the fact that the authorities have
heard and considered the objections to the acquisition is
evidenced only through a reasoned order. It is therefore
incumbent upon the authority to take an informed decision
and communicate the same to the objector. Section 6 of the
Land Acquisition Act, 1894 or Section 19 of the 2013 Act are
the statutory incorporations of this principle. Highlighting the
importance of the declaration of the decision to acquire, the
Courts have held that the declaration is mandatory, failing
which, the acquisition proceedings will cease to have effect.
83. Following the above principles and applying them to the
facts of the present case, we are satisfied that, factually, there
was no invocation of any urgency clause, and Section 5A
compliance was wrongly dispensed with even without such
In Nandeshwar Prasad v. State of U.P., 1963 SCC OnLine SC 245: AIR 1964 SC 1217,
this Court has held the right under Section 5-A of the Land Acquisition Act, 1894 to be
a substantial one and it cannot be taken away. In Hindustan Petroleum Corpn. Ltd. v.
Darius Shapur Chenai, (2005) 7 SCC 627, this Court has held that the right of
submitting objections under Section 5-A of the Land Acquisition Act, 1894 is a valuable
right and the hearing given in pursuance of exercise of this right must not be rendered
to a mere formality. In Union of India v. Shiv Raj, (2014) 6 SCC 564: (2014) 3 SCC
(Civ) 607, this Court held that the rules of natural justice have been ingrained in the
scheme of Section 5-A of the Land Acquisition Act, 1894. In Competent Authority v.
Barangore Jute Factory, (2005) 13 SCC 477, this Court observed that in the process
from the initial notification to the final declaration, objections play a vital road. In
Kamal Trading (P) Ltd. v. State of W.B., (2012) 2 SCC 25: (2012) 1 SCC (Civ) 506, this
Court quashed the land acquisition proceedings when a proper hearing under Section
5-A of the Land Acquisition Act, 1894 was not accorded. In Gojer Bros. (P) Ltd. v. State
of W.B., (2013) 16 SCC 660: (2014) 5 SCC (Civ) 588, this Court quashed the land
acquisition proceedings when it was observed that a mere formality was rendered in
the name of a hearing under Section 5-A of the Land Acquisition Act, 1894.
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invocation. In any event, even if we assume there was such
invocation vide the ambiguous recitals in Section 6
declaration dated 20 May 2015. Still, such invocation was ex-
facie illegal, null and void because this was not a real urgency
or urgency that would brook no delay of even a few days or
months. No material has been produced on record justifying
the alleged invocation of the urgency clause. The alleged
invocation contradicts the principles the Hon'ble Supreme
Court laid down in such matters and is liable to be set aside.
84. For all the above reasons, we are satisfied that the
impugned notification dated 20 May 2015 and the impugned
award dated 7 July 2017 based thereon are liable to be
quashed and set aside and are hereby quashed and set aside.
85. Typically, when awards or notifications under Section 6
of the LA Act, 1894, are quashed and set aside on account of
invalid invocation of the urgency clause and dispensation with
the Section 5A requirements, a Section 4 notification is not
quashed and set aside unless there are good reasons to do so.
86. In the present case, Mr Hegde submitted that the
Petitioners should not be compensated under the 2013 Act.
Mr Patel, AGP, did not readily accept this position. Still,
leaving Section 4 notification untouched might imply that the
compensation rate is determined as of 7 December 2013 or 25
January 2015, should the acquisition proceed after due
compliance with the statutory requirements. This may not be
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very equitable to the Petitioners' interest. The Petitioners right
to an efficient and expeditious process might be a casualty.
87. However, the Petitioners have asserted that they
continue possessing the said properties given the interim relief
granted by this Court in these Petitions. From the photographs
placed on record by the Petitioners, it is apparent that the
Respondents have not carried out any activity on the said
properties. However, a vague contention of possession being
with them is raised by relying upon one panchanama. The
CIDCO filed an interim application in this Court to vacate the
interim order granted by this Court. In this interim
application, the CIDCO requested possession of the said
property, which contradicts the claim that it already possesses
the said properties.
88. Considering all the above factors, while we do not wish
to quash the Section 4 notification dated 7 December 2013
formally, we leave the question of compensation rate open
should the Respondents proceed with the acquisition from the
Section 4 notification stage in these matters. The reliefs in
these petitions can be moulded to this extent.
89. The arguments regarding the denial of reliefs in the
name of moulding do not appeal to us in the peculiar facts of
the present case. As noted above, this is not a case where the
Petitioners could be held guilty of laches. The Petitioners have
approached this Court within a reasonable period, given that
the impugned Award was made on 7 July 2017 and the
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notices of its making were issued in August 2017. These
Petitions were instituted in September 2017. The Petitioners
also secured interim reliefs from this Court.
90. Though there is some controversy on the possession
aspect, from the photographs on record, the Respondents do
not appear to have undertaken any activities on the said
properties. The CIDCO, in its application for vacating the
interim reliefs filed in 2021, requested possession of the said
properties, meaning that it did not have the said properties. In
Noida Industrial Development Authority (supra) and New
Okhla Industrial Development Authority (supra), material
showed that considerable development was completed on the
acquired land. The fact situation in Savitri [Supra] was also
quite different. That is not the position in the present matters.
Mr. Damle, who appeared for the intervenors, did not claim
that the intervenor allottees were in possession or were using
the said properties. His contention was that the interests of
the allottees may be protected. Considering all these factors,
no case is made to deny relief to the petitioners.
91. Besides, the petitioners were guilty of laches in the
decisions relied upon by Mr Hegde and Mr Patel. Still, the
Court found that the acquisition was illegal. Therefore,
instead of quashing the acquisition, the Court, by balancing
the equities, directed payment of compensation under the
New Act of 2013 or treated the date of the judgement itself as
the benchmark for determining the compensation rate. Such
are not the facts in the present batch of matters.
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92. The circumstance that the Petitioners applied for
rehabilitation by abundant caution cannot be construed as
acquiescence to a void acquisition. As a matter of abundant
caution and without prejudice, such a request may have been
made by the Petitioners. Even in the present Petitions, the
Petitioners have prayed for rehabilitation benefits through
alternate relief. Incidentally, the impugned Award declined
such relief to the Petitioners on the specious plea that the
Petitioners made no such specific claim when records prima
facie show that such a claim was made. This is neither a case
of acquiescence nor estoppel.
93. Ultimately, we cannot forget the Petitioners are
Agriculturists whose lands are sought to be compulsorily
acquired without even hearing them or without complying
with the mandatory provisions of the statute. In their never-
considered objections, the Petitioners had pointed out how
they would suffer and even be rendered landless. Though the
property right may no longer be a fundamental right, it is
accepted as the Constitutional Right vide Article 300A. The
Hon'ble Supreme Court has held that property rights are also
Human Rights. [See Tukaram Kana Joshi v. MIDC20]
94. Therefore, based on the arguments urged, no case is
made to deny the Petitioners the relief they are entitled to or
to mould the relief and compel them to accept something
significantly less than what is due to them. Mr Patel and Mr
Hegde were unclear about the moulded relief in these
[2013] 1 SCC 353
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matters. Nothing was proposed except to urge that these
Petitions may be dismissed.
95. Incidentally, the Respondents did not offer the
Petitioners substantial compensation or rehabilitation. Instead,
they raised defences neither backed by facts nor the law. None
of the Respondents was candid with the Court, and most of
their arguments were not even reflected in their replies. They
made confusing statements and sought to gain an advantage
from them.
96. For all the above reasons, we allow these Petitions and
quash and set aside the Section 6 declaration dated 20 May
2015 (Exhibit--E) and the impugned Award dated 7 July
2017 (Exhibit- L) to the extent they concern the Petitioners'
properties as described in their respective Petitions. The
notices dated 4 August 2017 under Section 12(2) will also not
survive and are hereby quashed. However, nothing in this
judgment and order will preclude the respondents from
acquiring the Petitioners' properties by following the law and
lawful procedures.
97. Given the interim orders made in these Petitions, the
petitioners assert that they continue to possess the said
properties. Therefore, there is no question of issuing orders
restoring possession to them. The Petitioners have not prayed
for any such reliefs. The interim orders are now made
absolute.
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98. Interim Applications, mainly seeking to vacate the
interim reliefs granted in these Petitions, will not survive and
are now disposed of. Some interim applications sought
interventions. The State and CIDCO defended the interests of
the intervenors. Mr Damle was also heard on behalf of the
intervenors. These applications also stand worked out and are
now disposed of.
99. The Rule is made absolute in the above terms in all
these Petitions without any cost order.
100. All concerned to act on an authenticated copy of this
order.
(Jitendra Jain, J) (M. S. Sonak, J)
After Pronouncement
101. At this stage, Mr Deolekar, the learned AGP seeks a stay
on the judgment and order that we have just pronounced. As
noted earlier, there was an interim order operating in favour
of the Petitioners since 2018. Now that we have allowed the
Petition, this interim order is made absolute. A stay at this
stage would virtually amount to vacating the interim order in
operation since 2018. Such a stay cannot be granted. Mr
Deolekar states that the Respondents may have to implement
this order. There is no question of implementation as such
since we have quashed the acquisition qua the Petitioners
lands. As noted earlier, the Petitioners were protected by an
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interim order since 2018.
102. Accordingly, the application for stay is hereby rejected.
(Jitendra Jain, J) (M. S. Sonak, J)
