Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3604 OF 2009
[Arising out of SLP (Civil) No. 14187 of 2007]
Mahender Pal & Others …Appellants
Versus
State of Haryana & Others …Respondents
J U D G M E N T
S.B. SINHA, J:
1. Leave granted.
2. This appeal is directed against a judgment and order dated 10.05.2007
passed by the High Court of Punjab and Haryana at Chandigarh in Civil
Writ Petition No. 7008 of 2007.
3. On or about 6.01.2006, a notification under Section 4 read with
Section 17(4) of the Land Acquisition Act, 1894 (for short “the Act”) was
issued for acquisition of the land in question for an alleged public purpose,
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viz., for the development and utilization of land for residential/ commercial
purpose. A declaration under Section 6 of the Act was issued on 9.08.2006.
4. A writ petition was filed by the appellants challenging these
notifications which was dismissed as withdrawn with liberty to file a fresh
one on the same cause of action.
5. On 14.11.2006, the government issued a notification under Section 4
read with Section 17(4) of the Act and on 15.11.2006 as also a declaration
under Section 6 of the Act, for acquiring the land for public purpose, viz.,
for the development and utilization of land for outer ring road, green belt on
both side, Pataudi Road to Jhajjar Road in the area of village Gokalgarh,
District Rewari.
6. Appellants’ land was being used for residential purposes and which
also has the Samadhis of the ancestors of the appellants and a Shiva temple.
The revenue records confirm the existence of these pucca constructions.
7. On 14.03.2007, notices were issued to the appellants under Section 9
of the Act. Appellants filed objections thereto on 29.03.2007.
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8. A writ petition was filed by the appellants, which was dismissed in
limine by reason of the impugned judgment.
9. Appellants are, thus, before us.
10. The principal question which arises for consideration in this appeal is
as to whether in the facts and circumstances of this case the emergency
powers in terms of Section 17 of the Act could have been resorted to by the
State.
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.
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.
13. The purported public purpose for which the land is to be acquired is
for laying down a road.
We are not unmindful of the fact that the road connection is one of the
purposes mentioned in Sub-section (2) of Section 17 of the Act in respect
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whereof Sub-section (4) thereof would apply. But the same would not mean
that for the purpose of road connection irrespective of the nature of cases
and/ or irrespective of the nature of the road to be constructed; Sub-section
(4) of Section 17 of the Act could be invoked.
14. As an extraordinary power has been conferred upon the Appropriate
Government in terms whereof the normal procedure laid down under Section
5A of the Act could be dispensed with, the High Court, in our opinion,
should have entered into the merit of the matter. [See Mahadevappa
Lachappa Kinagi and Others v. State of Karnataka and Others (2008) 12
SCC 418]
In Union of India and Others v. Mukesh Hans [(2004) 8 SCC 14], this
Court held:
“ 32. A careful perusal of this provision which is
an exception to the normal mode of acquisition
contemplated under the Act shows that mere
existence of urgency or unforeseen emergency
though is a condition precedent for invoking
Section 17(4), that by itself is not sufficient to
direct the dispensation of the Section 5-A inquiry.
It requires an opinion to be formed by the
Government concerned that along with the
existence of such urgency or unforeseen
emergency there is also a need for dispensing with
Section 5-A inquiry which indicates that the
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legislature intended the appropriate Government to
apply its mind before dispensing with Section 5-A
inquiry. It also indicates that mere existence of an
urgency under Section 17(1) or unforeseen
emergency under Section 17(2) would not by itself
be sufficient for dispensing with Section 5-A
inquiry. If that was not the intention of the
legislature then the latter part of sub-section (4) of
Section 17 would not have been necessary and the
legislature in Sections 17(1) and (2) itself could
have incorporated that in such situation of
existence of urgency or unforeseen emergency
automatically Section 5-A inquiry will be
dispensed with. But then that is not the language of
the section which in our opinion requires the
appropriate Government to further consider the
need for dispensing with Section 5-A inquiry in
spite of the existence of unforeseen emergency.
This understanding of ours as to the requirement of
an application of mind by the appropriate
Government while dispensing with Section 5-A
inquiry does not mean that in each and every case
when there is an urgency contemplated under
Section 17(1) and unforeseen emergency
contemplated under Section 17(2) exists that by
itself would not contain the need for dispensing
with Section 5-A inquiry. It is possible in a given
case the urgency noticed by the appropriate
Government under Section 17(1) or the unforeseen
emergency under Section 17(2) itself may be of
such degree that it could require the appropriate
Government on that very basis to dispense with the
inquiry under Section 5-A but then there is a need
for application of mind by the appropriate
Government that such an urgency for dispensation
of the Section 5-A inquiry is inherent in the two
types of urgencies contemplated under Sections
17(1) and (2) of the Act.”
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15. In Union of India and Others v. Krishan Lal Arneja and Others
[(2004) 8 SCC 453], this Court held:
“16. Section 17 confers extraordinary powers on
the authorities under which it can dispense with the
normal procedure laid down under Section 5A of
the Act in exceptional case of urgency. Such
powers cannot be lightly resorted to except in case
of real urgency enabling the Government to take
immediate possession of the land proposed to be
acquired for public purpose. A public purpose,
however, laudable it may be, by itself is not
sufficient to take aid of Section 17 to use this
extraordinary power as use of such power deprives
a land owner of his right in relation to immoveable
property to file objections for the proposed
acquisition and it also dispenses with the inquiry
5A
under Section of the Act. The Authority must
have subjective satisfaction of the need for
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invoking urgency clause under Section keeping
in mind the nature of the public purpose, real
urgency that the situation demands and the time
factor i.e. whether taking possession of the
property can wait for a minimum period within
which the objections could be received from the
land owners and the inquiry under Section 5A of
the Act could be completed. In other words, if
power under Section 17 is not exercised, the very
purpose for which the land is being acquired
urgently would be frustrated or defeated. Normally
urgency to acquire a land for public purpose does
not arise suddenly or overnight but sometimes
such urgency may arise unexpectedly,
exceptionally or extraordinarily depending on
situations such as due to earthquake, flood or some
specific time-bound project where the delay is
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likely to render the purpose nugatory or
infructuous. A citizen's property can be acquired in
accordance with law but in the absence of real and
genuine urgency, it may not be appropriate to
deprive an aggrieved party of a fair and just
opportunity of putting forth its objections for due
consideration of the acquiring authority. While
applying the urgency clause, the State should
indeed act with due care and responsibility.
Invoking urgency clause cannot be a substitute or
support for the laxity, lethargy or lack of care on
the part of the State Administration.”
16. It is a well-settled principle of law that an exception carved out from
the main provision as a result whereof a citizen of India may be deprived of
his property particularly having regard to the fact that if it is considered to be
a human right, procedural safeguards laid down therefor must be
scrupulously complied with. It being an expropriatory legislation deserves
strict construction. {See Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
Chenai and Others [(2005) 7 SCC 627]; Devinder Singh and Others v. State
of Punjab and Others [(2008) 1 SCC 728]; and City Montessori School v.
State of Uttar Pradesh & Ors. [2009 (2) SCALE 740]}.
17. For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly and the matter is remitted to the
High Court for consideration of the matter afresh on merit.
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18. Mr. T.V. George, learned counsel appearing on behalf of the State,
submits that counter-affidavit before the High Court shall be filed within
four weeks. The State may also produce the records before the High Court
so as to enable it to arrive at a satisfaction that, in the facts and
circumstances of this case, the emergency power of the appropriate
government could be resorted to. We request the High Court to consider the
desirability of disposing of the matter expeditiously.
19. The appeal is allowed with the aforementioned directions with costs.
Counsel’s fee assessed at Rs.10,000/-.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Asok Kumar Ganguly]
NEW DELHI;
MAY 15, 2009