REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO.3261                       OF 2011   (Arising out of Special Leave Petition (C) No.601 of 2009)  

Sri Radhy Shyam (Dead) Through L.Rs. and others ……Appellants

Versus State of U.P. and others            ……Respondents

J U D G M E N T

G.S. Singhvi,  J.

1. Leave granted.

2. This appeal is directed against order dated 15.12.2008 passed by the  

Division Bench of the Allahabad High Court whereby the writ petition filed  

by  the  appellants  questioning  the  acquisition  of  their  land  for  planned  

industrial  development  of  District  Gautam  Budh  Nagar  through  Greater  

NOIDA Industrial  Development  Authority  (hereinafter  referred to  as  the,  

“Development Authority”) by invoking Section 17(1) and 17(4) of the Land  

Acquisition Act, 1894 (for short, “the Act”), as amended by Uttar Pradesh  

Act No.8 of 1974, was dismissed.

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3. Upon  receipt  of  proposal  from  the  Development  Authority  for  

acquisition of 205.0288 hectares land of village Makora, Pargana Dankaur,  

Tehsil and District Gautam Budh Nagar, which was approved by the State  

Government,  notification  dated  12.3.2008  was  issued  under  Section  4(1)  

read with Section 17(1) and 17(4) of the Act.  The relevant portions of the  

notification are extracted below:

“Under  Sub-Section  (1)  of  Section  4  of  the  Land  Acquisition Act 1894 (Act no.1 of 1894), the Governor is  pleased  to  notify  for  general  information that  the  land  mentioned in the scheduled below, is needed for public  purpose,  namely  planned  industrial  development  in  District  Gautam  Budh  Nagar  through  Greater  Noida  Industrial Development Authority.

2. The  Governor  being  of  the  opinion  that  the  provisions of sub-section 1 of Section 17 of the said Act,  are applicable to said land inasmuch as the said land is  urgently required, for the planned industrial development  in District  Gautam Budh Nagar through Greater  Noida  Industrial  Development  Authority  and  it  is  as  well  necessary to eliminate the delay likely to be caused by an  enquiry under Section 5A of the said Act, the Governor  is further pleased to direct under sub-section 4 of Section  17 of the said Act that the provisions of Section 5A of the  said Act, shall not apply.”

4. Since the appellants’ land was also included in the notification, they  

made a representation to the Chairman-cum-Chief Executive Officer of the  

Development  Authority  (Respondent  No.4)  with  copies  to  the  Chief  

Minister,  Principal Secretary, Housing and Urban Development, U.P.,  the  

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District  Magistrate  and  the  Special  Officer,  Land  Acquisition,  Gautam  

Buddh Nagar with the request that their land comprised  in Khasra No.394  

may not be acquired because they had raised construction 30-35 years ago  

and  were  using  the  property  for  abadi/habitation.  The  concerned  

functionaries/authorities did not pay heed to the request of the appellants and  

the State Government issued notification dated 19.11.2008 under Section 6  

read with Section 9 of the Act.

5. The  appellants  challenged  the  acquisition  of  their  land  on  several  

grounds including the following:

(i) That the land cannot be used for industrial purposes because in  

the draft Master Plan of Greater NOIDA (2021), the same is shown as  

part of residential zone.   

(ii) That they had already constructed dwelling houses and as per  

the  policy  of  the  State  Government,  the  residential  structures  are  

exempted from acquisition.

(iii) That  the  State  Government  arbitrarily  invoked  Section  17(1)  

read with Section 17(4) of the Act and deprived them of their valuable  

right to raise objections  under Section 5-A.

(iv)  The acquisition of land is vitiated by arbitrariness, mala fides and  

violation of Article 14 of the Constitution inasmuch as lands of the  

Member of Legislative Assembly and other influential persons were  

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left out from acquisition despite the fact that they were not in abadi,  

but they were not given similar treatment despite the fact that their  

land was part of abadi and they had constructed dwelling units.

6. In support of their challenge to the invoking of Section 17(1) and (4),  

the appellants made detailed averments in paragraphs 11 and 16 and raised  

specific grounds A and F, which are extracted below:

“11. That as per the scheme of the said Act,  each and  every section from sections 4 to 17 has an independent  role  to  play  though  there  is  an  element  of  interaction  between them.  Section 5-A, has a very important role to  play in the acquisition proceedings and it is mandatory of  the part of the government to give hearing to the person  interested  in  the  land  whose  land  is  sought  to  be  acquired.  It is relevant to point out that the acquisition  proceedings under the Act, are based on the principal of  eminent  domain  and  the  only  protection  given  to  the  person  whose  land  is  sought  to  be  acquired  is  an  opportunity under Section 5-A of the Act to convince the  enquiring authority that the purpose for which the land is  sought to be acquired is in fact is not a public purpose  and is only purported to be one in the guise of a public  purpose.

It  is  relevant  to  mention  here  that  excluding the  enquiry  under  Section  5-A  can  only  be  an  exception  where the urgency cannot brook any delay.  The enquiry  provides an opportunity to the owner of land to convince  the authorities concerned that the land in question is not  suitable for purpose for which it is sought to be acquired  or  the  same  sought  to  be  acquired  for  the  collateral  purposes.   It  is  pertinent  to  mention  here  that  the  respondents No. 1 & 2 without the application of mind  dispensed  with  the  enquiry  on  the  ground  of  urgency  invoking the power conferred by Section 17 (1) or (2) of  the  Act.   Further,  the  respondent  No.  1  &  2  without  

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application of mind did not considered the survey report  of the abadi of the village Makaura where the entire land  is being used for the purpose of residence and grazing of  cattle’s in Khasra No. 394.  Further, the petitioners were  surprised to find that their land have not been included in  the Abadi irrespective the same is in use for habitable  and keeping the cattle  and other uses.   The petitioners  have  constructed  their  houses  and  using  the  same  for  their  residence  and  keep  their  cattle’s  and  agricultural  produce.  The  survey  report  clearly  shows  that  the  impugned Khasra No. 394 is in use for residence.  The  report in respect of the land in question falling in Khasra  No.  394  given  by  the  respondent  No.  4  vide  communication  dated  26th March,  2007  is  annexed  as  Annexure 6.

16. That the said notification under Section 4 of the  Act  issued  by  the  respondent  No.  1  and  2  is  without  application  of  mind  and  there  was  no  urgency  in  the  acquisition  of  land,  for  the  planned  industrial  development, as the land, as per the master plan – 2021  the  land  of  the  village  Makaura  is  reserved  for  “residential”  of  which  the  respondent  No.  2  invoked  Section 17 (1) and subsection 4 of the Act by dispensing  with an enquiry under Section 5A of the Act.  The said  action on the  part  of  the respondents  are un-warranted  and is in gross violation of Article 14,19, 21 and 300A of  the constitution.  The such illegal act on the part of the  respondents show mala fide and their oblique motive to  deprive the owners from their houses in order to fulfill  their political obligations/promise to the private builders  by  taking  the  shelter  of  section  17  of  the  Act  by  dispensing with the enquiry under Section 5-A of the Act  as well as overlooked purpose as stipulated in the Master  Plan 2021 which is any way do not require any urgent  attention.  

A. That the whole acquisition proceedings  are void,  unconstitutional,  tainted  with  mala  fide,  abuse  of  authority  and  power,  non-application  of  mind,  and  as  such, liable to be quashed as violative of Articles 14,19  and 300-A of the Constitution of India.  

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F. That  the purpose stated in the notification under  Section 4 and declaration under  section 6 by invoking  section  17  is  presently  non-existent  and  thus  the  notification is  bad in law. There is  no urgency for the  invocation when the land is to be acquired for planned  development for the purpose of setting residential colony.  The impugned notification  is  without  any  authority  of law and volatile of Article 300-A of the Constitution  of India, which limits the power to acquire land to the  authority under the Land Acquisition Act.  Therefore, the  notification in question is bad in law.”

       (emphasis supplied)

7. The High Court negatived the appellants’ challenge at the threshold  

mainly on the ground that the averments contained in the petition were not  

supported by a proper affidavit.  This is evident from the following portions  

of the impugned order:

“Here the petitioners neither have pleaded that there exist  no material before  the State Government to come to the  conclusion that the enquiry under Section 5-A should be  dispensed with by invoking Section 17(4) of the Act nor  the learned counsel for the petitioners could place before  us  any  such  averment  in  the  writ  petition.  Though,  in  para-11 of the writ petition, an averment has been made  that the respondents no. 1 and 2 without the application  of  mind  dispensed  with  the  enquiry  on  the  ground  of  urgency invoking the power conferred by Section 17(1)  or (2) of the Act, but in the affidavit, the said paragraph  has  been  sworn  on  the  basis  of  perusal  of  record.  Similarly  in  para  16  of  the  writ  petition,  the  only  averment contained therein is as under:

“16. That the said notification under Section 4 of the  Act issued by the respondent No.1 and 2 is without  application of mind and there was no urgency in the  acquisition  of  land,  for  the  planned  industrial  development, as the land, as per the master plan-2021  

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the  land  of  the  village  Makaura  is  reserved  for  “residential”  of  which  the  respondent  No.2 invoked  Section  17(1)  and  sub-section  4  of  the  Act  by  dispensing with an enquiry under Section 5-A of the  Act. The said action on the part of the respondents are  un-warranted  and  is  in  gross  violation  of  Article  14,19,21  and  300A  of  the  Constitution.   The  such  illegal act on the part of the respondents show mala  fide and their oblique motive to deprive the owners  from  their  houses  in  order  to  fulfill  their  political  obligations/ promise to the private builders by taking  the shelter of Section 17 of the Act by dispensing with  the enquiry under Section 5-A of the Act as well as  overlooked purpose as stipulated in the Master Plan  2021  which  is  any  way  do  not  require  any  urgent  attention.”

However, in the affidavit, this para has not been sworn at  all  and  in  any  case  with  respect  to  dispensation  of  enquiry under Section 5-A by invoking  Section 17(4) of  the Act nothing has been said except that the exercise of  power is violative of Articles 14,19, 21 and 300-A of the  Constitution.

We, therefore, do not find any occasion even to call upon  the  respondents  to  file  a  counter  affidavit  placing  on  record,  the  material  if  any for  exercising  power  under  Section 17(1) and (4) of the Act in the absence of any  relevant  pleading  or  material  and  the  question  of  requiring the respondents to produce the original record  in this regard also does not arise.”

8. The  High  Court  distinguished  the  judgment  of  this  Court  in  Om  

Prakash v.  State  of  U.P.  (1998)  6  SCC 1,  albeit  without  assigning any  

cogent  reason,  relied  upon  the  judgments  of  the  Division  Benches  in  

Kshama Sahkari Avas Samiti Ltd. v. State of U.P. 2007 (1) AWC 327,  

Jasraj Singh v. State of U.P. 2008 (8) ADJ 329 and Jagriti Sahkari Avas  

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Samiti Ltd. Ghaziabad v. State of U.P. 2008 (9) ADJ 43 and held that the  

decision of the Government to invoke Section 17(1) cannot be subjected to  

judicial  review. The High Court also rejected the appellants’ plea that in  

terms of the policy framed by the State Government, the land covered by  

abadi cannot be acquired by observing that no material has been placed on  

record  to  show that  the  policy framed in  1991 was still  continuing.   To  

buttress this conclusion,  the High Court relied upon the judgment of this  

Court in Anand Buttons Limited v. State of Haryana (2005) 9 SCC 164.

9. By an order dated 29.10.2010, this Court, after taking cognizance of  

the fact that the respondents did not get opportunity to file reply to the writ  

petition, directed them to do so. Thereupon, Shri Harnam Singh, Additional  

District  Magistrate  (Land  Acquisition)/Officer  on  Special  Duty  (Land  

Acquisition) NOIDA, District Gautam Budh Nagar filed counter affidavit on  

behalf  of  respondent  Nos.1  to  3.   In  paragraph  10 of  his  affidavit,  Shri  

Harnam Singh has attempted to justify invoking of the urgency clause by  

making the following assertions:

“That  in  invoking  the  urgency  clause  the  State  Government has taken into consideration the following  factors:-

i) Greater  Noida  Industrial  Development  Authority  was  constituted  under  the  U.P.  Industrial  Area  Development Act, 1976 to promote Industrial and Urban  Development  in  the  Area.   The  acquired  land  was  

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urgently  required  by  the  Development  Authority  for  planned Industrial Development of the area.

ii) That the land in the adjoining villages were already  acquired  by  the  Greater  Noida  Industrial  Development  Authority.  Thus, the acquired land was urgently required  for  continuity  of  infrastructure  services  and  planned  Industrial  Development  of  the  Area.   If,  the  proposed  land  was  not  acquired  immediately  and  delay  in  this  regard would lead to encroachments and would adversely  affect the Planned Industrial Development of the Area.

iii) That  the  acquired  land  was  required  for  overall  development  i.e.  construction  of  roads,  laying  of  sewerages, providing electricity etc. in the area and the  said  scheme  has  been  duly  approved  by  the  state  government.

iv) That  the  acquired  land  consists  of  246  plots  numbers with 392 recorded tenure holders.  If objections  are  to  be  invited  and  hearing  be  given  to  such  large  number  of  tenure  holders,  it  would  take  long  time  to  dispose of the objections thereof and would hamper the  planned development of the area.

v) That reputed industrial houses who are interested  in investing in the State and in case the land is not  readily available, they might move to other states  and  such  a  move  would  adversely  affect  the  employment opportunities in the State.”   

Shri  Harnam  Singh  also  controverted  the  appellants’  plea  for  

exemption by stating that the constructions made by them on land of Khasra  

Nos.101 and 399 were insignificant and the construction raised on Khasra  

No.394 is not part of village Abadi.

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10. Shri  Manoj  Kumar  Singh,  Tehsildar  filed  a  separate  affidavit  on  

behalf of Respondent No.4 and justified the invoking of urgency clause by  

asserting that large tracts of land were acquired for industrial development  

of the district.  According to him, as per the policy of industrial development  

of  the State  Government,  the land is  required to be allotted to industrial  

houses.

11. On 8.11.2010,  Shri Dinesh Dwivedi learned senior counsel for the  

State made a request for permission to file additional affidavit with some  

documents. His request was accepted.  Thereafter, the respondents filed an  

affidavit  of  Shri  Sushil  Kumar  Chaubey,  Tehsildar,  Land  Acquisition,  

Gautam Budh Nagar along with eight documents of which seven have been  

collectively marked as Annexure A-1.   The first of the documents marked  

Annexure A-1 is copy of letter dated 25.2.2008 sent by the Commissioner  

and Director, Directorate of Land Acquisition, Revenue Board, U.P. to the  

Special  Secretary,  Industrial  Development  on  the  subject  of  issuance  of  

notification  under  Sections  4  and 17 of  the  Act  for  acquisition  of  lands  

measuring 205.0288 hectares of village Makora.  The second document is an  

undated letter  signed by Deputy Chief  Executive Officer,  Greater  Noida,  

Collector, Gautam Budh Nagar and four other officers/officials.  The next  

document has been  described as comments/certificate on the issues raised in  

Government Order No.5261/77-4-06-251N/06 dated 21.12.2006 with regard  

to proposal for acquisition of 205.0288 hectares lands in village Makora.  

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This  document  is  accompanied  by  seven  forms  containing  various  

particulars.  The third document is communication dated 29.10.2007 sent by  

the  Commissioner,  Meerut  Division,  Meerut  to  the  District  Magistrate,  

Gautam Budh Nagar conveying the consent of the Divisional Land Utility  

Committee for the acquisition of  lands of five villages including Makora.  

This letter is accompanied by minutes of the meeting of the Divisional Land  

Utility Committee held on 29.10.2007.  The fifth document is form No.43A-

1.  The sixth document is communication dated 22.2.2008 sent by Collector,  

Land Acquisition/Special Land Acquisition Officer, Greater Noida.  The last  

document which forms part of Annexure A-1 is form No.16 showing the list  

of properties having constructions etc.  Annexure A-2 is copy of letter dated  

31.10.2008  sent  by  the  Director,  Directorate  of  Land  Acquisition  to  the  

Special Secretary, Industrial Development.

12. Shri  N.P.Singh,  learned  counsel  for  the  appellants  argued  that  the  

impugned order is liable to be set aside because the High Court failed to  

consider  the  issues  raised  in  the  writ  petition  in  a  correct  perspective.  

Learned counsel submitted that the appellants had specifically pleaded that  

there was no valid ground to invoke the urgency clause contained in Section  

17(1) and to dispense with the application of Section 5-A but the High Court  

did not even call upon the respondents to file counter affidavit and brushed  

aside  the  challenge  to  the  acquisition  proceeding  on  a  wholly  untenable  

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premise that the affidavit filed in support of the writ petition was laconic.  

Learned counsel further argued that the purpose for which land was acquired  

i.e. planned industrial development of the district did not justify invoking of  

the urgency provisions and denial of opportunity to the appellants and other  

land owners to file objections under Section 5-A (1) and to be heard by the  

Collector  in  terms  of  the  mandate  of  Section  5-A (2).  In  support  of  his  

argument, learned counsel relied upon the judgments in  Narayan Govind  

Gavate v. State of Maharashtra (1977) 1 SCC 133 and Esso Fabs Private  

Limited v. State of Haryana (2009) 2 SCC 377. Another argument of the  

learned  counsel  is  that  the  High  Court  misdirected  itself  in  summarily  

dismissing the writ petition ignoring the substantive plea of discrimination  

raised by the appellants.  

13. Shri  Dinesh  Dwivedi,  learned  senior  counsel  appearing  for  the  

respondents urged that this Court should  not nullify the acquisition at the  

instance of the appellants because the pleadings filed before the High Court  

were not supported by proper affidavit. Shri Dwivedi argued that the High  

Court  was  justified  in  non-suiting  the  appellants  because  they  did  not  

produce  any  evidence  to  effectively  challenge  the  invoking  of  urgency  

provision contained in Section 17(1).  Learned senior counsel  emphasized  

that the satisfaction envisaged in Section 17(1) is purely subjective and the  

Court cannot review the decision taken by the State Government to invoke  

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the  urgency  clause.  He submitted  that  planned industrial  development  of  

District  Gautam Budh Nagar is  being undertaken in consonance with the  

policy decision taken by the State Government and the appellants cannot be  

heard to make a grievance against the acquisition of their land because they  

will be duly compensated. In support of his argument, Shri Dwivedi relied  

upon the judgment of this Court in State of U.P. v. Pista Devi (1986) 4 SCC  

251 and Chameli Singh v. State of U.P. (1996) 2 SCC 549.  Learned senior  

counsel further submitted that the appellants’ land cannot be released from  

acquisition because that will  result in frustrating the objective of planned  

industrial development of the district. On the issue of discrimination, Shri  

Dwivedi argued that even if the land belonging to some persons has been  

illegally  left  out  from  acquisition,  the  appellants  are  not  entitled  to  a  

direction that their land should also be released.

14. The first issue which needs to be addressed is whether the High Court  

was justified in non-suiting the appellants on the ground that they had not  

raised a specific plea supported by a proper affidavit to question the decision  

taken by the State Government to invoke Section 17(1) and 17(4) of the Act.  

We shall also consider an ancillary issue  as to whether the appellants had  

succeeded  in prima facie proving  that there was no justification to invoke  

the urgency clause and to dispense with the inquiry envisaged under Section  

5-A.

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15.     At the outset,  we record our disapproval of the casual manner in  

which the High Court disposed of the writ petition without even calling upon  

the respondents to file counter affidavit and produce the relevant records. A  

reading of the averments contained in paragraphs 11 and 16 and grounds A  

and F of the writ petition, which have been extracted hereinabove  coupled  

with the appellants’ assertion that the acquisition of their land was vitiated  

due to discrimination inasmuch as  land belonging to influential persons had  

been left out from acquisition, but their land was acquired in total disregard  

of the policy of the State Government to leave out  land on which dwelling  

units had already been constructed, show that they had succeeded in making  

out  a strong case for  deeper examination of the issues raised in the writ  

petition  and the High Court  committed serious error by summarily non-

suiting them.  

16. The history of land acquisition legislations shows that in Eighteenth  

Century, Bengal Regulation I of 1824, Act I of 1850, Act VI of 1857, Act  

XXII of 1863, Act X of 1870, Bombay Act No. XXVIII of 1839, Bombay  

Act No. XVII of 1850, Madras Act No. XX of 1852 and Madras Act No.1 of  

1854 were enacted to facilitate the acquisition of land and other immovable  

properties for roads, canals, and other public purposes by paying the amount  

to be determined by the arbitrators.  In 1870, the Land Acquisition Act was  

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enacted  to  provide  for  proper  valuation  of  the  acquired  land.   That  Act  

envisaged that if the person having interest in  land is not agreeable to part  

with possession by accepting the amount offered to him, then the Collector  

may  make  a  reference  to  the  Civil  Court.  The  1870  Act  also  envisaged  

appointment of  assessors  to assist  the  Civil  Court.   If  the  Court  and the  

assessor did not agree on the amount then an appeal could be filed in the  

High Court.  This mechanism proved ineffective because lot of time was  

consumed  in  litigation.   With  a  view  to  overcome  this  problem,  the  

legislature  enacted  the  Act  on  the  line  of  the  English  Lands  Clauses  

Consolidation  Act,  1845.   However,  the  land  owners  or  persons  having  

interest in land did not have any say in the acquisition process either under  

pre-1984  legislations  or  the  1984  Act  (un-amended).  They  could  raise  

objection  only  qua  the  amount  of  compensation  and  matters  connected  

therewith.   The  absence  of  opportunity  to  raise  objection  against  the  

acquisition of land was resented by those who were deprived of their land.  

To redress this grievance, Section 5A was inserted in the Act by amending  

Act No.38 of 1923.  The statement of Objects and Reasons contained in Bill  

No.29 of 1923, which led to enactment of the amending Act read as under:

“The Land Acquisition Act I of 1894 does not provide  that  persons  having  an  interest  in  land  which  it  is  proposed to acquire, shall have the right of objecting to  such  acquisition;  nor  is  Government  bound  to  enquire  into  and consider  any objections  that  may reach them.  The  object  of  this  Bill  is  to  provide  that  a  Local  Government shall not declare, under Section 6 of the Act,  

15

that any land is needed for a public purpose unless time  has been allowed after the notification under Section 4  for persons interested in the land to put in objections and  for  such  objections  to  be  considered  by  the  Local  Government.”    

17. The Act,  which was enacted more than 116 years ago for  

facilitating the acquisition of land and other immovable  properties  for  

construction of roads, canals, railways etc., has been frequently used in  

the  post  independence era  for  different  public  purposes  like  laying of  

roads,   construction of  bridges,  dams and buildings  of  various  public  

establishments/institutions,  planned  development  of  urban  areas,  

providing  of  houses  to  different  sections  of  the  society  and  for  

developing residential colonies/sectors.  However, in the recent years, the  

country has witnessed a new phenomena.  Large tracts of land have been  

acquired in  rural parts of the country in the name of development and  

transferred  to  private  entrepreneurs,  who  have  utilized  the  same  for  

construction  of  multi-storied  complexes,  commercial  centers  and  for  

setting up industrial units.  Similarly, large scale acquisitions have been  

made on behalf of the companies by invoking the provisions contained in  

Part VII of the Act.  

18.       The resultant effect of these acquisitions is that the land owners,  

who were doing agricultural operations and other ancillary activities in  

rural  areas,  have been deprived of the only source of their  livelihood.  

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Majority of them do not have any idea about their constitutional and legal  

rights,  which  can  be  enforced  by  availing  the  constitutional  remedies  

under  Articles  32  and  226  of  the  Constitution.   They  reconcile  with  

deprivation of land by accepting the amount of compensation offered by  

the  Government  and  by  thinking  that  it  is  their  fate  and  destiny  

determined by God.  Even those who get  semblance  of education are  

neither conversant with the functioning of the State apparatus nor they  

can access the records prepared by the concerned authorities as a prelude  

to the acquisition of  land by invoking Section 4 with or without the aid  

of  Section 17(1)  and/or  17(4).    Therefore,  while  examining the  land  

owner’s  challenge  to  the  acquisition  of  land  in  a  petition  filed  under  

Article  226  of  the  Constitution,   the  High  Court  should  not  adopt  a  

pedantic approach, as has been done in the present case, and decide the  

matter keeping in view the constitutional goals of social and economic  

justice and the fact that even though the right to property is no longer a  

fundamental right, the same continues to be an important constitutional  

right and in terms of Article 300-A, no person can be deprived of his  

property except by authority of law.  In cases where the acquisition is  

made by invoking Section 4 read with Section 17(1) and/or 17(4), the  

High Court should insist upon filing of reply affidavit by the respondents  

and production of the relevant records and carefully scrutinize the same  

before  pronouncing  upon  legality  of  the  impugned  notification/action  

17

because a negative result without examining the relevant records to find  

out whether the competent authority had formed a bona fide opinion on  

the issue of invoking the urgency provision and excluding the application  

of Section 5-A is likely to make the land owner a landless poor and force  

him to migrate to the nearby city only to live in a slum.  A departure from  

this  rule  should  be  made  only  when  land  is  required  to  meet  really  

emergent  situations  like  those  enumerated  in  Section  17(2).   If  the  

acquisition  is  intended  to  benefit  private  person(s)  and the  provisions  

contained in Section 17(1) and/or 17(4) are invoked, then scrutiny of the  

justification put forward by the State should be more rigorous in cases  

involving the challenge to the acquisition of land, the pleadings should be  

liberally construed and relief should not be denied to the petitioner by  

applying the technical rules of procedure embodied in the Code of Civil  

Procedure and other procedural laws. In this context it will be profitable  

to notice the observations made by this  Court in  Authorised Officer,  

Thanjavur v. S Naganatha Ayyar  (1979) 3 SCC 466, which are  as  

under:

“……It is true that Judges are constitutional invigilators  and statutory  interpreters;  but  they  are  also  responsive  and responsible to Part IV of the Constitution being one  of the trinity of the nation’s appointed instrumentalities  in the transformation of the socio-economic order.  The  judiciary, in its sphere, shares the revolutionary purpose  of  the  constitutional  order,  and  when  called  upon  to  decode  social  legislation  must  be  animated  by  a  goal- oriented  approach.  This  is  part  of  the  dynamics  of  

18

statutory  interpretation  in  the  developing  countries  so  that courts are not converted into rescue shelters for those  who seek to defeat agrarian justice by cute transactions  of many manifestations now so familiar  in the country  and illustrated  by the  several  cases  under  appeal.  This  caveat has become necessary because the judiciary is not  a mere umpire, as some assume, but an activist catalyst in  the constitutional scheme.”

19. We may now advert to the ancillary question whether the High Court  

was justified in non suiting the appellants on the ground that they failed to  

discharge  the  primary burden  of  proving  that  the  State  Government  had  

invoked Section 17(1) and 17(4) without application of mind to the relevant  

considerations.  In this context, it is apposite to observe that while dealing  

with challenge to the acquisition  of land belonging to those who suffer from  

handicaps of poverty, illiteracy and ignorance and do not have the resources  

to access the material relied upon by the functionaries of the  State and its  

agencies for forming an opinion or recording a satisfaction that the urgency  

provisions  contained  in  Section  17(1)  should  be  resorted  to  and/or  the  

enquiry envisaged under Section 5A should  be dispensed with, the High  

Court  should  not  literally  apply  the  abstract  rules  of  burden  of  proof  

enshrined in the Evidence Act.  It  is too much to expect from the rustic  

villagers, who are not conversant with the intricacies of law and functioning  

of the judicial system in our country to first obtain relevant information and  

records  from  the  concerned  State  authorities  and  then  present  skillfully  

drafted petition for enforcement of his legal and/or constitutional rights. The  

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Court should also bear in mind that the relevant records are always in the  

exclusive  possession/domain  of  the  authorities  of  the  State  and/or  its  

agencies.   Therefore,  an  assertion  by  the  appellants  that  there  was  no  

urgency in the acquisition of land; that the concerned authorities did not  

apply mind to the relevant factors and records and arbitrarily invoked the  

urgency provisions  and thereby  denied him the minimum opportunity  of  

hearing in terms of Section 5-A(1) and (2), should be treated as sufficient  

for  calling  upon  the  respondents  to  file  their  response  and  produce  the  

relevant records to justify the invoking of urgency provisions.

20. In  Narayan Govind Gavate v. State of Maharashtra  (supra), the  

three-Judge Bench of this Court examined the correctness of the judgment  

of the Bombay High Court  whereby the acquisition of land by the State  

Government by issuing notification under Section 4 read with Section 17(1)  

and 17(4) for development and utilisation as residential and industrial area  

was quashed.  The High Court held that the purpose of acquisition was a  

genuine public purpose but quashed the notifications by observing that the  

burden  of  proving  the  existence  of  circumstances  which  could  justify  

invoking  of  urgency  clause  was  on  the  State,  which  it  had  failed  to  

discharge. Some of the observations made by the High Court, which have  

been extracted in paragraphs 11 and 12 of the judgment of this Court, are  

reproduced below.

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“When the formation of an opinion or the satisfaction of  an authority is subjective but is a condition precedent to  the exercise of a power, the challenge to the formation of  such opinion or to such satisfaction is limited, in law, to  three  points  only.  It  can  be  challenged,  firstly,  on  the  ground of mala fides; secondly, on the ground that the  authority which formed that opinion or which arrived at  such satisfaction did not apply its mind to the material on  which it formed the opinion or arrived at the satisfaction,  and,  thirdly,  that  the  material  on  which  it  formed  its  opinion  or  reached  the  satisfaction  was  so  insufficient  that no man could reasonably reach that conclusion. So  far as the third point is concerned, no court of law can, as  in an appeal, consider that, on the material placed before  the authority, the authority was justified in reaching its  conclusion.  The  court  can  interfere  only  in  such cases  where there was no material at all or the material was so  insufficient that no man could have reasonably reached  that conclusion.  In  the  case  before  us  the  petitioner  has  stated  in  the  petition more than once that the urgency clause had been  applied without any valid reason. The urgency clause in  respect of each of the said two notifications concerning  the lands in Groups 1 and 2 is contained in the relative  Section 4 notification itself. The public purpose stated in  the notification is ‘for development and utilization of the  said lands as an industrial and residential area’. To start  with, this statement itself is vague, in the sense that it is  not clear whether the development and utilization of the  lands referred to in that  statement was confined to the  lands mentioned in the schedule to the notification or it  applied to a wider area of which such lands formed only  a part.  So far as the affidavit in reply is concerned, no  facts whatever are stated. The affidavit  only states that  the  authority  i.e.  the  Commissioner  of  the  Bombay  Division  was  satisfied  that  the  possession  of  the  said  lands was urgently required for the purpose of carrying  out  the  said development.  Even Mr Setalvad conceded  that the affidavit does not contain a statement of facts on  which the authority was satisfied or on which it formed  its  opinion.  It  is,  therefore,  quite  clear  that  the  respondents have failed to bring on record any material  

21

whatever on which the respondents formed the opinion  mentioned  in  the  two  notifications.  The  notifications  themselves show that they concern many lands other than  those falling in the said first and third groups. It is not  possible to know what was the development for which  the lands were being acquired, much less is it possible to  know  what  were  the  circumstances  which  caused  urgency in the taking of possession of such lands.  We  have held that the burden of proving such circumstances,  at  least  prima  facie  is  on  the  respondents.  As  the  respondents  have  brought  no  relevant  material  on  the  record,  the  respondents  have  failed  to  discharge  that  burden.  We must,  in conclusion,  hold that  the urgency  provision under Section 17(4)  was not  validly resorted  to.”

        (emphasis supplied)

While  dealing  with  the  argument  of  the  State  that  it  was  for  the  

petitioner  to  prove  that  there  was  no  material  to  justify  invoking  of  the  

urgency clause, this Court observed:

“We do not think that a question relating to burden of proof is  always free from difficulty or is quite so simple as it is sought  to  be  made  out  here.  Indeed,  the  apparent  simplicity  of  a  question relating to presumptions and burdens of proof, which  have  to  be  always  viewed  together  is  often  deceptive.  Over  simplification of such questions leads to erroneous statements  and misapplications of the law.”

The Court then referred to the judgment in Woolmington v. Director  

Public Prosecutions, 1935 AC 462, extensively quoted from   Phipson on  

Evidence (11th Edn),  noticed Sections 101 to 106 of the Evidence Act and  

observed:

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“Coming back to the cases before us,  we find that the  High Court  had correctly  stated  the  grounds  on which  even a subjective opinion as to the existence of the need  to  take  action  under  Section  17(4)  of  the  Act  can  be  challenged on certain limited grounds. But, as soon as we  speak of a challenge we have to bear in mind the general  burdens  laid  down  by  Sections  101  and  102  of  the  Evidence Act. It is for the petitioner to substantiate the  grounds of his challenge. This means that the petitioner  has to either lead evidence or show that some evidence  has come from the side of the respondents to indicate that  his challenge to a notification or order is made good. If  he does not succeed in discharging that duty his petition  will fail. But, is that the position in the cases before us?  We  find  that,  although  the  High  Court  had  stated  the  question before it to be one which “narrows down to the  point as to the burden of proof” yet, it had analysed the  evidence  sufficiently  before  it  to  reach  the  conclusion  that the urgency provision under Section 17(4) had not  been validly resorted to.

… … …

… We think that the original or stable onus laid down by  Section 101 and Section 102 of the Evidence Act cannot  be shifted by the use of Section 106 of the Evidence Act,  although  the  particular  onus  of  providing  facts  and  circumstances lying especially within the knowledge of  the official who formed the opinion which resulted in the  notification under Section 17 (4) of the Act rests upon  that  official.  The  recital,  if  it  is  not  defective,  may  obviate  the  need  to  look  further.  But,  there  may  be  circumstances in the case which impel the court to look  beyond it. And, at that stage, Section 106 Evidence Act  can  be  invoked  by  the  party  assailing  an  order  or  notification.  It  is  most  unsafe  in  such  cases  for  the  official or authority concerned to rest content which non- disclosure of facts especially within his or its knowledge  by relying on the sufficiency of a recital. Such an attitude  may itself justify further judicial scrutiny.

… … … In  the  cases  before  us,  if  the  total  evidence  from  whichever side any of it may have come, was insufficient  

23

to  enable  the  petitioners  to  discharge  their  general  or  stable  onus,  their  petitions  could  not  succeed.  On  the  other hand, if, in addition to the bare assertions made by  the petitioners, that the urgency contemplated by Section  17(4)  did  not  exist,  there  were  other  facts  and  circumstances,  including  the  failure  of  the  State  to  indicate  facts  and  circumstances  which  it  could  have  easily disclosed if they existed, the petitioners could be  held to have discharged their general onus.

… … … It is also clear that, even a technically correct recital in an  order or notification stating that the conditions precedent  to the exercise of a power have been fulfilled may not  debar  the  court  in  a  given  case  from  considering  the  question  whether,  in  fact,  those  conditions  have  been  fulfilled.   And,  a  fortiori,  the  court  may  consider  and  decide whether  the authority  concerned has applied its  mind to  really  relevant  facts  of  a  case  with  a  view to  determining that a condition precedent to the exercise of  a  power  has  been  fulfilled.   If  it  appears,  upon  an  examination of the totality of facts in the case, that the  power conferred has been exercised for an extraneous or  irrelevant purpose or that the mind has not been applied  at all to the real object or purpose of a power, so that the  result is that the exercise of power could only serve some  other or collateral object, the court will interfere.”

The Court finally held as under:

“………………There is no indication whatsoever in the  affidavit  filed  on  behalf  of  the  State  the  mind  of  the  Commissioner was applied at all to the question whether  it was a case necessitating the elimination of the enquiry  under  Section5A  of  the  Act.  The  recitals  in  the  notifications, on the other hand, indicate that elimination  of the enquiry under Section 5A of the Act was treated as  an automatic consequence of the opinion formed on other  matters. The recital does not say at all that any opinion  was  formed on  the  need  to  dispense  with  the  enquiry  under  Section  5A of  the  Act.  It  is  certainly  a  case  in  

24

which  the  recital  was  at  least  defective.  The  burden,  therefore, rested upon the State to remove the defect, if  possible,  by  evidence  to  show  that  some  exceptional  circumstances which necessitated the elimination of an  enquiry under Section 5A of the Act and that the mind of  the Commissioner was applied to this essential question.  It seems to us that the High Court correctly  applied the  provisions of Section 106 of the Evidence Act to place  the  burden  upon  the  State   to  prove  those  special  circumstances,  although  it  also  appears  to  us  that  the  High Court was quite correct in stating its view in such a  manner as to make it appear that some part of the initial  burden of the petitioners  under Sections 101 and 102 of  the Evidence Act had been displaced by the failure of the  State to discharge  its duty under Section 106 of the Act.  The correct way of putting it would have been to say that  the failure of the State to produce the evidence of facts  especially  within  the  knowledge  of  its  officials,  which  rested upon it  under Section 106 of  the Evidence Act,  taken together with the attendant facts and circumstances  including  the  contents  of  recitals,  had  enabled  the  petitioners to discharge  their burden under Sections 101  and 102 of the Evidence Act.”

       (emphasis supplied)

21. The ratio of the aforesaid judgment was recently followed by the two-

Judge Bench in  Anand Singh v. State of Uttar Pradesh  (2010) 11 SCC  

242.

22. We  shall  now  consider  whether  there  was  any  valid  ground  or  

justification for invoking the urgency provision contained in Section 17(1)  

and to exclude the application of Section 5A for the acquisition of land for  

25

planned  industrial  development  of  the  district.  Sections  4,  5-A  (as  

amended), 6 and 17 of the Act which have bearing on this question read as  

under:

“4. Publication of preliminary notification and power  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 the publication of the notification).  

(2)  Thereupon it  shall  be lawful for any officer,  either  generally or specially authorized 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;  to dig or bore into 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;

26

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.  

5A. Hearing of objections. - (1) Any person interested  in any land which has been notified under section 4, sub- section (1), as being needed or likely to be needed for a  public purpose or for a company may, within thirty days  from the date of the publication of the notification, object  to  the  acquisition  of  the  land  or  of  any  land  in  the  locality, as the case may be.  

(2) Every objection under sub-section (1) shall be made  to the Collector in writing, and the Collector shall give  the objector an opportunity of being heard in person or  by  any  person  authorized  by  him in  this  behalf  or  by  pleader and shall,  after hearing all  such objections and  after  making  such further  inquiry,  if  any,  as  he thinks  necessary,  either  make  a  report  in  respect  of  the  land  which has been notified under section 4, sub-section (1),  or make different reports in respect of different parcels of  such land, to the appropriate Government, containing his  recommendations  on  the  objections,  together  with  the  record of the proceedings held by him, for the decision of  that  Government.  The  decision  of  the  appropriate  Government on the objections shall be final.  

(3)  For  the  purpose  of  this  section,  a  person  shall  be  deemed to be interested in land who would be entitled to  claim  an  interest  in  compensation  if  the  land  were  acquired under this Act.  

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 authorized to  

27

certify its orders, and 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 5A, sub-section (2):  

Provided that no declaration in respect of any particular  land  covered  by  a  notification  under  section  4,  sub- section (1), -  

(i) xx xx xx xx (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 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  the publication of the declaration), and such declaration  

28

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.  

17. Special powers in case of urgency. – (1) In cases of  urgency  whenever  the  appropriate  Government,  so  directs,  the  Collector,  though no such  award  has  been  made,  may,  on the  expiration  of  fifteen days  from the  publication  of  the  notice  mentioned  in  section  9,  sub- section  (1)  take  possession  of  any  land  needed  for  a  public purpose. Such land shall thereupon vest absolutely  in the Government, free from all encumbrances.

(2)  Whenever,  owing  to  any  sudden  change  in  the  channel  of  any  navigable  river  or  other  unforeseen  emergency,  it  becomes  necessary  for  any  Railway  Administration  to  acquire  the  immediate  possession  of  any land for the maintenance of their traffic or for the  purpose of making thereon a river-side or ghat station, or  of providing convenient connection with or access to any  such station, or the appropriate Government considers it  necessary  to  acquire  the  immediate  possession  of  any  land  for  the  purpose  of  maintaining  any  structure  or  system pertaining  to  irrigation,  water  supply,  drainage,  road  communication  or  electricity,  the  Collector  may,  immediately after the publication of the notice mentioned  in sub-section (1) and with the previous sanction of the  appropriate Government, enter upon and take possession  of such land, which shall thereupon vest absolutely in the  Government free from all encumbrances:

Provided that the Collector shall not take possession of  any building or part of a building under this sub-section  without giving to the occupier thereof at least forty-eight  

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hours’  notice  of  his  intention so to  do,  or  such longer  notice  as  may  be  reasonably  sufficient  to  enable  such  occupier  to  remove  his  movable  property  from  such  building  without  unnecessary  inconvenience.   

(3)  In  every  case  under  either  of  the  preceding  sub- sections  the  Collector  shall  at  that  time  of  taking  possession offer to the persons interested compensation  for the standing crops and trees (if any) on such land and  from any other damage sustained by them caused by such  sudden  dispossession  and  not  excepted  in  section  24;  and, in case such offer is not accepted, the value of such  crops  and trees  and the  amount  of  such other  damage  shall  be allowed for in awarding compensation for  the  land under the provisions herein contained.  

(3A)  Before  taking  possession  of  any  land  under  sub- section (1) or sub-section (2), the Collector shall, without  prejudice to the provisions of sub-section (3)-

(a) tender  payment  of  eighty  per  centum  of  the  compensation for such land as estimated by him to the  persons interested entitled thereto, and  

(b) pay it to them, unless prevented by some one or  more of the contingencies mentioned in section 31, sub- section (2),  

and where the Collector is so prevented, the provisions of  section 31,  sub-section (2),  (except  the  second proviso  thereto),  shall  apply  as  they  apply  to  the  payment  of  compensation under that section.  

(3B)  The  amount  paid  or  deposited  under  sub-section  (3A),  shall  be  taken  into  account  for  determining  the  amount of compensation required to be tendered under  section 31, and where the amount so paid or deposited  exceeds  the  compensation  awarded  by  the  Collector  under section 11, the excess may, unless refunded within  three  months  from  the  date  of  Collector's  award,  be  recovered as an arrear of land revenue.  

(4) In the case of any land to which, in the opinion of the  

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appropriate  Government,  the  provisions  of  sub-section  (1)  or  sub-section  (2)  are  applicable,  the  appropriate  Government may direct that the provisions of section 5A  shall not apply, and, if it does so direct, a declaration may  be made under section 6 in respect of the land at any time  after the date of the publication of the notification under  section 4, sub-section (1).

Section  17  has  been  amended  five  times  by  the  Uttar  Pradesh  

legislature.  However, the only amendment which is relevant for deciding  

this case is the insertion of proviso to Section 17(4) vide Uttar Pradesh Act  

No.8 of 1974.  That proviso reads as under:

“Provided that where in the case of any land, notification  under section 4, sub-section (1) has been published in the  Official  Gazette  on  or  after  September  24,  1984  but  before  January  11,  1989,  and  the  appropriate  Government has under this sub-section directed that the  provisions of  section 5A shall  not  apply,  a declaration  under section 6 in respect of the land may be made either  simultaneously with, or at any time after, the publication  in the Official Gazette of the notification under section 4,  sub-section (1).”

23. ANALYSIS OF THE PROVISIONS:

Section 4(1) lays down that 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, then a notification to that effect is  

required to be published in the Official Gazette and two daily newspapers  

having  circulation  in  the  locality.   Of  these,  one  paper  has  to  be  in  the  

regional language.  A duty is also cast on the Collector, as defined in Section  

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3(c), to cause public notice of the substance of such notification to be given  

at convenient places in the locality.  The last date of publication and giving  

of  public  notice  is  treated  as  the  date  of  publication  of  the  notification.  

Section  4(2)  lays  down  that  after  publication  of  the  notification  under  

Section 4(1), any officer authorised by the Government in this behalf, his  

servants or workmen can enter upon and survey and take levels of any land  

in the locality or to dig or bore into the sub-soil and to do all  other acts  

necessary for ascertaining that land is suitable for the purpose of acquisition.  

The concerned officer, his servants or workmen can fix the boundaries of  

land  proposed  to  be  acquired and the intended  line  of  the  work,  if  any,  

proposed to be made on it.  They can also mark such levels and boundaries  

by  marks  and  cutting  trenches  and  cut  down and  clear  any  part  of  any  

standing crops, fence or jungle for the purpose of completing the survey and  

taking level, marking of boundaries and line.  However, neither the officer  

nor his servants or workmen can, without the consent of the occupier, enter  

into  any  building  or  upon  any  enclosed  court  or  garden  attached  to  a  

dwelling house without giving seven days' notice to the occupier.   Section  

5A, which embodies the most important dimension of the rules of natural  

justice,  lays  down  that  any  person  interested  in  any  land  notified  under  

Section 4(1) may, within 30 days of publication of the notification, submit  

objection in writing against the proposed acquisition of land or of any land  

in the locality to the Collector.  The Collector is required to give the objector  

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an opportunity of being heard either in person or by any person authorized  

by him or by pleader.  After hearing the objector (s) and making such further  

inquiry, as he may think necessary, the Collector has to make a report in  

respect of land notified under Section 4(1) with his recommendations on the  

objections and forward the same to the Government along with the record of  

the proceedings held by him.  The Collector can make different reports in  

respect of different parcels of land proposed to be acquired.  Upon receipt of  

the Collector’s report, the appropriate Government is required to take action  

under Section 6(1) which lays down that after considering the report, if any,  

made under Section 5-A (2),  the appropriate Government is satisfied that  

any particular land is needed for a public purpose, then a declaration to that  

effect  is  required  to  be  made  under  the  signatures  of  a  Secretary  to  the  

Government or of some officer duly authorised to certify its orders.  This  

section also envisages making of different declarations from time to time in  

respect of different parcels of land covered by the same notification issued  

under Section 5(1).  In terms of clause (ii) of proviso to Section 6(1), no  

declaration in respect of any particular land covered by a notification issued  

under Section 4(1), which is published after 24.9.1989 can be made after  

expiry of one year from the date of publication of the notification.  To put it  

differently, a declaration is required to be made under Section 6(1) within  

one year from the date of publication of the notification under Section 4(1).  

In  terms  of  Section  6(2),  every  declaration  made  under  Section  6(1)  is  

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required to be published in the official gazette and in two daily newspapers  

having circulation in the locality in which land proposed to be acquired is  

situated.   Of  these,  at  least  one  must  be  in  the  regional  language.   The  

Collector is also required to cause public notice of the substance of such  

declaration to be given at convenient places in the locality.  The declaration  

to  be  published  under  Section  6(2)  must  contain  the  district  or  other  

territorial  division  in  which  land  is  situate,  the  purpose  for  which  it  is  

needed, its approximate area or a plan is made in respect of land and the  

place where such plan can be inspected.  Section 6 (3) lays down that the  

declaration made under Section 6(1) shall be conclusive evidence of the fact  

that land is needed for a public purpose. After publication of the declaration  

under  Section  6,  the  Collector  is  required  to  take  order  from  the  State  

Government for the acquisition of land to be carved out and measured and  

planned (Sections 7 and 8). The next stage as envisaged is issue of public  

notice and individual notice to the persons interested in land to file their  

claim for compensation. Section 11 envisages holding of an enquiry into the  

claim and passing of an award by the Collector who is required to take into  

consideration the provisions contained in Section 23. Section 16 lays down  

that after making an award the Collector can take possession of land which  

shall thereafter vest in the Government. Section 17(1) postulates taking of  

possession of land without making an award.  If the appropriate Government  

decides that land proposed to be acquired is urgently needed for a public  

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purpose then it  can authorise  the competent authority  to take possession.  

Section 17(2) contemplates a different type of urgency in which, the State  

Government can authorise taking of possession even before expiry of 15  

days period specified in Section 9 (1).  Section 17(4) lays down that in cases  

where  appropriate  Government  comes  to  the  conclusion  that  there  is  

existence  of  an  urgency  or  unforeseen  emergency,  it  can  direct  that  

provisions of Section 5-A shall not apply.   

24. Before  adverting  to  the  precedents  in  which  Section  5A has  been  

interpreted by this Court, it will be useful to notice development of the law  

relating  to  the  rule  of  hearing.  In  the  celebrated  case  of  Cooper  v.  

Wandsworth Board of Works (1863) 143 ER 414, the principle was stated  

thus:

“Even God did not pass a sentence upon Adam, before he was  called upon to make his defence.  “Adam” says God, “where art  thou?  hast  thou not eaten of the tree whereof I  commanded  thee that thou shouldest not eat”.

Therein the District  Board had brought down the house of the plaintiff’s  

(Cooper),  because  he  had  failed  to  comply  with  The  Metropolis  Local  

Management Act.  The Act required the plaintiff to notify the board seven  

days before starting to build the house.  Cooper argued that even though the  

board had the legal authority to tear his house down, no person should be  

deprived of their property without notice.  In spite of no express words in the  

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statute the court recognized the right of hearing before the plaintiff’s house  

built without permission was demolished in the exercise of statutory powers.  

Byles J stated:

‘Although there are not positive words in a statute  requiring  that  the  party  shall  be  heard,  yet  the  justice  of  the  common  law  shall  supply  the  omission of the legislature’.

25. Perhaps the best known statement on the right to be heard has come  

from Lord Loreburn, L.C. in Board of Education v. Rice (1911 AC 179 at  

182), where he observed:  

“Comparatively  recent  statutes  have  extended,  if  they  have  originated, the practice of imposing upon departments or offices  of  State  the  duty  of  deciding  or  determining  questions  of  various kinds…In such cases… they must act in good faith and  fairly listen to both sides, for that is a duty lying upon everyone  who decides anything.  But I do not think they are bound to  treat such questions as though it were a trial …they can obtain  information in any way they think best,  always giving a fair  opportunity  to  those  who  are  parties  in  the  controversy  for  correcting or contradicting any relevant statement prejudicial in  their view.”  

26. In  Ridge  v.  Baldwin 1964  AC  40  Lord  Reid  emphasized  on  the  

universality of the right to a fair hearing whether it concerns the property or  

tenure  of  an  office  or  membership  of  an  institution.   In  O’Reilly  v.  

Mackman 1983 2 AC 237, Lord Diplock said that the right of a man to be  

given  a  fair  opportunity  of  hearing,  what  is  alleged  against  him and  of  

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presenting his own case is so fundamental to any civilized legal system that  

it is to be presumed that Parliament intended that failure to observe the same  

should  render  null  and  void  any  decision  reached  in  breach  of  this  

requirement.  In Lloyd v. Mcmahon 1987 AC 625 Lord Bridge said:

“My  Lords,  the  so-called  rules  of  natural  justice  are  not  engraved on tablets of stone.  To use the phrase which better  expresses  the  underlying  concept,  what  the  requirements  of  fairness  demand when any body,  domestic,  administrative  or  judicial, has to make a decision which will affect the rights of  individuals  depends  on  the  character  of  the  decision-making  body, the kind of decision it has to make and the statutory or  other framework in which it operates. In particular, it is well- established that when a statute has conferred on any body the  power to make decisions affecting individuals, the courts will  not only require the procedure prescribed by the statute to be  followed, but will readily imply so much and no more to be  introduced by way of additional procedural safeguards as will  ensure the attainment of fairness.”

27. In the United States, principles of natural justice usually find support  

from the Due Process clause of the Constitution.  The extent of due process  

protection required is determined by a number of factors; first the private  

interest that will be affected by the official  action; second, the risk of an  

erroneous deprivation of such interest through the procedures used, and the  

probable  value,  if  any,  of  additional  or  substitute  procedural  requirement  

would entail.   

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28. The amplitude, ambit and width of the rule of  audi alteram partem  

was lucidly stated by the three-Judge bench in Sayeedur Rehman v. State  

of Bihar (1973) 3 SCC 333 in the following words:

“11……….This  unwritten  right  of  hearing  is  fundamental  to  a  just  decision by  any authority  which  decides a controversial  issue affecting the rights of the  rival contestants. This right has its roots in the notion of  fair  procedure.  It  draws  the  attention  of  the  party  concerned to the imperative necessity of not overlooking  the other side of the case before coming to its decision,  for nothing is  more likely to conduce to just and right  decision  than  the  practice  of  giving  hearing  to  the  affected parties.”

29. In  Mohinder Singh Gill v. Chief Election Commissioner (1978) 1  

SCC 405, Krishna Iyer  J.  speaking for himself,  Beg CJ and Bhagwati  J.  

highlighted the importance of rule of hearing in the following words:

“43. Indeed, natural justice is a pervasive facet of secular  law  where  a  spiritual  touch  enlivens  legislation,  administration and adjudication, to make fairness a creed  of life. It has, many colours and shades, many forms and  shapes  and,  save  where  valid  law  excludes  it,  applies  when people are affected by acts of authority. It  is the  hone  of  healthy  government,  recognised  from  earliest  times  and  not  a  mystic  testament  of  Judge-made  law.  Indeed,  from  the  legendary  days  of  Adam  —  and  of  Kautilya’s  Arthasastra — the  rule  of  law has  had this  stamp of natural justice which makes it social justice. We  need not  go into these deeps for the present  except  to  indicate that the roots of natural justice and its foliage are  noble and not new-fangled. Today its application must be  sustained by current legislation, case-law or other extant  principle, not the hoary chords of legend and history. Our  

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jurisprudence has sanctioned its prevalence even like the  Anglo-American system.

….. ….. …..   

48. Once we understand the soul of the rule as fair play  in action — and it is so — we must hold that it extends to  both  the  fields.  After  all,  administrative  power  in  a  democratic set-up is not allergic to fairness in action and  discretionary  executive  justice  cannot  degenerate  into  unilateral injustice. Nor is there ground to be frightened  of  delay,  inconvenience  and expense,  if  natural  justice  gains access. For fairness itself is a flexible, pragmatic  and  relative  concept,  not  a  rigid,  ritualistic  or  sophisticated abstraction. It is not a bull in a china shop,  nor a bee in one’s bonnet. Its essence is good conscience  in a given situation: nothing more — but nothing less.  The  “exceptions”  to  the  rules  of  natural  justice  are  a  misnomer  or  rather  are  but  a  shorthand  form  of  expressing  the  idea  that  in  those  exclusionary  cases  nothing  unfair  can  be  inferred  by  not  affording  an  opportunity to present or meet a case. Text-book excerpts  and  ratios  from  rulings  can  be  heaped,  but  they  all  converge to the same point that  audi alteram partem is  the  justice  of  the  law,  without,  of  course,  making law  lifeless,  absurd,  stultifying,  self-defeating  or  plainly  contrary to the common sense of the situation.”

30. In Maneka Gandhi v. Union of India (1978) 1 SCC 248, Bhagwati  

J. speaking for himself and Untwalia and Fazal Ali JJ. observed:

“14. ………..The audi alteram partem rule is intended to inject  justice into the law and it cannot be applied to defeat the ends  of justice, or to make the law “lifeless, absurd, stultifying, self- defeating  or  plainly  contrary  to  the  common  sense  of  the  situation”. Since the life of the law is not logic but experience  and every legal proposition must,  in the ultimate analysis, be  tested on the touchstone of pragmatic realism, the audi alteram  partem rule  would,  by  the  experiential  test,  be  excluded,  if  importing the right to be heard has the effect of paralysing the  administrative  process  or  the  need  for  promptitude  or  the  

39

urgency of the situation so demands.  But at the same time it  must be remembered that this is a rule of vital importance in the  field of administrative law and it must not be jettisoned save in  very exceptional circumstances where compulsive necessity so  demands. It is a wholesome rule designed to secure the rule of  law and the court should not be too ready to eschew it in its  application to a given case. True it is that in questions of this  kind a fanatical or doctrinaire approach should be avoided, but  that  does  not  mean  that  merely  because  the  traditional  methodology of  a formalised  hearing may have the effect  of  stultifying the exercise of the statutory power, the audi alteram  partem should be wholly excluded. The court must make every  effort  to  salvage  this  cardinal  rule  to  the  maximum  extent  permissible  in  a  given  case.  It  must  not  be  forgotten  that  “natural  justice  is  pragmatically  flexible  and  is  amenable  to  capsulation under the compulsive pressure of circumstances”.  The   audi alteram partem   rule is not cast in a rigid mould and    judicial  decisions  establish  that  it  may  suffer  situational  modifications. The core of it must, however, remain, namely,  that the person affected must have a reasonable opportunity of  being heard and the hearing must be a genuine hearing and not  an empty public relations exercise.”

(emphasis supplied)

31. In Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664 the  

majority  of the three Judge Bench held that  rule of  audi alteram partem  

must be complied with even when the Government exercises power under  

Section  18AA of  the  Industries  (Development  &  Regulation)  Act,  1951  

which empowers the Central  Government to authorise  taking over of the  

management of industrial undertaking.  Sarkaria J. speaking for himself and  

Desai J. referred to the development of law relating to applicability of the  

rule of audi alteram partem to administrative actions, noticed the judgments  

in  Ridge v. Baldwin (supra),  A.K. Kraipak  vs. Union of India (1969) 2  

40

SCC  262,  Mohinder  Singh  Gill v.  Union  of  India  (supra),  Maneka  

Gandhi v. Union of India (supra) and State of Orissa v Dr. Bina Pani Dei  

1967 (2) SCR 625 and quashed the order passed by the Central Government  

for  taking  over  the  management  of  the  industrial  undertaking  of  the  

appellant on the ground that opportunity of hearing has not been given to the  

owner of the undertaking and remanded the matter for fresh consideration  

and compliance of the rule of audi alteram partem.

32. In  Munshi Singh v. Union of  India (1973) 2 SCC 337, the three  

Judge Bench of this Court emphasised the importance of Section 5A in the  

following words:

“7. …………Sub-section (2) of Section 5-A makes it obligatory  on the Collector  to give an objector  an opportunity  of being  heard. After hearing all objections and making further inquiry  he is to make a report to the appropriate Government containing  his  recommendation  on  the  objections.  The  decision  of  the  appropriate  Government  on  the  objections  is  then  final.  The  declaration under Section 6 has to be made after the appropriate  Government is satisfied, on a consideration of the report, if any,  made  by the  Collector  under  Section 5-A(2).  The legislature  has,  therefore,  made  complete  provisions  for  the  persons  interested to file objections against the proposed acquisition and  for the disposal of their objections. It is only in cases of urgency  that  special  powers  have  been  conferred  on  the  appropriate  Government to  dispense with  the  provisions  of  Section 5-A:  [See Section 17(4) of the Acquisition Act.]”

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33. In State of Punjab v. Gurdial Singh (1980) 2 SCC 471, Krishna Iyer  

J. emphasized the necessity of reasonableness and fairness in the State action  

of invoking the urgency provision in the following words:

“16……….it is fundamental that compulsory taking of a man’s  property is a serious matter and the smaller the man the more  serious the matter.  Hearing him before depriving him is both  reasonable and pre-emptive of arbitrariness, and denial of this  administrative  fairness  is  constitutional  anathema  except  for  good reasons. Save in real urgency where public interest does  not brook even the minimum time needed to give a hearing land  acquisition authorities should not, having regard to Articles 14  (and 19), burke an enquiry under Section 17 of the Act. Here a  slumbering process,  pending for  years  and suddenly  exciting  itself  into  immediate  forcible  taking,  makes  a  travesty  of  emergency power.”

34. In Shyam Nandan Prasad v. State of Bihar (1993) 4 SCC 255, this  

Court  reiterated  that  the  compliance  of  Section  5A  is  mandatory  and  

observed as under:

“10…………The decision of the Collector is supposedly final  unless the appropriate Government chooses to interfere therein  and cause affectation,  suo motu or on the application of any  person  interested  in  the  land.  These  requirements  obviously  lead to the positive conclusion that the proceeding before the  Collector  is  a  blend  of  public  and  individual  enquiry.  The  person interested, or known to be interested, in the land is to be  served personally of the notification, giving him the opportunity  of objecting to the acquisition and awakening him to such right.  That the objection is to be in writing, is indicative of the fact  that  the  enquiry  into  the  objection  is  to  focus  his  individual  cause as well as public cause. That at the time of the enquiry,  for which prior notice shall be essential,  the objector has the  right to appear in person or through pleader and substantiate his  objection by evidence and argument.”

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35. The ratio of  Munshi Singh v. Union of India  (supra) has  

been reiterated and followed in Union of India v. Mukesh Hans (2004)  

8  SCC  14,  Hindustan  Petroleum  Corporation  Limited  v.  Darius  

Shapur Chenai (2005) 7 SCC 627 and Anand Singh v. State of Uttar  

Pradesh (supra).  

36. The acquisition of land under Section 4 read with Section  

17(1) and/or 17(4) has generated substantial litigation in last 50 years.  

One of the earliest judgments on the subject is  Nandeshwar Prasad v.  

The  State  of  Uttar  Pradesh  (1964)  3  SCR  425.   In  that  case,  the  

acquisition  of  land  for  construction of  tenements  for  the  4th phase  of  

subsidized  industrial  housing  scheme  sponsored  by  the  State  

Government, as also for general improvement and street Scheme No.XX  

of Kanpur Development Board by issuing notification under Section 4  

read with Section 17(1), (1-A) and 17(4) was challenged.  The learned  

Single  Judge  and  the  Division  Bench  of  the  Allahabad  High  Court  

negatived the appellants’ challenge by observing that once Section 17 is  

invoked, there was no necessity to hold enquiry under Section 5A.  This  

Court set aside the order of the Division Bench of the High Court and  

held:  

“It  will  be  seen  that  Section  17(1)  gives  power  to  the  Government to direct the Collector, though no award has been  

43

made  under  Section11,  to  take  possession  of  any  waste  or  arable land needed for public purpose and such land thereupon  vests absolutely in the Government free from all encumbrances.  If action is taken under Section 17(1),  taking possession and  vesting which are provided in Section 16 after the award under  Section 11 are accelerated and can take place fifteen days after  the  publication  of  the  notice  under  Section  9.   Then  comes  Section 17(4) which provides that in case of any land to which  the  provisions  of  sub-section  (1)  are  applicable,  the  Government may direct that the provisions of Section 5-A shall  not apply and if it does so direct, a declaration may be made  under  Section 6  in  respect  of  the  land at  any time after  the  publication  of  the  notification  under  Section  4(1).  It  will  be  seen that it is not necessary even where the Government makes  a  direction  under  Section  17(1)  that  it  should  also  make  a  direction  under  Section  17(4).  If  the  Government  makes  a  direction only under Section 17(1) the procedure under Section  5-A would still have to be followed before a notification under  Section  6  is  issued,  though  after  that  procedure  has  been  followed  and  a  notification  under  Section  6  is  issued  the  Collector gets the power to take possession of the land after the  notice under Section 9 without waiting for the award and on  such  taking  possession  the  land  shall  vest  absolutely  in  Government free from all  encumbrances. It  is  only when the  Government also makes a declaration under Section 17 (4) that  it becomes unnecessary to take action under Section 5-A and  make a report thereunder.  It may be that generally where an  order is made under Section 17(1), an order under Section 17(4)  is also passed; but in law it is not necessary that this should be  so. It will also be seen that under the Land Acquisition Act an  order under Section 17(1) or Section 17(4) can only be passed  with respect  to waste or  arable land and it  cannot be passed  with respect to land which is not waste or arable and on which  buildings stand.”

(emphasis supplied)

37. In  Raja Anand Brahma Shah v. State of Uttar Pradesh  (1967) 1  

SCR 373, the Constitution Bench considered the  legality of the acquisition  

44

of 409.6 acres of land in village Markundi Ghurma, Pargana Agori for a  

public  purpose  i.e.  for  limestone  quarry.  The  State  Government  invoked  

Section 17(1) and 17(4), dispensed with requirement of hearing envisaged  

under  Section  5-A  and  directed  the  Collector  and  District  Magistrate,  

Mirzapur  to  take  the  possession  of  land.  The  Allahabad  High  Court  

dismissed the writ petition filed by the appellant by observing that the Court  

cannot  interfere  with  the  subjective  satisfaction  reached  by  the  State  

Government on the issue of urgency. This Court agreed with the High Court  

that the acquisition was for a public purpose but held that the expression of  

opinion by the State Government on the issue of invoking urgency provision  

can be challenged on the ground of non application of mind or mala fides.  

The  Court  relied  upon  the  judgments  in  King  Emperor  v.  Shibnath  

Banerjee,  Criminal  Appeal  No.110  of  1966  decided  on  July  27,  1966;  

Jaichand Lal Sethia v. State of West Bengal (1958) 1 WLR 546;  Estate  

and Trust Agencies Ltd. v. Singapore Improvement Trust  (1914) 1 Ch  

438;  Ross Clunis  v.  Papadopoullos  44 1A 117 and   R. v.  Australian  

Stevedoring Industry Board 39 1A 133 and observed:

“It is true that the opinion of the State Government which is a  condition for the exercise of the power under Section 17 (4) of  the  Act,  is  subjective  and  a  court  cannot  normally  enquire  whether  there  were  sufficient  grounds  or  justification  of  the  opinion formed by the State Government under Section 17(4).  The  legal  position  has  been  explained  by  the  Judicial  Committee in King Emperor v. Shibnath Banerjee and by this  Court in a recent case – Jaichand Lal Sethia v. State of West  Bengal.  But even though the power of the State Government  

45

has  been  formulated  under  Section  17(4)  of  the  Act  in  subjective  terms  the  expression  of  opinion  of  the  State  Government can be challenged as ultra vires in a court of law if  it could be shown that the State Government never applied it  mind to the matter or that the action of the State Government is  mala fide.  If therefore in a case the land under acquisition is  not actually waste or arable land but the State Government has  formed the  opinion  that  the  provisions  of  sub-section  (1)  of  Section 17 are applicable, the court may legitimately draw an  inference that the State Government did not honestly form that  opinion or that in forming that opinion the State Government  did  not  apply  its  mind  to  the  relevant  facts  bearing  on  the  question at issue. It follows therefore that the notification of the  State Government under Section 17 (4) of the Act directing that  the provisions of Section 5-A shall not apply to the land is ultra  vires.”            (emphasis supplied)

38. In  Narayan Govind Gavate v. State of Maharashtra  (supra), this  

Court  while  approving  the  judgment  of  the  Bombay  High  Court,  which  

quashed the acquisition made under Section 4 read with Section 17(1) and  

17(4) held as under:   

“38. Now, the purpose of Section 17(4) of the Act is, obviously,  not merely to confine action under it to waste and arable land  but also to situations in which an inquiry under Section 5-A will  serve  no  useful  purpose,  or,  for  some  overriding  reason,  it  should be dispensed with. The mind of the officer or authority  concerned has to be applied to the question whether there is an  urgency of such a nature that even the summary proceedings  under Section 5-A of the Act should be eliminated. It is not just  the existence of an urgency but the need to dispense with an  inquiry under Section 5-A which has to be considered.

40.  In the case before us, the public purpose indicated is the  development of an area for industrial and residential purposes.  This,  in  itself,  on  the  face  of  it,  does  not  call  for  any  such  

46

action,  barring  exceptional  circumstances,  as  to  make  immediate  possession,  without  holding  even  a  summary  enquiry under Section 5-A of the Act, imperative. On the other  hand, such schemes generally take sufficient period of time to  enable at least summary inquiries under Section 5-A of the Act  to  be  completed  without  any  impediment  whatsoever  to  the  execution of the scheme. Therefore, the very statement of the  public purpose for which the land was to be acquired indicated  the absence of such urgency, on the apparent facts of the case,  as to require the elimination of an enquiry under Section 5-A of  the Act.

42.    All  schemes  relating  to  development  of  industrial  and    residential areas must be urgent in the context of the country’s  need  for  increased  production  and  more  residential  accommodation.  Yet,  the  very  nature  of  such  schemes  of  development does not appear to demand such emergent action  as  to  eliminate  summary  enquiries  under  Section 5-A of the  Act…………………..”

(emphasis supplied)

39. The next judgment which deserves to be mentioned is Om Prakash v  

State of  U.P. (supra).   In 1976, NOIDA acquired large tracts  of  land in  

different villages of Ghaziabad District including village Chhalera Banger  

for planned industrial development of Ghaziabad. On being approached by  

NOIDA, the State  Government  invoked Section 17 (1)  and 17(4)  on the  

ground  that  the  land  was  urgently  required.   In  1987,  more  lands  were  

acquired from the same village by issuing notification under Section 4. This  

time the land owners were given opportunity to file their objections and after  

considering  the  same,  the  State  Government  issued  notification  under  

Section 6 for the acquisition of 353 acres land. In 1988, NOIDA submitted  

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fresh proposal for the acquisition of land belonging to the appellants and  

others (total  land measuring 294.26 acres).  The State  Government  issued  

notification under Section 4 read with Section 17(1) and 17(4) of the Act  

clearly  indicating  therein  that  Section  5-A  was  not  applicable.  The  writ  

petitions filed by the land owners were dismissed by the High Court. After  

noticing  the  arguments  of  the  learned counsel  for  the  parties,  this  Court  

framed the following questions.

“1. Whether  the  State  authorities  were  justified  in  invoking  Section 17(4)  of  the  Act  for  dispensing with  inquiry under Section 5-A of the Act. 2. In any case, whether the appellants’ lands have to  be treated  as  immune from acquisition proceedings  on  the ground that they were having abadi thereon and were,  therefore, governed by the policy decision of the State of  U.P. not to acquire such lands. 3. Whether  this  Court  should  refuse  to  exercise  its  discretionary  jurisdiction  under  Article  136  of  the  Constitution of India in the facts and circumstances of  the case. 4. What final orders.”

While dealing with question No.1, the Court noticed the scheme of  

Section 17,  referred to  the pleadings of the parties, and  the judgments in  

State of U.P. v. Pista Devi  (supra),  Narayan Govind Gavate v. State of  

Maharashtra (supra), Rajasthan Housing Board v. Shri Kishan (1993) 2  

SCC 84, State of Punjab v. Gurdial Singh (supra),  Nandeshwar  Prasad  

v.  U.P.  Govt.  (supra),  A.P. Sareen v. State of  U.P.  (1997) 9 SCC 359,  

Ghaziabad Development Authority v. Jan Kalyan Samiti (1996) 2 SCC  

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365,  Jai  Narain  v.  Union  of  India  (1996)  1  SCC  9  and  held  that  the  

decision to dispense with the inquiry envisaged under Section 5-A was not  

based on any real and genuine subjective satisfaction. In the process,  the  

Court noted that in 1989 the State Government had not resorted to Section  

17  and  the  acquisition  proceedings  were  finalized  after  holding  inquiry  

under Section 5-A and observed:

“We were informed by Senior Counsel Shri Mohta for NOIDA  that even though in the earlier acquisition of 1987 pursuant to  Section  4  notification,  inquiry  under  Section  5-A  was  not  dispensed with, by the time Section 6 notification came  to be  issued, Section 17(1) was resorted to as urgency had developed  at  least  by the  end of  December  1989.  If  that  be so,  it  was  expected  that  pursuant  to  the  requisition  of  14-12-1989  by  NOIDA  invoking  urgency  powers  of  the  State  Government,  consequential notification under Section 4(1) would have seen  the light of day at the earliest in connection  with acquisition of  the  proposed  494.26  acres  of  land  for  the  development  of  Sector  43  and  other  sectors.  But  curiously  enough,  nothing  happened  urgently  and  Section  4  notification  which  is  impugned in  the  present  case  was  issued  on 5-1-1991.  Thus  despite  the invocation of urgency by NOIDA by its letter dated  14-12-1989,  it  appears  that  the  State  did  not  think  the  said  proposal to be so urgent as to immediately respond and to issue  notification under Section 4 read with Section 17 sub-section  (4) till 5-1-1991. More than one year elapsed in the meantime.  Why this delay took place and why the State did not think it fit  to urgently respond to the proposal of NOIDA, has remained a  question mark for which there is no answer furnished by the  respondent-authorities  in  the  present  cases  and  nothing  is  brought  on  the  record  by  them to  explain  the  delay.  It  has,  therefore,  necessarily  to  be  presumed  that  despite  the  emergency powers of the State Government being invoked by  NOIDA, the State authorities in their wisdom did not think the  matter to be so urgent as to immediately respond and promptly  issue Section 4 notification read with Section 17(4).

… …. …

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Even  that  apart,  despite  proposal  to  acquire  this  land  was  moved by NOIDA as early as on 14-6-1988, and even thereafter  when the  request  was  sent  in  this  communication  on 14-12- 1989, the State authorities did not think the situation to be so  urgent as to respond quickly and could wait for more than one  year. When the appellants in the writ petitions  before the High  Court raised their grievances regarding dispensing with inquiry  under Section 5-A being not backed up by relevant evidence  and the subjective satisfaction of the State in this connection  was brought in challenge, all that was stated by NOIDA in its  counter in para 26 was to the effect that the contents of paras 25  and 26 of the writ petition were denied and that the petitioners  were not able to point out any lacunae in the proceedings under  the Land Acquisition Act. The position was no better so far as  the counter of the State authorities was concerned. In para 24 of  the counter before the High Court, all that was stated was that  paras 25 and 26 of the writ petition were denied. When we turn  to paras 25 and 26 of the writ petition, we find averments to the  effect  that  the  urgency  of  the  acquisition  was  only  for  the  purpose  of  depriving  the  petitioners  of  their  rights  to  file  objections  under  Section  5-A  and  their  right  to  hold  the  possession till they got compensation for which the respondents  had  issued  notification  under  Section  17(1)  as  well  as  notification Section 17(4) of the Act. But so far as  the process  of the acquisition was concerned,  the respondents  were taking  their own time, which would be evident from the fact that the  notification under Section 4 read with Section 17(4) was issued  on 5-1-1991 but  was  published  in the newspaper   on 30-3- 1991, whereas the declaration under Section 6 of the Act was  made on 7-1-1992 and that on the one hand, the respondents  had  deprived  the  petitioners  of  filing  their  objections  under  Section 5-A of the Act on the ground of urgency of acquisition,  but  on the other  hand,  they themselves had taken more than  nine months in issuing the declaration under Section 6 of the  said Act. This conduct of the respondents falsified their claim  of urgency of acquisition.

… … … The additional material  which was produced before the High  Court was by way of Annexures CA-3, CA-4 and CA-5. When  we turn to these annexures, we find that AnnexureCA-3 is  a  letter  dated  21-4-1990  written  by  the  District  Magistrate,  Ghaziabad,  to  the  Joint  Secretary,  Industries,  Government  of  

50

Uttar Pradesh. It recites that on examination, it was found that  the land was immediately required in public interest so that the  development  work  in  the  said  land  could  be  carried  out  smoothly.  What was the nature of urgency is not mentioned in  the said letter.  Therefore, the position remains as vague as it  was earlier. When we turn to Annexure CA-4 which is dated  12-6-1990,  we  find  that  the  District  Magistrate,  Ghaziabad  wrote to the Joint Secretary, Industries, State of U.P., that as to  how many farmers were going to be affected by the proposed  acquisition. It does not even whisper about the urgency of the  situation which requires dispensing with Section 5-A inquiry.  The last, Annexure CA-5 is the letter dated 14-12-1989 written  by NOIDA to the Land Acquisition Officer proposing urgent  acquisition of the lands in question. We have already made a  reference to the said letter. It recites that if immediate action for  acquisition  of  the  aforesaid  lands  adjacent  to  Sector  43  for  development of which the acquisition was to be resorted to was  not taken, then there was possibility of encroachment over the  area cannot by any stretch of imagination be considered to be a  germane ground for  invoking urgency  powers  for  dispensing  with  Section  5-A  inquiry.  Even  if  acquisition  takes  place  urgently by dispensing with inquiry  under Section 5-A and the  possession is taken urgently after Section 6 notification within  15 days of issuance of notice under Section 9 sub-section (1),  even then there is no guarantee that the acquired land would not  be encroached upon by unruly persons.  It  is a law and order  problem  which  has  nothing  to  do  with  the  acquisition  and  urgency  for  taking  possession.  Even  that  apart,  it  is  easy  to  visualize that if objectors are heard in connection with Section  5-A  inquiry  they  would  be  the  best  person  to  protect  their  properties  against  encroachers.  Consequently,  the  ground put  forward by NOIDA  in its written request dated 14-12-1989 for  invoking   urgency  powers  must  be  held  to  be  totally  irrelevant.”

(emphasis supplied)

40. We may now notice some recent  decisions.  In  Union of India vs.  

Mukesh  Hans  (supra),  this  Court  interpreted  Sections  5-A  and  17  and  

observed:

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“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  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.  

33. An argument was sought to be advanced on behalf of the  appellants that once the appropriate Government comes to the  conclusion that there is  an urgency or unforeseen emergency  under  Sections  17(1)  and  (2),  the  dispensation  with  inquiry  under  Section  5-A becomes  automatic  and  the  same  can  be  done by a  composite order  meaning  thereby that  there  is  no  need  for  the  appropriate  Government  to  separately  apply  its  mind  for  any  further  emergency  for  dispensation  with  an  inquiry  under  Section 5-A.  We are  unable  to  agree  with  the  above  argument  because  sub-section  (4)  of  Section  17  itself  indicates that the “Government   may direct   that the provisions of    Section 5-A shall not apply” (emphasis supplied) which makes  it  clear  that  not  in  every  case  where  the  appropriate  Government has come to the conclusion that there is urgency  and under sub-section (1) or unforeseen emergency under sub- section (2) of Section 17, the Government will ipso facto have  to direct the dispensation of the inquiry.”  

        (emphasis supplied)

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41. In  Union of India v. Krishan Lal Arneja  (2004) 8 SCC  

453, this Court approved quashing of the acquisition proceedings by the  

High Court and observed:

“16. Section 17 confers extraordinary powers on the authorities  under  which  it  can  dispense  with  the  normal  procedure  laid  down  under  Section  5-A  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 landowner  of his right in relation to immovable property to file objections  for  the  proposed  acquisition  and  it  also  dispenses  with  the  inquiry under Section 5-A of the Act. The authority must have  subjective satisfaction of the need for invoking urgency clause  under  Section  17  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 landowners and the inquiry under Section 5- A 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  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  

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or support for the laxity, lethargy or lack of care on the part of  the State administration.”

   (emphasis supplied)

42. In  Esso Fabs Private Limited vs.  State of  Haryana  (supra),   the  

Court  again  dealt  with  the  question  whether  the  State  was  justified  in  

invoking  Section 17(1)  and 17(4)  and dispensing with  the  inquiry  under  

Section 5-A and held:

“53.  Section  17,  no  doubt,  deals  with  special  situations  and  exceptional  circumstances  covering  cases  of  “urgency”  and  “unforeseen  emergency”.  In  case  of  “urgency”  falling  under  sub-section  (1)  of  Section  17  or  of  “unforeseen  emergency”  covered by sub-section (2) of Section 17, special powers may  be exercised by appropriate Government but as held by a three- Judge  Bench  decision  before  more  than  four  decades  in  Nandeshwar Prasad   and reiterated by a three-Judge Bench  decision  in  Mukesh  Hans,  even  in  such  cases,  inquiry  and  hearing of objections under Section 5-A cannot ipso facto be  dispensed with unless  a  notification under  sub-section (4)  of  Section 17 of the Act is issued. The legislative scheme is amply  clear  which  merely  enables  the  appropriate  Government  to  issue such notification under sub-section (4) of Section 17 of  the  Act  dispensing  with  inquiry  under  Section  5-A  if  the  Government intends to exercise the said power. The use of the  expression “may” in  sub-section (4)  of  Section 17 leaves no  room of doubt that it is a discretionary power of the government  to direct that the provisions of Section 5-A would not apply to  such cases covered by sub-section (1) or (2) of Section 17 of  the Act. 54. In  our  opinion,  therefore,  the  contention  of  learned  counsel for the respondent authorities is not well founded and  cannot be upheld that once a case is covered by sub-section (1)  or (2) of Section 17 of the Act, sub-section (4) of Section 17  would  necessarily  apply  and there  is  no question  of  holding  inquiry  or  hearing  objections  under  Section  5-A of  the  Act.  Acceptance of such contention or upholding of this argument  

54

will  make  sub-section  (4)  of  Section  17  totally  otiose,  redundant and nugatory.”

(emphasis supplied)

43.    In  Babu Ram v. State of Haryana  (2009) 10 SCC 115, this Court  

reversed the judgment of the High Court and quashed the notification issued  

by the State Government under Section 4 read with Section 17(1) and 17(4)  

for the acquisition of land for construction of sewage treatment plant.  After  

noticing the judgments in  State of Punjab v. Gurdial Singh  (supra),  Om  

Prakash v. State of U.P. (supra) and Union of India v. Krishan Lal Arneja  

(supra), the Court observed:

“As  indicated  hereinabove  in  the  various  cases  cited  by  Mr.Pradip Ghosh and, in particular, the decision in Krishan Lal  Arneja  case,  in  which  reference  has  been  made  to  the  observations  made by this  Court  in  Om Prakash case,  it  has  been emphasized that a right under Section 5-A is not merely  statutory but also has the flavour of fundamental rights under  Articles 14 and 19 of the Constitution. Such observations had  been made in reference to an observation made in the earlier  decision in Gurdial Singh case and keeping in mind the fact that  right  to  property  was  no  longer  a  fundamental  right,  an  observation was made that even if the right to property was no  longer a fundamental right, the observations relating to Article  14 would continue to apply in full force with regard to Section  5-A of the LA Act.”

44.     In   Anand Singh v.  State  of  U.P.  (supra),  the  two-Judge Bench  

considered  the  question  whether  the  State  Government  was  justified  in  

invoking Section 17(4) for the  acquisition of land for residential colony to  

55

be constructed by Gorakhpur Development Authority, Gorakhpur. The Court  

noted that notifications under Section 4(1) read with Section 17(1) and 17(4)  

were issued on November 23, 2003 and February 20, 2004 and declaration  

under Section 6 was issued on December 24, 2004, referred to 16 judicial  

precedents including those noticed hereinabove and held:

“The exceptional and extraordinary power of doing away with  an enquiry under Section 5-A in a case where possession of the  land  is  required  urgently  or  in  an  unforeseen  emergency  is  provided in Section 17 of the Act. Such power is not a routine  power  and  save  circumstances  warranting  immediate  possession it  should not  be lightly invoked.  The guideline is  inbuilt in Section 17 itself for exercise of the exceptional power  in dispensing with enquiry under Section 5-A. Exceptional the  power,  the  more circumspect  the  Government must  be in its  exercise. The Government obviously, therefore, has to apply its  mind before it dispenses with enquiry under Section 5-A on the  aspect  whether  the  urgency  is  of  such a  nature  that  justifies  elimination of summary enquiry under Section 5-A. A repetition of the statutory phrase in the notification that the  State  Government  is  satisfied  that  the  land  specified  in  the  notification is urgently needed and the provision contained in  Section  5-A  shall  not  apply,  though  may  initially  raise  a  presumption  in  favour  of  the   Government  that  prerequisite  conditions for exercise of such power have been satisfied, but  such  presumption  may  be  displaced  by  the  circumstances  themselves  having no reasonable  nexus with  the purpose for  which  the  power  has  been  exercised.  Upon  challenge  being  made to the use of power under Section 17, the Government  must  produce  appropriate  material  before  the  Court  that  the  opinion for dispensing with the enquiry under Section 5-A has  been formed by the Government after due application of mind  on the material placed before it. It  is  true  that  power  conferred  upon  the  Government  under  Section 17 is administrative and its opinion is entitled to due  weight, but in a case where the opinion is formed regarding the  urgency based on considerations not germane to the purpose,  

56

the judicial review of such administrative decision may become  necessary. As to in what circumstances  the power of emergency can be  invoked  are  specified  in  Section  17(2)  but  circumstances  necessitating invocation of urgency under Section 17(1) are not  stated  in  the  provision  itself.  Generally  speaking  the  development of an area (for residential purposes) or a planned  development  of  city,  takes  many  years  if  not  decades  and,  therefore,  there  is  no  reason  why  summary  enquiry  as  contemplated under Section 5-A may not be held and objections  of landowners / persons interested may not be considered. In  many cases, on general assumption likely delay in completion  of  enquiry  under  Section  5-A  is  set  up  as  a  reason  for  invocation  of  extraordinary  power  in  dispensing  with  the  enquiry little realizing that an important and valuable right of  the person interested in the land is being taken away and with  some effort enquiry could always be completed expeditiously.

The special provision has been made in Section 17 to eliminate  enquiry  under  Section  5-A  in  deserving  and  cases  of  real  urgency. The Government has to apply its mind on the aspect  that urgency is of such nature that necessitates  dispensation of  enquiry  under  Section  5-A.  We  have  already  noticed  a  few  decisions of this Court viz. Narayan Govind Gavate and Pista  Devi. In Om Prakash this Court held that the decision in Pista  Devi must be confined to the fact situation in those days when  it was rendered and the two-Judge Bench could not have laid  down a proposition contrary to the decision in Narayan Govind  Gavate. We agree.

As  regards  the  issue  whether  pre-notification  and  post- notification  delay  would  render  the  invocation  of  urgency  power void, again the case law is not consistent. The view of  this  Court  has  differed  on  this  aspect  due  to  different  fact  situation prevailing in those cases. In our opinion such delay  will  have  material  bearing  on  the  question  of  invocation  of  urgency power, particularly in a situation where no material has  been placed by the appropriate  Government before the Court  justifying  that  urgency  was  of  such  nature  that  necessitated  elimination of enquiry under Section 5-A.”                                                            (emphasis supplied)

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45.   In  Civil  Appeal  No.2334  of  2011,  Dev  Sharan  v.  State  of  U.P.,  

decided on March 7, 2011, the acquisition of land for construction of district  

jails  was  quashed  on  the  ground  that  there  was  no  valid  ground  or  

justification to exclude the application of Section 5-A of the Act and it was  

observed:

“…Admittedly, the Land Acquisition Act, a pre-Constitutional  legislation  of  colonial  vintage  is  a  drastic  law,  being  expropriatory in nature as it confers on the State a power which  affects person’s property right. Even though right to property is  no longer  fundamental  and was never a natural  right,  and is  acquired on a concession by the State, it has to be accepted that  without  right  to some property,  other  rights become illusory.  This  Court  is  considering  these  questions,  especially,  in  the  context of some recent trends in land acquisition. This Court is  of  the  opinion  that  the  concept  of  public  purpose  in  land  acquisition has to be viewed from an angle which is consistent  with the concept of a welfare State. The concept of public purpose cannot remain static for all time  to come. The concept, even though sought to be defined under  Section 3(f) of the Act, is not capable of any precise definition.  The said definition, having suffered several amendments,  has  assumed the character of an inclusive one. It must be accepted  that in construing public purpose, a broad and overall view has  to be taken and the focus must be on ensuring maximum benefit  to the largest number of people. Any attempt by the State to  acquire  land  by  promoting  a  pubic  purpose  to  benefit  a  particular group of people or to serve any particular interest at  the cost of the interest of a large section of people especially of  the common people defeats the very concept of public purpose.  Even though the concept of public purpose was introduced by  pre-Constitutional legislation, its application must be consistent  with the constitutional ethos and especially the chapter under  Fundamental Rights and also the Directive Principles. In  construing the  concept  of  public  purpose,  the  mandate  of  Article  13 of the Constitution that any pre-constitutional  law  

58

cannot in any way take away or abridge rights conferred under  Part-III  must  be  kept  in  mind.  By  judicial  interpretation  the  contents of these Part III rights are constantly expanded. The  meaning  of  public  purpose  in  acquisition  of  land  must  be  judged  on  the  touchstone  of  this  expanded  view  of  Part-III  rights.  The  open-ended  nature  of  our  Constitution  needs  a  harmonious  reconciliation  between  various  competing  principles  and  the  overhanging  shadows  of  socio-economic  reality in this country. Therefore, the concept of public purpose on this broad horizon  must also be read into the provisions of emergency power under  Section  17  with  the  consequential  dispensation  of  right  of  hearing  under  Section  5A of  the  said  Act.  The  Courts  must  examine these questions very carefully when little Indians lose  their small property in the name of mindless acquisition at the  instance of the State. If public purpose can be satisfied by not  rendering  common  man  homeless  and  by  exploring  other  avenues  of  acquisition,  the  Courts,  before  sanctioning  an  acquisition,  must  in  exercise  of  its  power  of  judicial  review,  focus  its  attention  on  the  concept  of  social  and  economic  justice. While examining these questions of public importance,  the Courts especially the Higher Courts, cannot afford to act as  mere umpires. ”

46. To be fair to the respondents, we may also notice the judgments in  

which the decision of the State to invoke Section 17(1) and/or 17(4) has  

been upheld. In State of U.P. v. Pista Devi (supra), this Court examined the  

justification  of  invoking  Section  17(1)  and  17(4)  of  the  Act  for  the  

acquisition of over 662 Bighas land situated in village Mukarrabpur, District  

Meerut  for  providing  housing  accommodation.  The  two-Judge  Bench  

distinguished the three-Judge Bench judgment in Narayan Govind Gavate  

v.  State  of  Maharashtra  (supra),   by  observing that  after  that  decision,  

population  of  India  had gone up by  hundreds  of  millions  and it  was  no  

59

longer  possible  for  the  Court  to  take  the  view  that  the  schemes  of  

development of residential  areas do not appear to demand such emergent  

action as to eliminate summary inquiries under Section 5-A of the Act.  

47. In Rajasthan Housing Board v. Shri Kishan (supra), this Court set  

aside the judgment of the majority of Full Bench of the High Court, which  

had quashed the acquisition of 2570 bighas land by the State Government by  

invoking Sections 17(1) and 17(4) of the Act for the benefit  of appellant  

Rajasthan Housing Board and observed:  

“The  material  placed  before  the  Court  disclosed  that  the  Government found, on due verification, that there was an acute  scarcity of land and there was heavy pressure for construction of  houses for weaker sections and middle income group people; that  the Housing Board had obtained a loan of Rs 16 crores under a  time-bound programme to construct and utilise the said amount  by March 31, 1983; that in the circumstances the Government  was satisfied that unless possession was taken immediately, and  the Housing Board permitted to proceed with the construction,  the  Board  will  not  be  able  to  adhere  to  the  time-bound  programme.  In  addition  to  the  said  fact,  the  Division  Bench  referred  to  certain  other  material  also  upon  which  the  Government had formed the said satisfaction viz., that in view of  the time-bound programme stipulated by the lender, HUDCO, the  Board had already appointed a large number of  engineers  and  other subordinate staff  for carrying out the said work and that  holding  an  inquiry  under  Section  5-A would  have  resulted  in  uncalled  for  delay  endangering  the  entire  scheme  and  time- schedule of the Housing Board. If must be remembered that the  satisfaction under Section 17(4) is a subjective one and that so  long as there is material upon which the Government could have  formed the said satisfaction fairly, the Court would not interfere  nor would it examine the material as an appellate authority. This  is  the  principle  affirmed  by decisions  of  this  Court  not  under  

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Section  17(4)  but  also  generally  with  respect  to  subjective  satisfaction.”

48. In  Chameli Singh v. State of U.P. (supra),  the three-Judge Bench  

upheld  the  acquisition  of  land  under  Sections  17  (1A)  and  17(4)  by  

observing that the problem of providing houses to the dalits, tribes and poor  

needed emergency measures and so long as the problem is not solved and  

the need of that segment of the society is not fulfilled, the urgency continues  

to subsist.

49.   In  First Land Acquisition Collector v. Nirodhi Prakash Gangoli  

(2002) 4 SCC 160, the Court  upheld the acquisition of land for Calcutta  

Medical College under Section 17(1) and 17(4) and observed:

“By no stretch of imagination, exercise of power for acquisition  can  be  held  to  be  mala  fide,  so  long  as  the  purpose  of  acquisition  continues  and  as  has  already  been  stated,  there  existed  emergency  to  acquire  the  premises  in  question.  The  premises  which  were  under  occupation  of  the  students  of  National  Medical  College,  Calcutta,  were  obviously  badly  needed  for  the  College  and the  appropriate  authority  having  failed  in  their  attempt  earlier  twice,  the  orders  having  been  quashed  by  the  High  Court,  had  taken  the  third  attempt  of  issuing notification under Sections 4(1) and 17(4) of the Act,  such acquisition cannot be held to be mala fide and, therefore,  the conclusion of the Division Bench in the impugned judgment  that  the  acquisition  is  mala  fide,  must  be  set  aside  and  we  accordingly set aside the same.”

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50. In Tika Ram v. State of Uttar Pradesh (2009) 10 SCC 689, the two-

Judge  Bench  mainly  considered  the  questions  relating  to  constitutional  

validity of the Uttar Pradesh Act nos. 8 of 1974 and 5 of 1991 by which  

amendments were made in Section 17 of the Act.   An ancillary question  

considered by the Court was whether the State Government was justified in  

invoking  the  urgency  provision.   The  Bench  referred  to  some  of  the  

precedents on the subject and refused to quash the acquisition by observing  

that the acquired land has already been utilized for construction of houses by  

third parties.   

51. In  Nand Kishore Gupta v. State of Uttar Pradesh (2010) 10 SCC  

282, the acquisition of land for construction of Yamuna Expressway was  

upheld and challenge to the decision of the State Government to dispense  

with the inquiry was negatived by making the following observations:

“We have deliberately quoted the above part of the High Court  judgment only to show the meticulous care taken by the High  Court in examining as to whether there was material before the  State Government to dispense with the enquiry under Section 5- A  of  the  Act.  We  are  completely  convinced  that  there  was  necessity  in  this  Project  considering  the  various  reasons  like  enormousness of the Project, likelihood of the encroachments,  number of appellants who would have required to be heard and  the time taken for that purpose, and the fact that the Project had  lingered already from 2001 till 2008. We do not see any reason  why we should take a different view than what is taken by the  High Court.”

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52. What is important to be noted is that in none of the aforementioned  

judgments,  the  Court  was  called  upon  to  examine  the  legality  and/or  

justification of the exercise of power under Section 17(1) and/or 17(4) for  

the acquisition of land for residential, commercial or industrial purpose.  In  

State  of  U.P.  v.  Pista Devi (supra),  Rajasthan Housing Board v.  Shri  

Kishan (supra) and Chameli Singh v. State of U.P. (supra), the invoking of  

urgency provision contained in Section 17(1) and exclusion of Section 5-A  

was approved by the Court keeping in view the acute problem of housing,  

which was perceived as a national problem and for the solution of which  

national housing policy was framed and the imperative of providing cheaper  

shelter to dalits, tribals and other disadvantaged sections of the society.  In  

First Land Acquisition Collector v. Nirodhi Prakash Gangoli (supra), the  

exercise of power under Section 17 was found to be justified because the  

land was already in the possession of the medical  college and the earlier  

exercise undertaken by the State for the acquisition of land got frustrated due  

to  intervention of  the  Court.   The factor,  which influenced this  Court  to  

approve the judgment of the High Court in  Tika Ram v. State of Uttar  

Pradesh (supra) was that the acquired land had already been utilized for  

construction of houses by third parties to whom the plots had been allotted  

and they were not parties to the litigation. In Nand Kishore Gupta v. State  

of U. P. (supra), the acquisition was upheld because the land was urgently  

needed for construction of Yamuna Expressway and by the time the matter  

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was decided by this Court, huge amount had been spent on the project.  As  

against this, the exercise of power under Section 17(1) and/or 17(4) for the  

acquisition  of  land  for  residential,  industrial  and  commercial  purposes,  

construction  of  sewage  treatment  plant  and  district  jails  was  held  to  be  

legally  impermissible  in  Raja  Anand  Brahma Shah  v.  State  of  Uttar  

Pradesh  (supra),  Narayan  Govind  Gavate  v.  State  of  Maharashtra  

(supra), Om Prakash v. State of U.P. (supra), Union of India v. Krishan  

Lal  Arneja  (supra),  Esso  Fabs  Private  Limited  v.  State  of  Haryana  

(supra), Babu Ram v. State of Haryana (supra) and Anand Singh v. State  

of Uttar Pradesh (supra).

53. From  the  analysis  of  the  relevant  statutory  provisions  and  

interpretation  thereof  by  this  Court  in  different  cases,  the  following  

principles can be culled out:

(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.  Sholapur  

Spinning and Weaving Co. Ltd.,  AIR (1954) SC 119,  Chiranjit Lal  

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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.

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(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  

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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.  

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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.

54. The stage is now set for consideration of the issue whether the State  

Government was justified in invoking the urgency provision contained in  

Section  17(1)  and  excluding  the  application  of  Section  5-A  for  the  

acquisition of land for planned industrial development of District Gautam  

Budh  Nagar.   A  recapitulation  of  the  facts  shows  that  upon  receipt  of  

proposal  from the  Development  Authority,  the  State  Government  issued  

directions to the concerned authorities to take action for the acquisition of  

land  in  different  villages  including  village  Makora.   The  

comments/certificate signed by three officers, which was submitted in the  

context of Government Order dated 21.12.2006 was accompanied by several  

documents  including  proposal  for  the  acquisition  of  land,  preliminary  

inquiry report submitted by the Amin, Land Acquisition, copies of khasra  

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khatauni and lay out plan, 10 per cent of the estimated compensation and a  

host  of other documents.   In the note dated nil  jointly signed by Deputy  

Chief Executive Officer, Greater Noida, Collector, Gautam Budh Nagar and  

four other officers/officials, the following factors were cited in justification  

of invoking the urgency provisions:

(a) The  area  was  notified  under  Uttar  Pradesh  Industrial  Areas  

Development Act, 1976 for planned industrial development.

(b) If there is any delay in the acquisition of land then the same  

is  likely  to  be  encroached and that  will  adversely  affect  the  

concept of planned industrial development of the district.

(c) Large tracts of land of the nearby villages have already been  

acquired  and  in  respect  of  some  villages,  the  acquisition  

proceedings are under progress.

(d) The  Development  Authority  urgently  requires  land  for  

overall  development,  i.e.  construction  of  roads,  laying  of  

sewerages, providing electricity, etc. in the area.

(e) The  development  scheme has  been duly  approved  by the  

State Government but the work has been stalled due to non-

acquisition of land of village Makora.

(f) Numerous reputed and leading industrial units of the country  

want to invest in the State of Uttar Pradesh and, therefore, it is  

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extremely  urgent  and  necessary  that  land  is  acquired  

immediately.

(g) If land is not made available to the incoming leading and  

reputed  industrial  concerns  of  the  country,  then  they  will  

definitely  establish  their  units  in  other  States  and  if  this  

happens, then it will adversely affect employment opportunities  

in the State and will also go against the investment policy of the  

Government.

(h) If written/oral  objections are invited from the farmers and  

are scrutinized, then it will take unprecedented long time and  

disposal thereof will hamper planned development of the area.

(i) As per the provisions of the Act, there shall be at least one  

year’s time gap between publication of the notifications under  

Sections 4 and 17 and Section 6.   

55. In our view, the above noted factors do not furnish legally acceptable  

justification  for  the  exercise  of  power  by  the  State  Government  under  

Section  17(1)  because  the  acquisition  is  primarily  meant  to  cater  private  

interest in the name of industrial development of the district.  It is neither the  

pleaded case of the respondents nor any evidence has been produced before  

the  Court  to  show  that  the  State  Government  and/or  

agencies/instrumentalities  of the State are intending to establish industrial  

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units  on  the  acquired  land  either  by  itself  or  through  its  

agencies/instrumentalities.  The respondents have justified the invoking of  

urgency provisions by making assertions, which are usually made in such  

cases by the executive authorities i.e. the inflow of funds in the State in the  

form  of  investment  by  private  entrepreneurs  and  availability  of  larger  

employment opportunities to the people of the area.  However, we do not  

find  any  plausible  reason  to  accept  this  tailor-made  justification  for  

approving  the  impugned  action  which  has  resulted  in  depriving  the  

appellants’  of  their  constitutional  right  to  property.   Even  if  planned  

industrial development of the district is treated as public purpose within the  

meaning of Section 4, there was no urgency which could justify the exercise  

of  power  by  the  State  Government  under  Section 17(1)  and 17(4).   The  

objective  of  industrial  development  of  an  area  cannot  be  achieved  by  

pressing some buttons on computer screen.  It needs lot of deliberations and  

planning keeping in view various scientific  and technical  parameters  and  

environmental  concerns.   The  private  entrepreneurs,  who are  desirous  of  

making  investment  in  the  State,  take  their  own  time  in  setting  up  the  

industrial  units.   Usually,  the  State  Government  and  its  

agencies/instrumentalities  would give them two to three  years’  to  put  up  

their  factories,  establishments  etc.   Therefore,  time required for  ensuring  

compliance of the provisions contained in Section 5-A cannot, by any stretch  

of imagination,  be portrayed as delay which will  frustrate the purpose of  

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acquisition. In this context, it is apposite to note that the time limit for filing  

objection under Section 5-A (1) is only 30 days from the date of publication  

of the notification under Section 4(1).  Of course, in terms of sub-section (2),  

the Collector is required to give opportunity of hearing to the objector and  

submit report to the Government after making such further inquiry, as he  

thinks necessary.  This procedure is likely to consume some time, but as has  

been well said, “Principles of natural justice are to some minds burdensome  

but  this  price-a  small  price  indeed-has  to  be paid  if  we desire  a  society  

governed by the rule of law.”  

56.  In this case, the Development Authority sent proposal some time in  

2006.  The authorities up to the level of the Commissioner completed the  

exercise of survey and preparation of documents by the end of December,  

2006 but it took one year and almost three months to the State Government  

to issue notification under Section 4 read with Section 17(1) and 17(4). If  

this  much  time  was  consumed  between  the  receipt  of  proposal  for  the  

acquisition of land and issue of notification, it is not possible to accept the  

argument that four to five weeks within which the objections could be filed  

under sub-section (1) of Section 5-A and the time spent by the Collector in  

making inquiry under sub-section (2) of Section 5-A would have defeated  

the object of acquisition.  

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57. The apprehension of the respondents that delay in the acquisition of  

land will lead to enormous encroachment is totally unfounded. It is beyond  

the comprehension of any person of ordinary prudence to think that the land  

owners would encroach their own land with a view to frustrate the concept  

of planned industrial development of the district.  

58 The perception of  the  respondents  that  there  should be atleast  one  

year’s time gap between the issue of notifications under Sections 4 and 6 is  

clearly misconceived.  The time limit of one year specified in clause (ii)) of  

the proviso to Section 6(1) is the outer limit for issue of declaration.  This  

necessarily  means  that  the  State  Government  can  complete  the  exercise  

under Sections 5-A and 6 in a shorter period.   

59. The only  possible  conclusion  which can be drawn from the above  

discussion is that there was no real and substantive urgency which could  

justify invoking of the urgency provision under Section 17(1) and in any  

case, there was no warrant to exclude the application of Section 5-A which,  

as mentioned above, represent the statutory embodiment of the rule of audi  

alteram partem.

60. We also find merit in the appellants’ plea that the acquisition of their  

land  is  vitiated  due  to  violation  of  the  doctrine  of  equality  enshrined  in  

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Article 14 of the Constitution.  A reading of the survey report shows that the  

committee constituted by the State Government had recommended release of  

land measuring 18.9725 hectares.  Many parcels of land were released from  

acquisition because the land owners had already raised constructions and  

were using the same as dwelling units.  A large chunk of land measuring  

4.3840 hectares was not acquired apparently because the same belong to an  

ex-member  of  the  legislative  assembly.   The  appellants had  also  raised  

constructions  on  their  land  and  were  using  the  same  for  residential  and  

agricultural purposes.  Why their land was not left out from acquisition has  

not been explained in the counter affidavit filed by the respondents.  The  

High Court should have treated this as sufficient for recording a finding that  

the respondents had adopted the policy of pick and choose in acquiring some  

parcels  of  land  and  this  amounted  to  violation  of  Article  14  of  the  

Constitution.  Indeed it  has not been pleaded by the respondents that the  

appellants cannot invoke the doctrine of equality because the other parcels  

of land were illegally left out from acquisition.       

61. The argument of the learned senior counsel for the respondents that  

the Court  may not  annul the impugned acquisition because land of other  

villages had already been acquired and other land owners of village Makora  

have not come forward to challenge the acquisition of their land cannot be  

entertained and the Court cannot refuse to protect the legal and constitutional  

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rights of the appellants’ merely because the others have not come forward to  

challenge the illegitimate exercise of power by the State Government. It is  

quite  possible that  others may have, due to sheer poverty,  ignorance and  

similar handicaps not been able to avail legal remedies for protection of their  

rights, but that cannot be made basis to deny what is due to the appellants.

62. In the result, the appeal is allowed.  The impugned order is set aside  

and the writ petition filed by the appellants is allowed.  Respondent No.1 is  

directed  to  pay  cost  of  Rs.  5,00,000/-  to  the  appellants  for  forcing  

unwarranted  litigation  on  them.   It  is,  however,  made  clear  that  the  

respondents shall be free to proceed from the stage of Section 4 notification  

and take appropriate action after complying with Section 5-A(1) and (2) of  

the Act.  It is needless to say if the appellants’ feel aggrieved by the fresh  

exercise undertaken by the State Government then they shall be free to avail  

appropriate legal remedy.    

….………………….…J. [G.S. Singhvi]

…..…..………………..J. [Asok Kumar Ganguly]

New Delhi; April 15, 2011.   

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