Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6419 OF 2019
(Arising from SLP(C) No. 9811/2018)
Union of India and another ..Appellants
Versus
Mohiuddin Masood and others ..Respondents
J U D G M E N T
M.R. SHAH, J.
Delay condoned. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 10.04.2017 passed by the High Court of Judicature at
Allahabad in Writ Petition No. 2069 of 2010, by which the High Court
has allowed the said writ petition and has quashed and set aside the
notifications issued under Sections 4 & 6 respectively of the Land
Acquisition Act, 1894 (hereinafter referred to as the ‘Act’) with respect
to the land in question on the ground that the urgency clause was
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.08.20
18:11:11 IST
Reason:
illegally and wrongly invoked, the Union of India and the acquiring
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body, i.e., Director General of ITBP have preferred the present appeal.
3. That a request for providing about 75 acres of land for
establishing one Battalion Headquarter of ITBP at Kanpur Nagar was
made to the Government of Uttar Pradesh by the Director, Police
Finance, ITBP as due to increasing Counter Insurgency Operations,
Law and order duties of ITBP, VVIP security duties and Disaster
Management Operations, it was decided to establish Battalion
headquarter of ITBP at Kanpur Nagar, Uttar Pradesh and it was
requested to urgently acquire the land by finding out suitable pieces of
land. It appears that thereafter on 5.2.2009, the Special Secretary,
State of Uttar Pradesh wrote a letter to the District Magistrate, Kanpur
Nagar and Lucknow for identifying 72 to 75 acres of land for being
provided for establishment of the Battalion headquarter of ITBP.
3.1 That thereafter, notification under Section 4 of the Act came to be
issued on 2.9.2009 for urgent acquisition of the land in order to
facilitate the accommodation of the troops and for ITBP headquarter.
That immediately on issuance of notification under Section 4 of the
Act, respondent nos. 1 & 2 herein filed writ petition No. 54836 of 2009
before the Allahabad High Court challenging the Section 4 notification.
The aforesaid petition came to be dismissed by the High Court as pre
mature vide order dated 3.11.2009. That thereafter the State
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Government issued notification under Section 6 of the Act invoking
the urgency clause and invoking Section 17 of the Act, vide
notification dated 11.12.2009 and directed the Collector to take
possession of the land. That thereafter again and on issuance of
notification under Section 6 of the Act on 11.12.2009, respondent nos.
1 & 2 herein filed another writ petition No. 2069 of 2010 before the
Allahabad High Court. Before the High Court, number of submissions
were made on merits as well as on invoking the urgency clause and
dispensing with the procedure under Section 5A of the Act. The said
writ petition was opposed by the appellants justifying the invocation of
urgency clause. It appears that thereafter the State Government
acquired the land in the month of December, 2010 by adjudging the
amount of compensation to the tune of Rs.6,33,09,176.41 inclusive of
solatium for the land in question. 3.2 That by the impugned
judgment and order and following and relying upon the decision of
this Court in the case of Radhy Shyam v. State of U.P., reported in
(2011) 5 SCC 553 , the High Court has observed and held that the
State Government was not justified in invoking the urgency clause and
dispensing with the enquiry under Section 5 A of the Act. The High
Court has observed and held that there was no immediate urgency
and no facts existed before the State Government for invoking the
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power under Section 17(1) and Section 17(4) of the Act and
consequently has held the notifications under Section 4 & 6 of the Act
respectively as bad. However, taking note of the development of the
acquired land and investment of public money for development of
acquired land running into crores of rupees, subsequent to the
acquisition notifications, after considering and following the decision
of this Court in the case of Sahara India Commercial Corporation
Limited v. State of Uttar Pradesh, reported in (2017) 11 SCC 339 , the
High Court has observed and held that the notifications under Section
4 & 6 respectively of the Act are bad. The acquiring body should not
return the possession of the land in question, however, the High Court
has directed that the land owners be paid the compensation under the
provisions of the Right to Fair Compensation and Transparency in
Land Acquisition & Rehabilitation and ReSettlement Act, 2013
(hereinafter referred to as the ‘2013 Act’) and compensation to be
determined on the basis of the date of the order passed by the High
Court as the date of the acquisition notification, i.e., 22.12.2016.
3.3 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, holding and declaring Sections 4
& 6 notifications with respect to the land in question as bad by
holding that the invocation of the urgency clause and the provisions of
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Section 17(1) and 17(4) of the Act were bad, the Union of India and
another – ITBP have preferred the present appeal.
4. Ms. Madhavi Divan, learned Additional Solicitor General has
appeared on behalf of the appellants and Shri Ajit Kumar Sinha,
learned Senior Advocate has appeared on behalf of respondent nos. 1
& 2 herein – original writ petitioners.
4.1 Ms. Madhavi Divan, learned Additional Solicitor General has
vehemently submitted that in the facts and circumstances of the case
and considering the purpose for which the land in question was
acquired, the High Court has materially erred in observing and
holding that there existed no facts before the State Government for
invoking the powers under Section 17(1) and Section 17(4) of the Act.
4.2 It is further submitted by Ms. Madhavi Divan, learned Additional
Solicitor General that there was no delay at all in invoking the urgency
clause and issuance of the notification under Section 4 of the Act by
the State Government invoking the urgency clause.
4.3 It is further submitted by Ms. Madhavi Divan, learned Additional
Solicitor General that the High Court has failed to appreciate that the
land was urgently required by the appellants, due to increase in
Counter Insurgency Operations, Law and order duties of ITBP, VVIP
security duties and Disaster Management Operations, there was
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urgent need to establish Battalion headquarter of ITBP at Kanpur
Nagar. It is submitted that for establishing such Battalion
headquarter approximately 72 to 75 acres of land was required and
therefore it might have taken some time in identifying the land,
preparing the plan and thereafter issuing the notification under
Section 4 of the Act. It is submitted that the High Court has held the
invocation of the urgency clause bad on the ground that there was
much time gap between the proposal by the ITBP and issuance of the
notification under Section 4 of the Act. It is submitted that while
holding so, the High Court has not properly appreciated the true and
correct facts, more particularly the time taken from the proposal till
the issuance of the notification under Section 4 of the Act.
4.4 It is further submitted by Ms. Madhavi Divan, learned Additional
Solicitor General that the High Court has failed to appreciate the fact
that between notifications under Sections 4 & 6 respectively, the time
gap was only three months, which clearly indicates that there was an
urgency in the matter requiring dispensing with the enquiry under
Section 5A of the Act. It is submitted that had the Section 5A
compliance not been dispensed with, it would not have been possible
to publish Section 6 notification within three months.
4.5 It is further submitted by Ms. Madhavi Divan, learned Additional
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Solicitor General that from the very beginning the land was required
urgently for the aforesaid public purpose, more particularly for
establishment of the Battalion headquarter of ITBP and in the facts
and circumstances of the case, there was no delay/inordinate delay in
issuance of the notification under Section 4 of the Act. It is submitted
that therefore the finding recorded by the High Court that no facts
existed for invocation of the urgency clause cannot be sustained as the
same is contrary to the material on record.
4.6 It is further submitted by Ms. Madhavi Divan, learned Additional
Solicitor General that even the High Court has also wrongly observed
in the impugned judgment and order that so far no award has been
made by the Special Land Acquisition Officer with reference to the
notification under challenge. It is submitted that as such and in fact
the adjudgment of the compensation was pronounced after the
sanction of the District Magistrate on 27.12.2010 by the Land
Acquisition Officer.
4.7 Ms. Madhavi Divan, learned Additional Solicitor General has
further submitted that in the facts and circumstances of the case, the
decisions relied upon by the learned counsel appearing on behalf of
respondent nos. 1 & 2, more particularly the decision of this Court in
the case of shall not be applicable to the facts of
Radhy Shyam (supra)
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the case on hand, more particularly with respect to the public purpose
for which the land is acquired.
4.8 Making the above submissions and further submitting that on
the 95% of the land acquired, by now the development has already
taken place and public money to the tune of crores of rupees have
been spent, it is prayed to allow the present appeal.
5. The present appeal is vehemently opposed by Shri Ajit Kumar
Sinha, learned Senior Advocate on behalf of respondent nos. 1 & 2.
Taking us to various dates and events right from the date of proposal
by the ITBP till the notification under Section 6 of the Act was issued,
it is vehemently submitted by Shri Ajit Kumar Sinha, learned Senior
Advocate that in the facts and circumstances of the case, the High
Court has rightly observed and held that the State Government was
not justified in invoking the urgency clause and dispensing with the
enquiry under Section 5A of the Act.
5.1 It is further submitted by Shri Ajit Kumar Sinha, learned Senior
Advocate that in fact invoking the urgency clause was not explained
and/or justified by the State Government and therefore considering
the material on record, the High Court has rightly observed that there
was no real and substantive urgency which could justify invoking the
urgency clause under Section 17(1) of the Act and excluding the
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application of Section 5A of the Act.
5.2 It is further submitted by Shri Ajit Kumar Sinha, learned Senior
Advocate that as held by this Court in catena of decisions that enquiry
under Section 5A of the Act is a valuable statutory right available to
the land owners and unless there are compelling circumstances
warranting invocation of the urgency clause under Section 17(1) of the
Act, such statutory right cannot be taken away. In support of his
submission, learned Senior Advocate appearing on behalf of
respondent nos. 1 & 2 herein has heavily relied upon the decisions of
this Court in the cases of Radhy Shyam (supra); Prabhawati v. State of
Bihar, reported in (2014) 13 SCC 721; and Sahara India Commercial
Corporation Limited (supra).
5.3 It is further submitted by Shri Ajit Kumar Sinha, learned Senior
Advocate that as such in the present case and by passing the
impugned judgment and order, the High Court has tried to strike the
balance and instead of directing to return the land acquired, the High
Court has directed to pay the compensation as per the provisions of
the 2013 Act and the compensation to be determined on the basis of
the date of order as the date of the acquisition notification, i.e.,
22.12.2016.
5.4 It is further submitted by Shri Ajit Kumar Sinha, learned Senior
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Advocate that even till date the land owners have not received any
compensation of the land acquired. It is submitted therefore that
there is a noncompliance of Section 17(4) of the Act.
5.5 Making the above submissions, it is prayed to dismiss the
present appeal.
6. We have heard the learned counsel appearing on behalf of the
respective parties at length.
6.1 We have gone through and considered in detail the impugned
judgment and order passed by the High Court. We have also
considered the chronological dates and events leading to the issuance
of the notification under Section 4 of the Act and thereafter issuance
of the notification under Section 6 of the Act invoking the urgency
clause. At the outset, it is required to be noted that by the impugned
judgment and order the High Court has held invocation of urgency
clause and invocation of Section 17 of the Act as bad by observing that
there were no justifiable reasons to invoke the urgency clause and
dispensing with the enquiry under Section 5A of the Act. However,
considering the chronological list of dates and events and the object
and purpose for which the land was sought to be acquired, we are of
the opinion that the High Court has materially erred in holding that
invocation of the urgency clause was bad. The High Court has failed
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to appreciate and consider the fact that there was a time gap of only
three months between the notification under Section 4 and notification
under Section 6 respectively of the Act.
6.2 Even there was not much delay in considering the request made
by the ITBP to acquire the land. Right from the very beginning the
ITBP requested to acquire the land urgently as the land was urgently
required by the ITBP to establish Battalion headquarter due to
increase in Counter Insurgency Operations, Law and order duties of
ITBP and Disaster Management Operations. It is required to be noted
that for establishing such Battalion headquarter a large chunk of land
approximately 72 to 75 acres of land was required. Such a huge land
was required to be first identified at suitable places. Therefore, some
time is bound to be consumed between the proposal and issuance of
the notification under Section 4 of the Act. The said aspect has not at
all been considered by the High Court. Therefore, merely that some
time had been taken in identifying the land and in issuing actual
Section 4 notification, the High Court is not justified in observing that
there was no urgency at all and/or there were no grounds to invoke
the urgency clause. Therefore, in the facts and circumstances of the
case and considering the material on record, we are of the opinion that
the High Court has erred in observing and holding that invocation of
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the urgency clause was bad. We are more than satisfied that there
was a real urgency and therefore the urgency clause and Section 17 of
the Act was rightly invoked dispensing with the enquiry under Section
5A of the Act. Therefore, in the facts and circumstances of the case,
the decisions of this Court relied upon by the learned Senior Advocate
appearing on behalf of respondent nos. 1 & 2, referred to hereinabove,
shall not be applicable to the facts of the case on hand, more
particularly in the relied upon cases the acquisitions were either for
private parties and/or companies and in the present case the
acquisition was for establishing ITBP Battalion headquarter.
6.3 It is also required to be noted that on the land in question total
admeasuring 28.1398 hectares (19.7548 + 8.3850 hectares = 28.1398
hectares) there is a development on 90 to 95% of the land acquired
and 90 to 95% of the land has been put to use by the ITBP. It is also
required to be noted that so far as respondent nos. 1 & 2 herein are
concerned, out of the total land acquired, they were the owners/tenure
holders of plot nos. 2348 area 1.138 hectares, 2353 area 1.2800
hectares and 2354 area 0.2970 hectare only. As observed
hereinabove, the total land acquired was 28.1398 hectares and other
land owners have not questioned the acquisition. Therefore also, the
High Court ought not to have set aside the notifications under
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Sections 4 & 6 respectively of the Act which were with respect to the
acquisition of large chunk of land admeasuring 28.1398 hectares,
which was not under challenge by the other land owners except
respondent nos. 1 & 2 herein – original writ petitioners.
6.4 Now so far as the submission on behalf of the original writ
petitioners that there is a noncompliance of Section 17(4) of the Act
as 80% of the estimated amount of compensation was not deposited is
concerned, at this stage, counter affidavit filed by the Tehsildar before
the High Court is required to be considered. In the counter affidavit, it
has been specifically stated that after the notification under Section 4
of the Act was issued, the ITBP has deposited 10% of estimated
compensation amounting to Rs.3026675.00 vide treasury challan
dated 17.06.2009, 70% of estimated compensation amounting to
Rs.23674225.00 vide treasury challan dated 05.01.2009 and rest of
20% of estimated compensation amounting to Rs.6053350.00 vide
treasury challan dated 22.01.2010. In the counter affidavit, it is also
stated that notice dated 16.03.2010 was issued to the tenure holders
to take 80% of the estimated amount of compensation but they did not
come to take the compensation. Therefore, it cannot be said that
there is a noncompliance of Section 17(4) of the Act and the tenure
holders/land owners were not paid the 80% estimated amount of
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compensation as required.
6.5 Considering the aforesaid facts and circumstances of the case
and in the peculiar facts and circumstances of the case, we are of the
opinion that the High Court is not justified in setting aside the
notifications under Sections 4 & 6 respectively of the Act and/or
observing and holding that the invocation of Section 17 of the Act and
urgency clause was bad.
7. Now so far as submission on behalf of the original writ petitioners
that they have not been paid any compensation is concerned, it is
required to be noted and as observed hereinabove, in fact, ITBP had
deposited the estimated amount of compensation in the year
2009/2010 itself and the land owners/tenure holders were served
with the notice to withdraw and/or take 80% of the estimated amount
of compensation but they refused to take the compensation.
Therefore, thereafter it is not open for the original writ petitioners to
make the grievance that they have not been paid any compensation.
Still, it will be open to them to withdraw the amount of compensation.
At this stage, it is required to be noted that in the year 2010 itself,
final award directing adjudgment of the compensation to the tune of
Rs.63309176.41 inclusive of solatium was published before that writ
petition was filed and compensation was not accepted.
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8. In view of the above and for the reasons stated above, the present
appeal is allowed. The impugned judgment and order passed by the
High Court is hereby quashed and set aside. Consequently, the writ
petition filed before the High Court by respondent no. 1 & 2 herein
stands dismissed. There shall be no order as to costs.
……………………………………..J.
[ARUN MISHRA]
……………………………………..J.
[M.R. SHAH]
NEW DELHI; ………………………………………J.
AUGUST 19, 2019. [B.R. GAVAI]
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