Rajesh Bhasin & Anr. vs Union Of India & Ors.
2011 Latest Caselaw 4339 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                               Date of decision : 06.09.2011


+                          WP (C) No. 3021 / 1998

RAJESH BHASIN & ANR.                    ...       ...       ...       ...PETITIONERS
                        Through : Mr. Bhuvan Gugnani and
                                  Mr. Gurvinder Pal Singh,
                                  Advocates.

                                   -VERSUS-

UNION OF INDIA & ORS.                   ...     ...       ...       ...RESPONDENTS
                        Through : Mr. Arun Birbal, Advocates
                                  for Respondents No. 2 to 4.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE RAJIV SHAKDHER


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. (ORAL)

1. The petitioners are the recorded owners and in physical

possession of the land and built up approved farm

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houses and structures located in Khasra Nos. 32/2 (2-

08), 32/3 min (3-07) 32/4/1 min (3-04), 32/7 (4-16) 32/3

min (2-19), 32/4/1 min (1-09), 32/4/2 (0-3), 32/5 (4-16)

and 32/6 (4-16) ad measuring 27 Bighas 18 Biswas

situated in the revenue estate of Village Baprola alias

Bapdola, Tehsil Punjabi Bagh, Delhi in pursuance of the

registered Sale Deeds. It is submitted that the land use

as per MPD - 2001 was agricultural farm house.

Mutations were also carried out in favour of the

petitioners and the construction is stated to have been

carried out in pursuance of the Building Plans duly

sanctioned by the Municipal Corporation of Delhi. The

construction is, however, stated to have been completed

only after fresh sanctions were obtained and the

completion certificate was issued on 01.05.1996. The

property is assessed to house-tax.

2. The petitioners are aggrieved by the notification issued

under Section 4 read with Section 17(1) of the Land

Acquisition Act, 1894 (for short, „the said Act‟) dated

12.08.1997 seeking to acquire the land in question for

public purpose, namely, setting up of a Growth Centre.

The petitioners claim to have made a representation to _________________________________________________________________________________________

the Lieutenant Governor on 28.08.1997 followed up by

various representations to de-notify the land, but to no

avail, though de-notification was recommended in case

of the land of certain other respondents. We may note

that the total area sought to be acquired was 505 Bighas

2 Biswas under the notification.

3. A declaration is stated to have been issued under

Section 6 of the said Act on 31.05.1998 and since steps

were being taken for taking over possession of the land,

the present writ petition was filed under Article 226 of

the Constitution of India challenging the said

notification.

4. It is the case of the petitioners that another writ petition

being CWP No. 2932/1998 titled „Prem Nath & Ors. v.

Union of India & Ors.‟ raising similar and identical

questions regarding another notification under Sections

4 and 17(1) of the said Act had been filed in which stay

of dispossession had been granted. Reference had also

been made to CWP No. 4002/1997 titled „Chaman Lal

Malhotra v. Union of India‟ in which also status quo order

was granted and the same was related to a notification

issued on the same day for acquiring the land in _________________________________________________________________________________________

question albeit for a different public purpose, i.e., Sports

School.

5. The writ petition in Chaman Lal Malhotra‟s case (supra)

was decided on 08.08.2005 and the impugned

notification was quashed. However, a Special Leave

Petition (Civil) No. 26722/2005 was filed by the

respondents and the operation of the Order of the

Division Bench of this Court dated 08.08.2005 was

stayed on 23.03.2006. It is in view thereof that this

matter got adjourned from time to time to await the

decision of the Supreme Court.

6. The decision has been finally rendered by the Supreme

Court in SLP (C) No. 26722/2005 on 25.04.2011,

whereby the petitions have been dismissed and interim

orders vacated by a speaking order.

7. We may also note for the purpose of completion of facts

that even in Prem Nath‟s case (supra), the writ petition

was allowed vide Order dated 26.09.2001 where land

was sought to be acquired for a multi-purpose

community centre by invoking the urgency provisions

under Section 17 of the said Act and dispensing with the

enquiry under Section 5A of the said Act. It was held _________________________________________________________________________________________

that even though the requirement for a multi-purpose

community centre would be a public purpose, there was

no valid reason for invocation of the emergency powers.

8. In so far as the case of Chaman Lal Malhotra (supra) is

concerned, the issue once again revolved around the

invocation of emergency powers under Section 17 of the

said Act and dispensing with the conduct of enquiry

under Section 5A of the said Act. It was observed that in

view of a catena of judgments of the Supreme Court and

of this Court, dispensing with such an enquiry has to be

with proper and careful application of mind. It was

found that there was no direction that a notification

under Section 17(4) of the said Act needs to be issued

leave alone any specific opinion recorded on the file that

the case was a fit one for invoking urgency clause as it

could brook no delay and, thus, enquiry under Section

5A of the said Act should be dispensed with. The

Supreme Court has given its imprimatur to this Order by

a reasoned decision in this behalf while dismissing the

SLP on 25.04.2011.

9. Learned counsel for respondents No. 2 to 4 does not

contest that the factual position and that the material _________________________________________________________________________________________

regarding invocation of the urgency clause is identical in

the two cases where notifications are of same date, but

submits that the public purpose for which the two lands

are sought to be acquired are different.

10. In our considered view, the aforesaid makes no

difference as the issue is of application of mind for

invoking the emergency powers under Section 17 of the

said Act for dispensing with the enquiry under Section

5A of the said Act - on which aspect, two cases are

stated to be identical. We draw strength from the

observations made in the Order passed in SLP (Civil) No.

26722/2005 dated 25.04.2011 where the principles

governing the matter in issue have been culled out,

specifically as set out in Sri Radhey Shyam (Dead)

through LRs & Ors. v. State of U.P. & Ors., 2011 (5) SCC

553 after detailed examination of the scheme of the Act

and review of various authoritative judicial

pronouncements on the subject, which are as follows :-

"(i) „Eminent domain‟ is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any _________________________________________________________________________________________

portion of the soil of the State including private property without its owner‟s consent provided that such assertion is on account of public exigency and for public good. Dwarkadas Shrinivas v. Shopalpur Spinning and Weaving Co. Ltd., AIR 1954 SC 119; Chiranjit Lal Chowdhuri v. Union of India, AIR 1951 SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp. (1) SCC 596.

(ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly. DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria, (2003) 7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No. 2334 of 2011 decided on 7.3.2011.

(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one‟s property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and / or shelter.

(iv) The property of a citizen cannot be acquired by the State and/or its agencies/ instrumentalities without complying with _________________________________________________________________________________________

the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons.

(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.

(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records.

(vii) The exercise of power by the Government under Section 17(1) does not necessarily _________________________________________________________________________________________

result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).

(viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters.

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

(emphasis supplied)

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It is in view thereof, it was observed that the principles

No. (vi), (vii) and (viii) would show that the view taken

by the Division Bench of the Delhi High Court was the

correct view in law.

11. In the end, we may only emphasize that the power of

eminent domain does not imply the right to take away

the land vested in a citizen (a constitutional right under

Article 300A of the Constitution of India) except by

procedure prescribed by law. The procedure envisaged

under the said Act requires various stages to be gone

through including the important stage as envisaged

under Section 5A of the said Act of an enquiry being

held. It is only in exceptional situations that the

emergency powers under Section 17 of the said Act can

be invoked where the requirements of the public

purpose is such that it would brook no delay. This was

certainly not the position in the present case. We may

add in the end that after the Supreme Court had

rendered the judgment in Chaman Lal Malhotra & Ors.‟s

case (supra), the respondents should have, in fact,

conceded the matter rather than inviting a judgment.

_________________________________________________________________________________________

12. Accordingly the impugned notification dated 12.08.1997

is quashed qua the land of the petitioners to the extent

that the same dispensed with the enquiry under Section

5A of the said Act, and consequently, all further actions

taken by the respondents pursuant to the said

notification including the declaration under Section 6 of

the said Act are also quashed. The order shall, however,

not prevent the respondents from taking any further

action on the basis of the preliminary notification as may

be permissible in law.

13. In view of the respondents insistence on contesting the

matter despite the judgment of the Supreme Court, we

consider it appropriate to impose costs on respondents

No. 2 to 4, quantified at Rs.25,000/-, to be paid to the

petitioners within two weeks from today.

14. The writ petition is allowed in the aforesaid terms.

SANJAY KISHAN KAUL, J.

September 06, 2011 RAJIV SHAKDHER, J.

madan

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