M/S. Rotary Co-Operative Group ... vs Union Of India & Ors.
2010 Latest Caselaw 5276 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                        Reserved on : 08.11 2010
%                                                   Date of decision : 22.11.2010


+                          WP (C) No. 5345 / 1993


M/S. ROTARY CO-OPERATIVE GROUP HOUSING SOCIETY LTD.
      ...   ...    ...   ...    ...    ...   ...    ...    ... PETITIONER

                        Through : Mr. Aman Lekhi, Sr. Adv. with
                                  Mr. Kirtiman Singh, Mr. Sanchar Anand
                                  & Mr. T. Singhdev, Advocates.


                                    -VERSUS-


UNION OF INDIA & ORS.                   ...     ...       ...       ...     RESPONDENTS

                        Through : Mr. Sanjay Poddar, Advocate
                                  for R - 2 to 5 / LAC.
                                  Mr. Ajay Verma, Adv. for R - 6 / DDA.
                                  Mr. Mukesh Gupta & Mr. Sumit Gupta,
                                  Adv. for R - 7 / MCD.


CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE VALMIKI J. MEHTA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                            YES

2.        To be referred to Reporter or not?                             YES

3.        Whether the judgment should be                                 YES
          reported in the Digest?


SANJAY KISHAN KAUL, J.

1. The petitioner society towards its avowed objective of

providing housing to its members entered into an

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Agreement to Sell dated 24.07.1987 for purchase of land

measuring 10 bighas & 5 biswas situated in khasra No.

584/529 and 2 bighas & 10 biswas situated in khasra No.

611/532 in total 12 bighas & 15 biswas of land situated in

the revenue estate of Village Kasoompur, Tehsil Mehrauli,

New Delhi. The possession of the said land is stated to

have been taken over from the vendors by the society on

24.10.1987 after payment of full consideration. The land

was already subject matter of notification under Section 4

of the Land Acquisition Act, 1894 ( hereinafter referred to

as, „the said Act‟ ) dated 23.01.1965 and a declaration

under Section 6 of the said Act dated 06.09.1966 for the

public purpose of Planned Development of Delhi. The

petitioner society claims that since for 10 years after

declaration under Section 6 of the said Act, the land was

still not acquired, it was their belief that the land stood

released from compulsory acquisition under the said Act.

2. However, on or about 21.05.1983 notices were issued

under Sections 9 and 10 of the said Act by respondent No.

3 / Land Acquisition Collector ( for short, „LAC‟ ). A writ

petition bearing No. 1302/1983 titled „Shri Chandgi & Ors.

v. Union of India & Ors.‟ was filed challenging the

acquisition proceedings and the notification in respect of

the land in question. It is during the pendency of this

petition that the petitioner society entered into the

Agreement to Sell and filed an application for impleadment

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and substitution in the writ petition, which was allowed.

The writ petition was finally allowed on 23.04.1990.

3. A perusal of the Order dated 23.04.1990 shows that the

only ground considered therein is that the notice was more

than 10 years old since its publication and, thus, the land

should be released from acquisition in view of the

provisions of Section 55 of the Delhi Development Act,

1957 ( hereinafter to be referred to as, „the DD Act‟ ). The

effect of the said provision had already been the subject

matter of decision in Civil Writ Petition No. 721/1974 titled

„Scindia Potteries & Ors. v. Union of India & Ors.‟ decided

on 05.12.1977 and Sahab Singh & Ors. v. Union of India &

Ors., 38 (1989) DLT 127 where it was held that when a

notice under Section 55 of the DD Act is issued and the

administration does not acquire the land for a period of six

months, the land stands free from the notice of acquisition.

The judgment in the case of the petitioner society was

never challenged and became final.

4. The petitioner society having succeeded in this writ

petition applied to the ADM (Land Acquisition), i.e.,

respondent No. 4 herein for issuance of No Objection

Certificate (NOC) for the transfer of land by means of a

registered sale deed in view of the provisions of the Delhi

Lands (Restrictions on Transfer) Act, 1972 and pursuant to

the certificates being issued on 14.06.1990, sale deeds

were executed on 15.06.1990. This was followed up by

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mutation in revenue records on 24.07.1990. The

demarcation had already been carried out by the Tehsildar

on 04.08.1989. The petitioner society thereafter sought to

make the plans for the construction and applied to DDA /

respondent No. 6 for sanction of the building plans. The

petitioner claims that the land use prescribed is

„residential‟. However, DDA refused to sanction plans for

the group housing society vide letter dated 24.12.1990 on

the ground of non-submission of NOC from the Land

Branch of DDA. The petitioner society filed an appeal

before the Vice-Chairman, DDA vide its letter dated

08.02.1991 and also made representations to the Hon‟ble

Minister for Urban Development. The petitioner claims that

the Minister recommended the case of the petitioner

society, but to no avail. The petitioner also states that

DDA itself had constructed SFS flats adjacent to the land of

the petitioner society, which are popularly known as „Hill

View Apartments‟. The petitioner society finally filed Civil

Writ Petition No. 3371/1993 being aggrieved by the

rejection of the plans.

5. The next development was the issuance of notification

dated 13.09.1993 under Section 4 read with Section 17(1)

and 17(4) of the said Act once again in respect of the land

of the petitioner society. The provisions of Section 5A of

the said Act were dispensed with and this fact came to the

notice of the petitioner when DDA filed answer to show-

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cause to Civil Writ Petition No. 1973/1992. The petitioner

society, thus, claims that it was deprived of the valuable

right under Section 5A of the said Act. The present writ

petition under Article 226 of the Constitution of India ( for

short, „the Constitution‟ ) lays a challenge to this

notification issued afresh.

6. The writ petition was contested by the respondents. We

may note that further affidavits were directed to be filed in

view of certain subsequent developments which arose in

the present case. An important legal development took

place as the judgment in Scindia Potteries & Ors.‟s case

(supra) stood subsequently overruled by a Full Bench

judgment of this Court in Roshnara Begum v. Union of

India, 61 (1996) DLT 206 (FB) which was affirmed by the

Supreme Court in Murari v. Union of India, 1997 (1) SCC 15.

Thus, the very premise on which the judgment was

delivered by the Division Bench in the case of the

petitioner on 23.04.1990 stood rejected though the

judgment had become final in view of no further challenge

laid to that judgment.

7. The other development, which has been brought to our

notice, is that a large area of land in the same vicinity

including allegedly the land in dispute was subject matter

of Writ Petition (Civil) No. 4677/1985 before the Hon‟ble

Supreme Court. The matter was examined from the

perspective of environmental issue and the Environment

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Impact Authority itself recommended that the complete

area was to be maintained as green. The area is, thus,

now included in the Aravali Biodiversity Park (District Park)

as per the Master Plan of Delhi - 2021 (MPD-2021) read

with Zonal Development Plan (ZDP) and the lay-out plan of

the area. Learned counsel for DDA has categorically

asserted before us that the area in question is now to be

used only as a green area and forms part of the

Biodiversity Park. In this behalf, learned senior counsel for

the petitioner has, however, contended that the area has

not been correctly pointed out and the area is outside the

Biodiversity Park. We may note at this stage itself that we

are not here in the present proceedings to carry out any

demarcation of the area in question for which the present

proceedings are certainly not the appropriate one.

8. In the conspectus of the pleadings of the parties, learned

senior counsel for the petitioner contended that if the

impugned notification was upheld, it would amount to the

Executive having the power to overrule the judicial

pronouncement made by this Court in respect of the land

in question in CWP No. 1302/1983 decided on 23.04.1990

as the purpose of acquisition is the same as earlier

specified, i.e., Planned Development of Delhi. It was

sought to be contended that the law declared by this Court

was binding on all authorities and tribunals and the

impugned notification is a colourable exercise of power.

_____________________________________________________________________________________________

Learned senior counsel contended that the respondents

could not rely upon the Full Bench judgment of this Court

in Roshnara Begum‟s case (supra) as they had never

challenged the Order dated 23.04.1990 in the case of the

petitioner. Such repeated notifications, it was contended,

were issued against the observations made in Roshnara

Begum‟s case (supra).

9. We are unable to accept the plea advanced by learned

senior counsel for the petitioner as it is obvious to us that

all that weighed with the Court while passing the Order

dated 23.04.1990 was the interpretation of Section 55 of

the DD Act as enunciated in Scindia Potteries & Ors.‟s case

(supra) which judgment stood subsequently overruled.

This did not prevent the competent authorities from issuing

a fresh notification for acquisition of the land. The

petitioner would obviously get the benefit of the judgment

dated 23.04.1990 since the earlier notification dated

23.01.1965 had been quashed and the fresh impugned

notification was issued on 13.09.1993 and, thus, the

petitioner would be entitled to compensation at 1993 rates.

10. Another aspect, on which learned senior counsel for the

petitioner has placed reliance, is the construction of SFS

flats known as „Hill View Apartments‟ by DDA itself where

only part of the flats were constructed. This can hardly be

of any assistance to the petitioner since undoubtedly Hill

View Apartments having been already constructed stands

_____________________________________________________________________________________________

as an island in the Biodiversity Park and this does not imply

that since the said flats are constructed, the petitioner

should also be permitted to construct on the adjacent land.

11. The last aspect, which in our considered view is really the

only aspect which needs consideration, is the plea arising

from invocation of the urgency clause under Section 17 of

the said Act dispensing with the requirement of inviting

objections and giving a hearing under Section 5A of the

said Act. In this behalf, learned senior counsel for the

petitioner submitted that while the earlier notification was

quashed on 23.04.1990, the fresh notification was issued

only on 13.09.1993 after more than three and a half years.

This clearly showed that there was no urgency. It was

further contended that the existence of urgency is different

from the need to dispense with the enquiry and while the

first condition is merely mentioned, there was nothing on

record to even suggest that the need to dispense with the

enquiry was ever considered. The provisions of the said

Act being in the nature of expropriatory legislation, the

same have to be strictly considered and, thus, the absence

of the condition precedent for attracting Section 17(4) of

the said Act with no material being on record to support

application of mind is sufficient to quash the impugned

notification.

12. The aforesaid plea is sought to be negated by learned

counsels for LAC and DDA by making a reference to the

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observations in a recent judgment of the Supreme Court in

Tika Ram v. State of U.P., (2009) 10 SCC 689 and Chameli

Singh & Ors. v. State of U.P. & Ors., 1996 (2) SCC 549. We

may, however, note that the facts in Tika Ram‟s case

(supra) speak for themselves where large-scale

development in utilization of acquired land after acquisition

was stated to be apparent on the face of the record. A

number of houses had been constructed with third-party

interest created in favour of plot-owners. The whole

township had come up, the houses and lands had been

allotted, sold and re-sold, awards had been passed and

overwhelming majority of land-owners had also accepted

the compensation including some of the appellants therein.

Similarly, in Chameli Singh & Ors.‟s case (supra), the

aspect of there being material on record to show urgency

was emphasized. The importance of providing housing to

dalits, tribes and the poor was emphasized and it was

observed that so long as the problem is not solved and the

need is not fulfilled, the urgency continues to subsist.

Thus, the aspect of providing housing to the poor and

under-privileged weighed with the Court.

13. Learned counsel also stated that various judgments on the

issue of invocation of emergency clause have also been

examined in Nand Kishore Gupta & Ors. v. State of U.P. &

Ors., JT 2010 (10) SC 521. Here again, the issue of

emergency clause and its invocation was considered in the

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context of the construction of Yamuna Expressway and it

was held that there was material before the State

Government to dispense with the enquiry under Section 5A

of the said Act. The project was enormous one and the

likelihood of encroachments, number of appellants would

required to be heard and the time taken for the purpose

were held to be material, especially as the project had

lingered already from 2001 till 2008.

14. We are of the view that certain important pronouncements

on this aspect needs to be taken note of arising from the

pronouncements of this Court and the Supreme Court.

15. In Vasant Kunj Enclave Housing Society Limited through its

President & Ors. v. Union of India & Ors., 2006 (89) DRJ

406, it was observed in para 26 as follows :-

"26. I find it difficult to read in this note anything concerning the question whether or not an enquiry under Section 5-A of the Act qua the land belonging to the petitioners should be conducted. The note does not even address itself to that question leave alone propose to the Lt. Governor any particular course of action in regard thereto.

All that the note proposes is the issue of a notification under Section 6 and 17(4) for Zone I and II, taking over of possession of area not covered by court order in Zone I and II, issue of a corrigendum in respect of Zone III and affording the owners an opportunity for filing objections under Section 5-A of the Act. The note also seeks approval of instructions to the DDA to ensure that no further construction comes up in Zone III during the time the objections are heard. Significantly, Lt. Governor has approved the note which inter alias implies that those owning farm houses in Zone III may be given an opportunity of filing objections under Section 5-A. The order passed by the Lt. Governor however does not demonstrate application of mind leave alone record any reasons for dispensing with such an enquiry under Section _____________________________________________________________________________________________

17(4) of the Act in regard to other area notified for acquisition. Just because the Lt. Governor agreed to afford an opportunity to the farm house owners for filing objections under Section 5-A, it cannot be said that a proper consideration of the question had taken place nor can it demonstrate application of mind by the competent authority. Any inference from these notes which are sketchy and which do not directly address the issue in the manner it ought to be, would be far-fetched and unsustainable. If the law requires, as it does in the instant case, that the authority passing the order should apply its mind properly, such application of mind cannot be readily inferred. That is especially so when the order passed by the authority affects valuable civil rights of the citizens. As a matter of fact, the greater the potential of mischief, the more careful and objective should the authority passing the order be. There is also no gainsaying that while acquisitions made for public purpose are at times inevitable, hardship is more often than not implicit for expropriated owners in any compulsory acquisition. Adherence to the requirements of law and the procedure established for the purpose must, therefore, be scrupulously ensured lest the procedural safeguards that the law provides to the owners against arbitrary acquisitions are reduced to bare rituals. I, therefore, agree with the view expressed by brother Madan Lokur, J. that there was no due and proper application of mind on the part of the Lt. Governor to the question of dispensing with the enquiry either before the issue of the notification under Section 17(4) or at any time thereafter."

(emphasis supplied)

16. In Essco Fabs Pvt. Ltd. & Anr. v. State of Haryana & Anr., JT

2008 (12) SC 315, the Supreme Court after noticing all the

relevant provisions of the said Act as also the case-laws

held as under :-

"44. In our judgment, from the above case law, it is clear that normal rule for acquisition of land under the Act is issuance of notification under Sub-section (1) of Section 4, hearing of objections under Section 5A and issuance of final notification under Section 6 of the Act. Award will be made by the Collector, notice has to be issued to the land-owners or the person interested and _____________________________________________________________________________________________

thereafter possession can be taken. Section 17, no doubt, deals with special situations and exceptional circumstances covering cases of „urgency‟ and „unforeseen emergency‟. In case of „urgency‟ falling under Sub-section (1) of Section 17 or of „unforeseen emergency‟ covered by sub- section (2) of Section 17, special powers may be exercised by appropriate Government but as held by a three Judge Bench decisions before more than four decades in Nandeshwar Prasad & Anr. v. The State of Uttar Pradesh & Ors., AIR 1964 SC 1217 and reiterated by a three Judge Bench decision in Union of India & Ors. v. Mukesh Hans etc., 2004 (8) SCC 14 even in such cases, inquiry and hearing of objections under Section 5A cannot ipso facto be dispensed with unless a notification under Sub-section (4) of Section 17 of the Act is issued. The legislative scheme is amply clear which merely enables the appropriate Government to issue such notification under Sub- section (4) of Section 17 of the Act dispensing with inquiry under Section 5A if the Government intends to exercise the said power. The use of the expression „may‟ in sub-section (4) of Section 17 leaves no room of doubt that it is discretionary power of the Government to direct that the provisions of Section 5A would not apply to such cases covered by Sub-section (1) or (2) of Section 17 of the Act.

45. In our opinion, therefore, the contention of learned Counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by sub-section (1) or (2) of Section 17 of the Act, Sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections under Section 5A of the Act. Acceptance of such contention or upholding of this argument will make sub-section (4) of Section 17 totally otiose, redundant and nugatory.

... ... ... ... ... ... ... ...

47. In the instant case, the facts are eloquent.

Initial action of acquisition of land was taken as early as in 1982 but the proceedings lapsed. In 1991, when Essco made an application praying for change of user of land, it was rejected on the ground that the land was likely to be required for public purpose. Nothing, however, was done for about a decade. It is only in 2001 that again _____________________________________________________________________________________________

Notification under Section 4 was issued and urgency clause was applied. We are, therefore, satisfied that the ratio lad down in Mukesh Hans squarely applies to the facts of the case. No urgency clause could have been invoked by the respondents and inquiry and hearing of objections provided by Section 5A of the Act could not have been dispensed with. The actions of issuance of urgency clause under sub-section (4) of Section 17, dispensing with inquiry under Section 5A and issuance of final notification under sub-section (1) of Section 6 are required to be quashed and they are accordingly quashed."

(emphasis supplied)

17. In Mahender Pal & Ors. v. State of Haryana & Ors., JT 2009

(13) SC 670, the Apex Court held that even though laying

down a road is one of the purposes mentioned in Section

17(2) for which sub-section (4) of Section 17 would apply.

However, it is not that Section 17(4) can be invoked

irrespective of the nature of cases or irrespective of the

road to be constructed. To dispense with the enquiry

under Section 5A of the said Act, the merits have to be

considered. The observations of the Apex Court were in

the following terms :-

"11. The Act has been enacted for the acquisition of land for public purposes and for Companies. Having regard to the provisions contained in Article 300A of the Constitution of India as also the provisions of Act, the State in exercise of its power of `eminent domain' may deprive a person of his right to a property only when there exists a public purpose and a reasonable amount by way of compensation is offered for acquisition of his land. The Act fulfills the aforementioned criteria. It, however, lays down the details procedures therefor. It is also of some significance to notice that the Parliament, by reason of the Act, has imposed further restrictions / conditions for acquisition of land for the benefit of the land- owner.

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12. Right to file objection and hearing thereof to a notification issued by the appropriate government expressing its intention to acquire a property is a valuable right. Such a valuable right of hearing and particularly in a case of this nature could have been taken away only if conditions precedent for exercise of this emergency power stood satisfied. Sub-section (4) of Section 17 of the Act is an exception to Section 5A of the Act.

13. An opinion of the government in this behalf is required to be formed if there exists an emergency. Existence of the foundational fact for invoking the aforementioned provision is, therefore, a sine qua non for formation of opinion. Such an subjective satisfaction must be based on an objective criteria. Ipse dixit on the part of the State would not serve the purpose. Appellants, in our opinion, had made out a case for examination of their cases in details. The nature of constructions and other features of the land sought to be acquired have been noticed by us hereinbefore."

(emphasis supplied)

18. In Babu Ram & Anr. v. State of Haryana & Anr., JT 2009

(13) SC 99, the Supreme Court held :-

"22. The observations made both in State of Punjab v. Gurdial Singh, (1980) 2 SCC 471 and in Om Prakash v. State of U.P., (1998) 6 SCC 1 assign a great deal of importance to the right of a citizen to file objections under Section 5A of the L.A. Act when his lands are being taken over under the provisions of the said Act. That in the said decisions, such right was elevated to the status of a fundamental right, is in itself sufficient to indicate that great care had to be taken by the authorities before resorting to Section 17(4) of the L.A. Act. and that they had to satisfy themselves that there was an urgency of such nature as indicated in Section 17(2) of the Act, which could brook no delay whatsoever."

(emphasis supplied)

19. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur

Chenai & Ors., AIR 2005 SC 3520, the Apex Court observed

in as under :-

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"7. The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non-compliance or substantial non- compliance of the provisions of Section 5-A of the Act cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision making process itself is in question, the power of judicial review can he exercised by the court in the event the order impugned suffers from well-known principles, viz., illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner."

(emphasis supplied)

20. The aforesaid authoritative pronouncements of the

Supreme Court were the guiding factor in a judgment of a

co-ordinate Bench of this Court in Sarla Goel & Ors. v.

Union of India & Ors., 168 (2010) DLT 389. In the facts of

the case, the invocation of emergency powers under the

said Act were sought to be challenged on grounds of denial

of opportunity to file objections under Section 5A of the

said Act. On facts, it was found that DDA had taken its own

sweet time in movement of the file for more than two and

a quarter years in respect of the widening of Auchandi -

Bawana Road and it was found that the petitioners could

not be denied an opportunity of hearing and the valuable

right under Section 5A of the said Act could not be taken

away in such a situation and quashed the notification

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insofar as it sought to invoke the powers of Section 17(1)

and 17(4) of the said Act as also the declaration under

Section 6 of the said Act. The following conclusions arise

from this judgment :-

i. In case of invocation of the emergency provisions, there

has to be application of mind at two stages. Firstly, while

deciding the issue of urgency under Section 17(1) of the

said Act and thereafter resorting to dispensation with

Section 5A of the said Act in case of such urgency by

invoking Section 17(4) of the said Act.

ii. Since it is in exercise of power of eminent domain that a

sovereign may acquire property which does not belong to

it, as a general rule, before exercise of power of eminent

domain, law must provide an opportunity of hearing

against the proposed acquisition. It is in view thereof

that a specific provision has been inserted as per Section

5A of the said Act.

iii. Even when urgency exists in terms of Sections 17(1) &

17(2) of the said Act enquiry contemplated by Section 5A

cannot ipso facto be dispensed with which is clear from

sub-section (4) of Section 17 of the said Act. It is, thus,

envisaged that even in case of urgencies as

contemplated in Sections 17(1) & 17(2) of the said Act,

the owner of property should not be deprived of his right

to property and possession thereof without following

proper procedure of law as contemplated by Section 5A

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of the said Act unless the urgency or emergency is of

such a nature that the Government is convinced that

holding of enquiry or hearing of objections may be

detrimental to public interest. Thus, in order to dispense

with the provisions of Section 5A of the said Act, the

urgency should be of such a nature which can brook no

delay.

21. A bare perusal of the above-noted authoritative

pronouncements of the Apex Court makes it amply clear

that under Section 17(4) of the said Act, the power of the

appropriate Government to issue notification in order to

dispense with inquiry under Section 5A thereof is

discretionary, but if the Government intends to exercise

the said power, it is to be based on the relevant material.

In other words, the opinion of the appropriate Government

is to be formed on the basis of subjective satisfaction

arrived at on the basis of objective criteria and mere ipse

dixit on the part of the Government would not suffice or

serve the purpose. Thus, if the requisites contained in the

said provisions are not complied with, the same would

result in making Section 17(4) nugatory and otiose as the

existence of a foundational fact is sine qua non for invoking

the emergency powers under Section 17(4) of the said Act.

Ordinarily the procedure has to be followed and there must

be a real case of emergency and not a normal process of

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planning which should give rise to issuance of notification

under Section 17 of the said Act.

22. This Court recently in WP (C) No. 3274/1998 titled „Niranjan

Singh v. Union of India‟ decided on 06.05.2010 while

dealing with a notification under Sections 4 & 17 of the

said Act for acquiring the land for construction of „Multi-

Purpose Community Centre‟ (MPCC) held as under :-

"... In view of the judgment in Deepak Bhardwaj v. Union of India, (2001) 92 DLT 891, the issue is no more res integra. The said case also dealt with a notification for development of a growth point under the Mini Master Plan of Delhi in a rural area and emergency powers were invoked. It was held that these are matters of development through planning which is an on-going processes and it is not a matter of urgency which cannot brook a summary enquiry under Section 5-A of the said Act.

Learned counsel for the respondents is not able to seriously dispute that the principles laid down in the case of Deepak Bhardwaj (supra) are squarely applicable in the facts of the present case which are almost identical. There is, thus, no case made out for the waiver of the right under Section 5-A of the said Act. It need hardly be emphasized that in matters of such compulsory acquisition, the procedure must be strictly followed as the right to property still remains a Constitutional Right under Section 300A of the Constitution of India. Section 5-A is a right conferred on the person, whose land is being acquired, to be heard and to object to the acquisition and the waiver of such a right under Section 17 of the said Act is intended to be invoked only in cases of real emergency."

(emphasis supplied)

23. It is in the context of the aforesaid judgments that the

records resulting in the formation of opinion have to be

examined. It is on 20.08.1991 after about 14 months that

the Director (LM) while referring to quashing of the earlier

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notification has sought issuance of a fresh notification

under Sections 4, 6 and 17(1) of the said Act. All that is

stated is that the land is urgently required for Vasant Kunj

Scheme. It has been observed, "Full justification in view of

the invocation of Section 17(1) of the LA Act is that the

above-said land is required for the above-mentioned

purpose". Nothing more and nothing less. This has been

followed up with reminders.

24. In the noting sheet of the Land & Building Department, it

has been mentioned that the land is urgently required for

the integral part of Vasant Kunj Phase II Project. On

analysis of the matter, the note penned down by the

Commissioner & Secretary (L&B and PWD) dated

05.08.1993 is material and reads as under :-

"Please see the foregoing note from page 13 ante. DDA have proposed to acquire 12.15 bighas of land in village Kasoompur for a public purpose, viz. Planned Development of Delhi, applying the urgency clause.

The urgency clause has been applied very frequently in the past; it has been decided to examine each proposal and apply it more sparingly in future. This was agreed to by the DDA.

I have discussed the present proposal with the Deputy Director (New Lease), who was deputed by the Commissioner (Land Management). The Deputy Director states that this land is required as part of the Vasant Kunj, Phase - II, Development Project which is being planned. The justification for applying the urgency clause which he gives is that the certain unauthorized structures are coming up on this land. This area has, in fact, been declared as a Development Area and there is nothing to stop DDA from demolishing the unauthorized constructions that are taking place on it. This, in

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itself, therefore, is not a sufficient justification for invoking the urgency clause.

The second reason mentioned by the Deputy Director is that the surrounding land has already been acquired. The acquisition of this particular land was quashed by the High Court for non-use of the land acquired land; the copy of the High Court‟s order may be seen at page 7-8/C.

Given the circumstances, it may be more appropriate to simply acquire the land in the normal manner rather than inviting further challenge. Normally, in any case, the amended Act ensures that DDA get possession in three years at most, which should not create undue difficulty for them considering that the project is at the planning stage.

If LG approves, instead of applying the urgency clause, a notification may be issued under Section 4 of the Land Acquisition Act alone. Two alternative draft notifications applying and not applying the urgency clause are placed below for consideration.

sd/-

(Jagdish Sagar ) Commissioner & Secretary (L&B and PWD)

Lieutenant Governor"

(emphasis supplied)

25. Surprisingly on the file being put up to the Lieutenant

Governor, all that is stated is as under :-

"Notification under urgency clause approved.

2. DDA has full authority to demolish unauthorized construction in any Development Area. That authority must be fully exercised. Pl. tell DDA urgently."

26. The aforesaid notings, thus, clearly show that after the

judgment of the Division Bench of this Court quashing the

earlier notification, it took 14 months for the DDA to move.

The only reason stated is that it was required for the

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housing project. The plea that the area was built around is

incorrect and misconceived as DDA itself has filed plans to

show that no construction in the surrounding area has

taken place except the Hill View Apartments. The Vasant

Kunj Scheme is a large one and it is not as if development

takes place in the complete scheme running over large

tracks of land. The area, of course, is now preserved as a

green area which itself shows absence of any development

or construction in the area.

27. The notings show a detailed examination by the

Commissioner and Secretary (Land & Building and PWD),

who has given cogent reasons for not applying the urgency

clause. He has rightly observed that such urgency clause

should be sparingly used and, thus, the opinion given was

that the acquisition should follow the normal course of

action. In fact, even a period of three years to take

possession has been opined as not to cause any undue

delay considering the project is at the planning stage. This

completely belies the claim of the respondents. All that

the Lieutenant Governor has unfortunately done is to say

that the notification on the urgency clause is approved

without giving any opinion to the contrary or the reasons

therefor.

28. The Supreme Court in Nand Kishore‟s case (supra) has held

that likelihood encroachment is a ground for dispensing

with the enquiry under Section 5A of the said Act. The

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note, which was put up in the present case by the Land

and Building Department, shows that one of the reasons

for dispensing with the enquiry was the coming up of

unauthorized structures. The note as approved by the

Lieutenant Governor also shows that he has weighed this

aspect of unauthorized construction to invoke the urgency

clause. In the present case, there cannot arise any

question of construction of unauthorized structures

because the petitioner is a society owning and possessing

private land and in respect of which the society had, in

fact, applied for sanctioning of the plans for construction.

On this land, therefore, there is no question of any

encroacher making an unauthorized construction and nor is

there any issue of the society making any unauthorized

construction because in fact it had applied for sanction of

the plans and had filed a writ petition against the DDA for

refusing to sanction the plans.

29. We may also note that it is not necessary if a case is

covered under Section 17(1) of the said Act, Section 17(4)

thereof would necessarily apply, in view of the

observations in Essco Fabs Pvt. Ltd. & Anr.‟s case (supra).

The power under Section 17(4) of the said Act is

discretionary and there should be proper application of

mind while invoking the same.

30. We are also in agreement with the submission of learned

senior counsel for the petitioner that when the respondents

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themselves have taken a period of three and a half years

to issue a fresh notification, the minimal period which is

required for filing objections and their disposal under

Section 5A of the said Act could easily have been granted

without causing any delay. The procedure under Section

5A reads as under :-

"5A. 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 a Company may, within thirty days from 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 authorized by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, 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 appropriate Government on the objections shall be final.

(3) For the purpose 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."

31. If the aforesaid procedure is followed, such objections can

be decided within a period of 60 days. We are, thus,

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clearly of the view that in the given facts of the case, the

invocation of the emergency powers was wholly unjustified

and the petitioner should not have been deprived of the

right to file objections under Section 5A of the said Act.

We cannot lose sight of the fact that Section 5A is a

valuable right given under the said Act, which is

expropriatory in nature. The right to land may not be a

Fundamental Right, but is certainly still a Constitutional

Right under Article 300A of the Constitution. The right

cannot be deprived of by exercise of an emergency power

even denying the right to file objections in such a manner

having no application of mind. The respondents‟ case is

itself defeated by the note of the Commissioner and

Secretary (L&B and PWD) dated 05.08.1993. No doubt this

note needs approval of the Lieutenant Governor, but, in

fact, the Lieutenant Governor has not even rejected the

note or opined any reasons to differ from the same. Two

alternative draft notifications were submitted for approval -

one under urgency clause and one without it. The

Lieutenant Governor has simply directed issuance of

notification under urgency clause by approving it.

32. The request of DDA was actually only under Section 17(1)

of the said Act, which was also misconceived in view of the

ground realities. There was no cogent reason for the same

as is obvious from the letter of DDA dated 20.08.1991

which itself has been issued after about 14 months of

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quashing of the earlier notification. No part of the project

was really held up. It cannot be said that once

construction starts even in any part of a different phase of

Vasant Kunj or otherwise, the whole of Vasant Kunj land is

liable to be acquired invoking the emergency power. The

Commissioner and Secretary (L&B and PWD) vide his note

dated 05.08.1993 was conscious that each such proposal

should be examined carefully and the emergency powers

invoked sparingly in future. The justification for applying

urgency clause of unauthorized structures coming up was

not found to be a sufficient justification as nothing

prevented DDA from demolishing the unauthorized

constructions. As noticed above, the Lieutenant Governor

has not even whispered a word as to why this opinion

should be differed with and the normal process of

acquisition not followed.

33. We, thus, find that it is a fit case to issue a writ of certiorari

quashing the notification dated 13.09.1993 only to the

extent it invokes the emergency powers under Section

17(1) and 17(4) of the said Act. Ordered accordingly. We,

however, make it clear that the petitioner society is not

entitled to raise any construction on the land until and

unless it obtains sanction from the concerned authorities

and must subscribe to the approved user of the land

including directions of the Supreme Court, if so applicable.

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34. The writ petition is allowed in the aforesaid terms leaving

the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

November 22, 2010                                       VALMIKI J. MEHTA, J.
madan

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