Sooraram Pratap Reddy & Ors. Vs. Distt. Collector, Ranga Reddy Dist.& Ors [2008] INSC 1512 (5 September 2008)
Judgment
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5509 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 2239 OF 2006 Sooraram Pratap Reddy & Ors. ... Appellants Versus District Collector, Ranga Reddy Distt. & Ors. ... Respondents WITH CIVIL APPEAL NO. 5510 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 1135 OF 2006 SURARAM KRISHNA REDDY & ANR. ... APPELLANTS VERSUS DISTT. COLLECTOR, CIVIL APPEAL NO. 5511 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 3387 OF 2006 V. KRISHNA PRASAD ... APPELLANT VERSUS DISTT. COLLECTOR, CIVIL APPEAL NO. 5512 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 2902 OF 2006 A.L. SADANAND ... APPELLANT VERSUS CIVIL APPEAL NO. 5513 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 3388 OF 2006 MALLA REDDY & ORS. ... APPELLANTS VERSUS CIVIL APPEAL NO. 5514 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 3389 OF 2006 BANDARI PENTAIAH & ORS. ... APPELLANTS VERSUS CIVIL APPEAL NO. 5515 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 3390 OF 2006 BANDARU PENTAIAH & ORS. ... APPELLANTS VERSUS
3 C.K. THAKKER, J.
1. Leave granted.
2. All these appeals are filed by the appellants being aggrieved and dissatisfied with the judgment and order passed by the High Court of Andhra Pradesh in various Letters Patent Appeals as also in Writ Petitions. By the said orders, the High Court rejected the prayer of the appellants for quashing proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as `the Act') for acquisition of land being illegal, unlawful, mala fide and in colourable exercise of power by the State.
Factual background
3. To appreciate the controversy in the present appeals, it is appropriate to refer to the facts in the first matter i.e. Civil Appeal arising out of SLP(C) No. 2239 of 2006 (Sooraram Pratap Reddy & Ors. v. Deputy 4 Collector, Ranga Reddy & Ors.). It was the case of the appellants before the High Court that the Government of Andhra Pradesh sought to acquire a large chunk of land in the name of `public purpose' for the purported development of `Financial District and Allied Projects'.
According to the appellants, the action has been taken in colourable exercise of power and in total violation of the Land Acqusition Act, 1894 as well as several other statutes in force in the State of Andhra Pradesh; such as, Andhra Pradesh Urban Area Development Act, 1975;
Zoning Regulations; Environment (Protection) Act, 1986; Water (Prevention and Control of Pollution) Act, 1974 etc. The action has been taken, alleged the appellants, with mala fide intention and oblique motive to transfer valuable land of small farmers to a foreign company and few selected persons with vested interest.
4. A notification under Section 4 of the Act was published in the State Government 5 Gazette on July 17, 2002. The said action was challenged and the validity of notification was questioned in a writ petition in the High Court of Andhra Pradesh. The High Court dismissed the petition following an earlier decision in Writ Petition No. 21712 of 2002 by observing that the writ petition involved similar issues.
The High Court, however, directed that `urgency clause' sought to be invoked by the Government under Section 17 of the Act was illegal, unlawful and unwarranted. That part of the notification was, therefore, set aside and the Authorities were directed to proceed to hear objections of the owners/interested persons by following procedure under Section 5A of the Act. According to the appellants, the High Court was wholly wrong in dismissing the writ petition relying on the judgment in Writ Petition No. 21712 of 2002 since in that case, the Court has considered only one issue; viz.
the acquisition was or was not for public purpose as the beneficiary was Andhra Pradesh 6 Industrial Infrastructure Corporation Limited (`APIIC' for short). Really, the property has been given in bounty to a foreign Company which was not lawful. The High Court failed to consider and decide several important and crucial issues raised by the small landowners.
5. Being aggrieved by the order passed in the writ petition, the appellants preferred Writ Appeal which was also dismissed. The appellants have, therefore, approached this Court by filing the present appeal. Initially, notice was issued. Several matters raising similar issues were also filed and all were ordered to be placed for hearing together.
6. We have heard learned counsel for the parties.
Submissions of appellants
7. The learned counsel for the appellants contended that the High Court was wholly wrong in dismissing writ-petitions as also writ appeals. According to the appellants, land 7 acquisition proceedings were clearly unlawful, illegal, mala fide and violative of the fundamental rights of the appellants. They were taken in colourable exercise of power by the authorities. The appellants are small land- holders and their only livelihood was dependant on land attempted to be acquired by the respondents. According to the appellants, there was no `public purpose' as defined in the Act and the land is acquired for a private foreign company. The acquisition was, therefore, bad in law and for a collateral purpose. It was also submitted that even if it is assumed for the sake of argument that the land could be acquired for a public purpose by a private Company, the procedure for acquisition of land by a private company under Part VII of the Act ought to have been followed and not the procedure under Part II providing for acquisition of land by the State Authorities. It was urged that in the era of globalization, if a foreign company wanted to 8 establish its business, it was required to follow the prescribed procedure and parties must be left to settle their deal by entering into mutual agreement for sale and purchase of properties. In other words, according to the appellants, power of `eminent domain' has no application to such cases. The provisions of the Act must be strictly construed and judicial scrutiny in such matters i.e. in the matters of acquisition of land by the State or its instrumentality for a private party, namely, for use and occupation of land by a foreign company should be very strict. It was further submitted that proceedings were totally mala fide which was clear from the fact that huge land owned and possessed by influential persons such as, Smt. Vijay Nirmala, a well-known actress and other persons in public life had been excluded. Thus, rich landlords and politically patronage persons have been excluded from acquisition of land and appellants and other persons who were small or 9 marginal farmers earning their bread were deprived of their property. Malicious action on the part of the State Authorities was also clear from the fact that though the land was sought to be acquired for industrial policy of the Government, initially, `urgency clause' was applied and Section 17 was pressed in service.
It was because of the High Court's intervention that urgency clause was quashed and authorities were directed to take action in accordance with law and only thereafter notices were issued and procedure under Section 5A of the Act was followed. On all these grounds, it was submitted that proceedings are liable to be quashed.
Submissions of respondents
8. The learned counsel for the respondents, on the other hand, supported the orders passed by the High Courts. They submitted that the land was acquired under the Act for `public purpose' after following 1 procedure laid down in the Act and the acquisition was legal, lawful and in consonance with law and no interference is called for by this Court under Article 136 of the Constitution.
9. Affidavits were filed by the contesting respondents. So far as the State Authorities are concerned, a counter-affidavit was filed by Special Deputy Collector, Land Acquisition (Industries), Hyderabad. In the said affidavit, it was, inter alia, contended that appellants were not small land-holders or marginal farmers. Most of them have converted agricultural lands unauthorizedly into housing plots and sold them to various builders/ developers/property dealers/estate agents and they were not cultivating the land. No doubt, there were certain small land-owners/farmers also. But, it was contended by the State, that because of industrial policy of the State Government, a decision was taken to construct `Information Technology Park', under the 1 Information Technology and Hardware Industrial Policy 2005-10 and for the said purpose land was sought to be acquired under the provisions of the Act. Proceedings were, therefore, initiated and necessary notification was issued. There was no illegality in the procedure contemplated under the Act for acquisition of land. APIIC is an instrumentality of State which was to pay the entire amount of compensation and such action could not be said to be illegal or contrary to law. It was, therefore, submitted that the appeals are liable to be dismissed.
10. APIIC in its affidavit filed by the General Manager (Law), contended that it was wholly owned undertaking of the Government of State of Andhra Pradesh and has been developing infrastructural projects in the State to facilitate socio-economic progress. According to the deponent, large extent of Government land in various villages of Ranga Reddy District in the periphery of Hyderabad were 1 handed over to the Corporation for the development of special projects like Software Lay Out, Indian School of Business, Indian Institute of Information Technology, Hitech City, National Games Village, Sports Stadia, Integrated International Convention Centre, Golf Course, Financial District, etc. Some of the projects have already taken shape and others are in various stages of development. It was submitted that time was a critical factor for implementation of those projects. In view of development of these special projects, the respondent-Corporation would be improving facilities in the round-about areas. It was for fulfillment of this industrial policy and completion of several projects that notifications under the Act were issued by the State. The High Court was satisfied about public purpose and hence rejected the ground put forward by land-owners that acquisition was not for public purpose. According to the High Court, however, the procedure laid down in the 1 Act was required to be followed by issuing notices under Section 5A and urgency clause under Section 17 of the Act could not have been invoked. In several cases, awards were made and possession of the land was also taken over. In some other cases, award is not passed and the land is still in the possession of the land- owners. That, however, does not mean that proceedings under the Act were illegal or unlawful.
11. According to APIIC, the Government of Andhra Pradesh introduced Tourism Department which established a transparent framework of enabling private sector and tourism sector in the State. The State had undertaken such projects under the name and style of "Establishment of Hyderabad as a Business-cum- Liaison Destination" with a goal of transforming into world class business destination, to be the leader in knowledge sector. Pursuant to such project, Integrated Convention Centre Complex (ICCC) is being 1 developed by the State Government on the basis of "Public Private Partnership" (PPP) format.
Under the said project, International Convention Centre and business hotel adjoining Hi-tech Business Centre were already established. Similarly, International Golf Champion Course with multiuse development was sought to be set up.
12. The Government of Andhra Pradesh designated APIIC as Nodal Agency for development of Integrated Project. Emaar Properties, PJSC, Dubai was selected in international competitive bidding for implementation of the project. The Government issued orders approving structure and implementation of the project. A collaboration agreement was entered into between APIIC and Emaar Properties, Dubai to implement the project. APIIC was having 26% share while Emaar Properties is having 74% share capital.
Joint Venture companies were incorporated with the Registrar of Companies, Andhra Pradesh, 1 Hyderabad with registered office at Hyderabad for taking different components of integrated project. Several projects are about to be over. Some projects are going on and some are to be undertaken. Total cost according to APIIC excluding operating and financial course of the integrated project is more than Rs.550 crores. It was submitted that considering the project in its entirety, the High Court was wholly right and fully justified in dismissing the petition and not interfering with the land acquisition proceedings.
13. Emaar had also filed an affidavit through General Manager, denying allegations and controverting averments made by the writ- petitioners contending that the petitions are misconceived and ill-founded and the petitioners were not entitled to any relief.
It was stated that the Special Deputy Collector, Land Acquisition in its affidavit has rightly stated that land-owners were not small farmers, small owners/marginal farmers 1 but they have illegally converted agricultural land into non-agricultural land and have sold/ transferred/ allotted to builders/ developers/ real estate owners of properties. Acquisition was for industrial policy of State and APIIC was the Nodal Agency which was an `instrumentality' of the `State'. The amount of compensation was to be paid by APIIC and acquisition was under power of `eminent domain'. Acquisition is not for foreign company or private party and the High Court was right in not insisting for following procedure laid down in Part VII of the Act as the case is covered by procedure prescribed in Part II of the Act. Public purpose was precise, perfect and lawful and the land was acquired in consonance with the procedure laid down in the Act. It was only with a view to delay the proceedings that petitions were filed by the petitioners which has resulted in gross injustice to Emaar which has made large investments.
14. According to Emaar, the City of Hyderabad was sought to be transformed into Business-cum-Liaison Destination as envisaged by the Government and public and private sectors' participation investment had been thought proper through Integrated Project under Industrial Policy of the State 2005-10.
Through APIIC, the State undertook the Integrated Project for establishing Hyderabad into world class business destination and a leader in the knowledge sector. Such project would indeed develop the State which would be in the larger interest of general public. It would enhance the value of Hyderabad into a Tourist-cum-Business Destination for domestic as well as international travellers. It was, therefore, submitted that the land acquisition proceedings were in consonance with the law and no case has been made out for interference with such proceedings and the appeals are liable to be dismissed.
Notifications 1
15. As already noted earlier, proceedings had been initiated by the authorities in 2002.
A notification under Section 4 of the Act was issued by the State Government on July 10, 2002 which was published in the Government Gazette on July 17, 2002. The said notification read as under;
THE ANDHRA PRADESH GAZETTE EXTRAORDINARY PUBLISHED BY AUTHORITY R.R. No. 25 HYDERABAD WEDNESDAY 17TH JULY 2002 No.G1/7180/2000 Dated : 10-07- 2002 FORM - 2 A DRAFT NOTIFICATION UNDER SECTION 4 OF 1894
AS AMENDED BY ACT XXXVIII OF 1923
1 Whereas it appears to Acquisition Act XXXIII the Government of Andhra of 1923, and the Pradesh that the land Governor of Andhra specified in the Pradesh hereby Schedule below and authorized Spl. Deputy situated at Nanakram Collector, LA (Ind), Guda Village, Hyderabad, and his staff Serilingampally Mandal, and workmen to exercise Ranga Reddy District is the powers conferred by needed for Public section 4(2) of the Act.
purpose, to wit for Under sub-section (4) of Development of New Section 17 of the Act, Projects by APIIC Ltd., the Governor of Andhra notice to that effect as Pradesh directs that in hereby given to all whom view of the urgency of it may concern in the case, the provisions accordance with the of Section 5-A of the provisions of section 4 Act, shall not apply to (1) of the Land this case.
Acquisition Act, 1 of 1894, as amended by the Land Acquisition Amendment made by the Land SCHEDULE . . . . . . . . .
16. It is thus clear that the land was proposed to be acquired for a public purpose, viz. for development of new projects by APIIC.
It is also apparent that urgency clause under Section 17 of the Act was applied and inquiry under Section 5-A was dispensed with.
17. A notification under Section 6 of the Act was also issued on the same day which was published in the Government Gazette on July 18, 2002. The said notification read as under;
THE ANDHRA PRADESH GAZETTE EXTRAORDINARY PUBLISHED BY AUTHORITY R.R. No. 26 HYDERABAD Thursday 18th July 2002 No.G1/7180/2000 Dated : 10-07- 2002 FORM - 5-A
DRAFT DECLARATION UNDER SECTION 6 OF THE LA ACT
Under Sec. (6) of the Order for the Land Acquisition Act, acquisition of the land the Governor of Andhra under Sub-Section (1)(2) Pradesh hereby declares of Section 17 of the that the land specified Act, the Governor of below and measuring Andhra Pradesh further Ac.80-35 gts/acre be the directs that the same a little more or possession of the said less is needed for land may be taken on the public purpose, wit for expiry of 15 days from Development of New the date of the Projects by APIIC publication of the Limited. Under Sections notice mentioned in 3 and 7 of the same Act, section 9(1) of the Act.
the Special Deputy A plan of the land is Collector, L.A. (Ind.), kept in the Special Hyderabad, is appointed Deputy Collector, L.A. to perform the functions (Ind), Hyderabad, and of Collector under the may be inspected at any Act and directed to take time during the office hours.
SCHEDULE . . . . . . . . .
2 Writ Petitions in High Court
18. The validity of notifications under Sections 4 and 6 of the Act was challenged by some of the land owners by filing Writ Petition No. 21712 of 2002 in the High Court of Andhra Pradesh at Hyderabad. The learned Single Judge, vide a judgment and order dated April 25, 2003 partly allowed the petition. He held that in view of counter-affidavit filed by the authorities, it could not be said that the acquisition was illegal or unlawful and, therefore, was not sustainable. Acquisition of land was in exercise of power of eminent domain and was intended for public purpose, to wit, for development of New Projects by APIIC Ltd. The acquisition was to enable the activities of APIIC, which was an instrumentality of State operating in the area of industrial infrastructure. The purposes of APIIC were demonstrably public purposes. It 2 was also held that the claim of the petitioners as being small farmers was not well-founded as no agricultural operations were being pursued by them as asserted by the authorities in the counter-affidavit which was not denied. The availability of alternative land as pleaded by the petitioners was also not correct since the lands available were not contiguous to the existing developed areas and hence could not be said to be `alternative'.
19. The Court, however, held that invocation of urgency clause under Section 17 of the Act and dispensing with enquiry as contemplated by Section 5-A of the Act was not legal. Section 5-A of the Act is a salutary provision which enables the persons whose land is proposed to be acquired to urge all grounds that may be available against the proposed acquisition at the enquiry. Unless real urgency is demonstrated, dispensing with the enquiry and invocation of urgency clause was irrational and arbitrary exercise of power by the State.
2 By such process, an enquiry under Section 5-A of the Act cannot be jettisoned on jejune grounds of irrational and unsubstantiated urgency. Since no such urgency could be demonstrated by the State, the action to the extent of dispensing with the enquiry was held to be bad. The petition was, therefore, partly allowed directing the authorities to issue notice to the landowners under Section 5-A of the Act and to take further proceedings in accordance with law.
20. The Court finally stated;
"However, it is clarified that the notice under section 4(1) of the Act is not interfered with".
21. Other petitions filed by other land owners were also partly allowed relying upon the decision in Writ Petition No. 21712 of 2002.
Writ appeals
22. Being aggrieved by the orders passed by the learned Single Judge, Writ Appeals were 2 instituted by both landowners as also by APIIC.
The Division Bench dismissed all the appeals holding that the land was needed for public purpose and the acquisition could not be said to be contrary to law. Similarly, the learned single Judge was also right in coming to the conclusion that on the facts and in the circumstances of the case, urgency clause could not have been applied under Section 17 of the Act and enquiry could not have been dispensed with under Section 5-A of the Act.
23. The Division Bench stated;
"The Financial District is a unique project being developed by the Corporation wherein the reputed financial institutions like Banks, Insurance etc., set up their offices to serve the needs of the trade, commerce and industry. The Corporation has already allotted land in the Financial District for Insurance Regulatory and Development Authority of India (IRDA) and also to SBH Staff Training Academy etc. It is stated that in order to ensure compactness of the Financial District, the lands in question are under acquisition for public purpose and to utilize them for new projects being developed by the Corporation.
2 The lands in question were identified and notified for acquisition after examining the matter carefully. The lands in question are essential so as to ensure compactness of the Financial District Project being developed by the Corporation. It is stated that there is no prohibition to acquire lands belonging to small farmers under the due process of law, if it is inevitable. The allegation of the appellants that there are vast extents of Government lands in the nearby villages and that there is absolutely no reason to acquire private patta lands is denied. The Government lands situated in the adjoining villages would not facilitate compactness of the Financial District Project being developed by the Corporation. It is stated that the lands in question are under acquisition following the due process of law for utilizing the same for public purpose, i.e. development of Financial District Project and other projects being development by the Corporation. The development works for the proposed works would be taken up as soon as the lands are acquired under the Land Acquisition Act".
24. In pursuance of the order passed by the learned single Judge and confirmed by the Division Bench of the High Court, enquiry under Section 5-A of the Act had been held. Notices were issued to the land owners and persons 2 interested, objections were invited, hearing was afforded and finally notification under Section 6 was issued on April 26, 2005 which was published on the next day, i.e. April 27, 2005 in the Government Gazette. The said notification reads thus;
THE ANDHRA PRADESH GAZETTE EXTRAORDINARY PUBLISHED BY AUTHORITY R.R. No. 85 HYDERABAD WEDNESDAY 27th April 2005 No.G1/7180/2000 Dated : 26-04- 2005 FORM - 5-A DRAFT DECLARATION UNDER SECTION 6 OF THE LAND
ACQUISITION ACT
2 Under Sec. (6) of the Land COLLECTOR,Land acquisition Acquisition Act, the (industries), Hyderabad, Government of Andhra Pradesh and may be inspected at any hereby declares that the time during the office land specified below in the hours.
schedule below and measuring NOTICE is hereby given acres (80-35) acres, be the under section 9(1) & 10 and little more or less is 9(3) & 10 of the Land needed for public purpose, Acquisition Act, that the wit for DEVELOPMENT OF NEW State Government proposed PROJECT by APIIC Limited, to acquire the lands under Sections 3 and 7 of mentioned in the schedule.
the same Act, THE SPECIAL All persons interested in DEPUTY COLLECTOR, LAND the lands are requested to ACQUISITION(INDUSTRIES), appear in person or by Hyderabad, is appointed to authorized agent, before perform the functions of the on SPECIAL DEPUTY Collector, under the Act and COLLECTOR, LAND ACQUISITION directed to take order for (INDUSTRIES), Hyderabad, the acquisition of the said SNEHA SILVER JUBILEE lands. Under sub-section BHAVAN, Collectorate (1) (2) of Section 17 of the premises, LAKDIKAPUL, Act, the Government of HYDERABAD on 21.05.2005 at Andhra Pradesh further 11-00 AM.
directs, that the possession of the said lands may be taken on the expiry of (15) days from the date of the publication of the notice mentioned in section 9(1) of the Act, a plan of the land is kept in the office of the SPECIAL DEPUTY SCHEDULE . . . . . . . . .
25. The said notification thereafter was challenged by the land owners in the High Court of Andhra Pradesh in the present proceedings.
As already observed earlier, the petitions were 2 dismissed and hence the property owners have challenged the said decision in this Court.
Statutory provisions
26. Before we deal with the contentions of the parties, it is appropriate if we examine the relevant provisions of the Land Acquisition Act, 1894. As the Preamble states, the Act has been enacted for the purpose of enabling the State to acquire land for public purposes as also for Companies. Section 3 defines various expressions. The expression `Company' is defined in clause (e) to mean a Company as defined in the Companies Act, 1956 (other than a Government Company). Clause (ee) defines `appropriate Government'. Clause (f) defines `public purpose'. The definition is inclusive in nature and includes purposes mentioned in sub-clauses (i) to (viii).
27. Part II (Sections 4 to 17) relates to `acquisition'. Section 4 confers power on the appropriate Government to issue preliminary 2 notification for acquisition of land needed or likely to be needed for any public purpose or for a Company. The proceedings for acquisition thus begin with issuance of notification under Section 4 which reads as under;
4. Publication of preliminary notification and powers of officers thereupon-- (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification.
(2) Thereupon it shall be lawful for any officer, either, generally or specially authorised by such Government in this behalf, and for his servants and workmen, to enter upon and survey and take levels of any land in such locality;
3 to dig or bore in the sub-soil;
to do all other acts necessary to ascertain whether the land is adapted for such purpose;
to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
to mark such levels, boundaries and line by placing marks and cutting trenches, and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle:
Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so.
28. Section 5A as inserted by the Land Acquisition (Amendment) Act, 1923 (Act 38 of 1923) provides for hearing of objections. It enacts that any person interested in any land 3 which has been notified under Section 4 of the Act 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. Such objections can be made to the Collector in writing. The Collector should grant the objector an opportunity of being heard in person or by any person authorised by him in that behalf or by pleader and should, after hearing all 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 (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 section also declares that the decision of the 3 Appropriate Government on the objections shall be `final'.
29. Section 6 relates to "declaration that land is required for a public purpose". The said section is material and may be quoted in extenso.
6. Declaration that land is required for a public purpose.- (1) Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders an different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub- section (1), irrespective of whether one report or different reports has or have been made (wherever required) under section 5-A, sub-section (2):
Provided that no declaration in respect of any particular land covered 3 by a notification under section 4, sub-section (1),-- (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
Explanation 1.-In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by an order of a Court shall be excluded.
Explanation 2.-Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be 3 deemed to be compensation paid out of public revenues.
(2) Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the date of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration the Appropriate Government may acquire the land in manner hereinafter appearing.
(emphasis supplied) 3
30. Once the declaration under Section 6 has been made, it shall be conclusive evidence that the land is needed for a public purpose.
31. Section 9 requires the Collector to issue notice to the person interested stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. It also enumerates particulars to be mentioned in the notice.
32. Section 11 enjoins the Collector to proceed to enquire into the objections (if any) which any person interested had filed pursuant to the notice and the value of the land at the date of the publication of the notification under section 4(1), and to make an award.
Section 11A prescribes period within which such award shall be made by the Collector. Section 12 declares award of Collector to be final subject to the provisions of the Act. Section 3 16 empowers Collector after he has made the award under section 11 to take possession of the land which shall thereupon vest absolutely in the Government, free from all encumbrances.
Section 17 deals with cases of urgency.
33. Part III (Sections 18 to 28A) provides for reference to Court and procedure to be followed. Part IV (Sections 29 to 30) deals with apportionment of compensation. Part V (Sections 31 to 34) relates to payment of compensation. Part VI (Sections 35 to 37) permits temporary occupation of land.
34. Part VII (Sections 38 to 44B) is another important part dealing with acquisition of land for Companies. Sections 39 provides for previous consent of appropriate Government and execution of agreement for such acquisition.
Section 40 declares that no such consent can be given unless the appropriate Government is satisfied either on the report of the Collector 3 under Section 5A(2), or upon an enquiry conducted in the manner laid down in Section 40 as to purpose of acquisition. Section 41 provides for agreement between the Company and appropriate Government in respect of the matters specified therein. Section 42 requires publication of agreement in Official Gazette.
Section 44A imposes a restriction on the Company for which any land is acquired under Part VII to transfer the land or any part thereof by sale, mortgage, lease, gift or otherwise except with the previous sanction of the appropriate Government. Section 44B likewise prohibits acquisition of land under Part VII except for purposes specified in Section 40 for private Companies.
35. Part VIII (Sections 45 to 55) deals with miscellaneous matters.
Eminent domain
36. `Eminent domain' may be defined as the right or power of a sovereign State to take 3 private property for public use without the owner's consent upon the payment of just compensation. It means nothing more or less than an inherent political right, founded on a common necessity and interest of appropriating the property of individual members of the community to the great necessities and common good of the whole society. It embraces all cases where, by the authority of the State and for the public good, the property of an individual is taken without his consent to be devoted to some particular use, by the State itself, by a Corporation, public or private or by a private citizen for the welfare of the public [American Jurisprudence, 2d, Volume 26, pp. 638-39, para 1; Corpus Juris Secundum, Volume 29, p. 776, para 1; Words & Phrases, Permanent Edition, Volume 14, pp. 468-70].
37. `Eminent domain' is thus inherent power of a governmental entity to take privately owned property, especially land and convert it to public use, subject to reasonable 3 compensation for the taking [vide P. Ramanatha Aiyar's Advanced Law Lexicon, Volume 2, page 1575].
38. The term `eminent domain' is said to have originated by Grotius, legal scholar of the seventeenth century. He believed that the State possessed the power to take or destroy property for the benefit of the social unit, but he believed that when the State so acted, it was obligated to compensate the injured property owner for his losses.
39. In his well known work `De Jure, Belli et Pacis', the learned author proclaimed;
"The property of subject is under the eminent domain of the State, so that the State or he who acts for it may use, alienate and even destroy such property, not only in the case of extreme necessity, in which even private person have a right over the property of other, but for the ends of public utility, to which ends those who founded civil society must be supposed to have the intended the private ends should give way".
40. Blackstone too believed that State had no general power to take private property of 4 land-owners, except on the payment of a reasonable price. The right of the State or the sovereign to its or his own property is absolute while that of the subject or citizen to his property is only paramount. The citizen holds his property subject always to the right of the sovereign to take it for a public purpose. The power of eminent domain is merely a means to an end; viz. larger public interest.
41. The power of eminent domain does not depend for its existence on a specific grant.
It is inherent and exists in every sovereign State without any recognition thereof in the Constitution or in any statute. It is founded on the law of necessity. The power is inalienable. No Legislature can bind itself or its successors not to exercise this power when public necessity demands it. Nor it can be abridged or restricted by agreement or contract.
42. Nichols in his classic book `Eminent Domain' defines it (eminent domain) as "the 4 power of sovereign to take property for public use without the owner's consent".
43. Another constitutional expert (Cooley) in his treatise on the `Constitutional Limitations', states;
"More accurately, it is the rightful authority which must rest in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common and to appropriate and control individual property for the public benefit, as the public safety, convenience or necessity may demand".
44. Willis in his well known work `Constitutional Law' discusses two view points as to exercise of power of eminent domain. The older and stricter view was that unless the property was dedicated for user by the public at large or a considerable section thereof, it would not be for public use or for public purpose. The modern and more liberal view, however, is that it is not an essential condition of public use that the property 4 should be transferred to public ownership or for public user and it is sufficient that the public derives advantage from the scheme.
45. In Fallbrook Irrigation District v. Bradley, (1896) 164 U.S. 112 : 41 Law Ed. 369, an Act of California provided for the acquisition of lands whenever 50 land-owners or a majority of them in a particular locality required it for construction of a watercourse, the object of the legislation being to enable dry lands to be brought under wet cultivation.
The validity of the Act was challenged on the ground that the acquisition would only benefit particular land owners who could take water from the channel and the public as such had no direct interest in the matter and consequently there was no public user. The contention was right if narrow view was to be accepted but was not well-founded if liberal view was to be adopted.
46. Rejecting the contention, the Court observed;
"To irrigate and thus bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to the land-owners, or even to anyone section of the State. The fact that the use of the water is limited to the land-owner is not, therefore, a fatal objection to this legislation. It is not essential that the entire community, or even any considerable portion thereof, should directly enjoy or participate in an improvement in order to constitute a public use.....It is not necessary, in order that the use should be public that every resident in the district should have the right to the use of the water." (emphasis supplied)
47. The above statement of law was reiterated in subsequent cases. In Rindge Co. v. Los Angles County, (1923) 262 US 700 : 67 Law Ed 1186, the Court observed that "it is not essential that the entire community or even a considerable portion should directly enjoy or 4 participate in an improvement in order to constitute a public use."
48. In New York City Housing Authority v. Muller, 270 NYP 333: 105 ALR 905, certain lands were acquired in pursuance of a governmental project for clearing slums and providing housing accommodation to persons with low income. The validity of the acquisition was questioned on the ground that the use was private and not public. The Court, however, rejected the contention and stated;
"Over many years and in a multitude of cases the courts have vainly attempted to define comprehensively the concept of a public use; and to formulate a universal test even though it were possible, would in an inevitably changing world be unwise if not futile"..... and holding that those purposes were for the benefit of the public the court went on to observe "It is also said that since the taking is to provide apartments' to be rented to a class designated as persons of low income or to be leased or sold to limited dividend corporations the use is private and not public. This objection disregards the primary purpose of the legislation. Use of a 4 proposed structure, facility or service by everybody and anybody is one of the abandoned, universal tests of a public use."
(emphasis supplied)
49. In Muray v. La Guardia, 291 NY 320, a Town Corporation was formed for acquiring certain lands. It was financed by the Metropolitan Insurance Company which held all the stocks of the Corporation. The owners of the lands contended that the scheme was to benefit only few individuals and the Insurance Company which was a private Corporation and there was no public use in the project. The Court, however, rejected the argument.
50. Dealing with the contention that there was no public use in the project because the Insurance Company was benefited, the Court observed:
"Nor do we find merit in the related argument that unconstitutionality results from the fact that in the present case the statute permits the city to exercise the power of "Eminent 4 domain" to accomplish a project from which 'Metropolitan' a private corporation may ultimately reap a profit. If upon completion of the project the public good is enhanced it does not matter that private interests may be benefited." (emphasis supplied)
51. In Samuel Berman v. Andrew Parker, (1954) 348 US 26 : 99 L Ed 27 : 75 S Ct 98, owners instituted an action of condemnation of their property under the District of Columbia Redevelopment Act, 1945. Plans were approved and the Planning Commission certified them to the agency for execution. The agency undertook the exercise of redevelopment of the area. It was contended by the land owners that the project was not public project and their property could not be acquired.
52. Rejecting the contention, the Court observed that it does not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, 4 aesthetic as well as monetary. It is within the power of the Legislature to determine that the community should be beautiful as also healthy, spacious as also clean, well-balanced as also carefully patrolled. According to the Court, the Congress and its authorized agencies have made determinations that take into account a wide variety of values and it was not for the Court to reappraise them. "If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way." (emphasis supplied)
53. Dealing with the contention that the project was undertaken by one businessman for the benefit of another businessman, the Court observed;
"The public end may be as well or better served through an agency of private enterprise than through a 4 department of government--or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. What we have said also disposes of any contention concerning the fact that certain property owners in the area may be permitted to repurchase their properties for redevelopment in harmony with the overall plan. That, too, is a legitimate means which Congress and its agencies may adopt, if they choose". (emphasis supplied) 54. In Hawaii Housing Authority v. Midkiff, 467 US 229 : 81 L Ed 2d 186 : 104 S Ct 2321, the Court held that, no doubt there is a role for Courts to play in reviewing a Legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is "extremely narrow". The Court emphasized that any departure from this judicial restraint would result in courts deciding on what is and what is not a governmental function and in their invalidating legislation on the basis of their 4 view on that question. And the Court would not substitute its judgment for a Legislature's judgment as to what constitutes a public use "unless the use be palpably without reasonable foundation."
54. Recently, in Susette Kelo v. City of New London, (2005) 545 US 469 : 125 S Ct 2655 :
55. 162 L Ed 439, the land owners challenged the city's exercise of eminent domain power on the ground that it was not for public use. The project in question was a community project for economic revitalization of the City of New London for which the land was acquired.
56. It was submitted by the learned counsel for the respondents that the facts in Kelo were similar to the facts of the present case. For that the counsel relied upon the Integrated Development Project. Dealing with the project, the Court stated;
5 "The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres).
Parcel 1 is designated for a waterfront conference hotel at the center of a `Small urban village" that will include restaurants and shopping.
This parcel will also have marinas for both recreational and commercial uses.
A pedestrian "riverwalk" will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighbourhood and linked by public walkway to the remainder of the development, including the state park.
This parcel also includes space reserved for a new U.S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk.
Parcels 5, 6 and 7 will provide land for office and retail space, parking, and water-dependent commercial uses."
57. The Court also stated;
5 "Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future `use by the public' is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example".
58. The Court noted the contention of the petitioners that `using eminent domain for economic development impermissibly blurs the boundary between public and private takings'.
It also conceded that quite simply, the government's pursuit of a public purpose might benefit individual private parties. But rejected the argument by stating-- "When the Legislature's purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of other kinds of socio-economic legislation are not to be carried out in the Federal Courts."
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