NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1182 OF 2003  

State of West Bengal and others .......Appellants

Versus

Prafulla Churan Law and others          ......Respondents  

WITH  

CIVIL APPEAL NO. 1183 OF 2003  

J U D G M E N T

The appellants are aggrieved by the order of the Calcutta High Court,  

which annulled the  invoking of  Section 17 of  the  Land Acquisition Act,  

1894 (for short, “the Act”) by the State Government for the acquisition of  

premises No. 14 and 12/1, Hare Street, Calcutta.    

There is no dispute between the parties that possession of the  

premises in question was taken by the Government before independence in  

March, 1944 by invoking the provisions of the Defence of India Act.   After  

15 years, the State Government issued order dated 30.9.1959 under Section  

3(1)  of  the  West  Bengal  Premises  Requisition  and  Control  (Temporary

Provisions)  Act,  1947  (for  short,  “the  1947  Act”)  for  requisition  of  the  

premises.

After 31 years, the respondents filed Writ Petition No.3601 of  

1990 questioning the continued possession of the premises by the appellants.  

The learned Single Judge of the High Court allowed the writ petition and  

issued  a  mandamus  for  restoration  of  the  premises  to  the  respondents.  

Notification dated 27.8.1990, issued by the State Government under Section  

4(1) of the Act for acquisition of the premises, was quashed by the High  

Court in Writ Petition No. 1382 of 1991.   Thereafter, the respondents filed  

Writ Petition No. 3790 of 1993 and reiterated their prayer for restoration of  

possession.  The learned Single Judge allowed the writ petition and directed  

that the possession of the premises be delivered to the writ petitioners within  

four months.  At the same time, he made it clear that during this period the  

concerned authorities may acquire the property in accordance with law and  

observed that if the property is acquired within that period, the question of  

handing over the possession will not arise.  The respondents challenged the  

latter part of the order of the learned Single Judge in Appeal No. 35 of 1994,  

which was disposed of by the Division Bench vide order dated 18.4.1994,  

the relevant portions of which are extracted below:

“We are conscious of the contentions raised by the appellants in  this  regard,  but  we  think  that  we  cannot  prevent  the  State  authorities  to  acquire  the  premises  in  question in  accordance  

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with  the  law  after  ad-hearing  to  the  proper  formulates  as  delineated in the statute.  Some steps have already been taken in  this  regard  in  the  meantime.   Till  such  time  the  acquisition  proceedings are complete, the respondents cannot however take  advantage  of  the  situation  and  continue  at  the  old  rate  of  compensation which was fixed amount 40 to 50 years before.  In one case the requisition was made in 1944 and in other case  it was in 1956.

We would, accordingly, direct the respondent authorities to pay  by way of ad-interim measure a monthly compensation at the  rate of Rs.10/- per sq.ft. confirming to the market rate for their  occupation with a further direction upon the State respondents  to complete the acquisition proceeding within a period of six  months from this date.  If this proceeding are not complete by  that  date,  the  mandate  as  passed  by  the  learned  trial  Judge  should  definitely  be  operative  and  the  writ  petitioners,  the  present appellants, would be entitled to get back the possession  of the disputed premises in accordance with law.”

Special  Leave  Petition  (C)  No.  4899  of  1996  filed  by  the  

respondents was dismissed by this Court on 28.2.1996 with liberty to them  

to claim damages for the occupation of the premises for the period between  

the date on which the term of requisition came to an end and the date on  

which the acquisition proceedings were initiated.   

In  the  meanwhile,  the  State  Government  issued  notification  

dated 19.7.1994 under Section 4(1) read with Section 17(4) of the Act for  

acquisition  of  the  premises  in  question  for  the  purpose  of  providing  

permanent accommodation to the unit of Cottage and Small Scale Industries,  

Bangasree  and  also  for  West  Bengal  Ceramic  Development  Corporation.  

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This was followed by notification under Section 6, which was published on  

18.7.1995.  

The respondents challenged the aforementioned notifications in  

Writ  Petition No. 870 of 1996 on several  grounds including the one that  

there  was  no valid  ground for  invoking Section 17(4)  of  the  Act,  which  

resulted in depriving them of the right to file objection under Section 5-A.  It  

was pleaded that the purpose of acquisition was not such which could justify  

dispensing with the inquiry envisaged under Section 5-A.

The  learned  Single  Judge  dismissed  the  writ  petition  by  

observing that the decision of the State Government to invoke Section 17(4)  

was legally correct and justified and the power of judicial review cannot be  

exercised to interfere with the subjective satisfaction on the issue of urgency.  

The Division Bench allowed the appeal filed by the respondents and quashed  

the acquisition by recording the following observations:

“The virtue of a public enquiry case not be overstressed.  It is  the  very  heart  and  soul  of  the  rule  of  law.   It  stops  high  handed action.   It  stops mere  repetition or  words found in  Act,  when such repetition lacks substance, in the facts and  circumstances of a particular case.  This is the reason why  such a hearing is usually compartmentalized as an important  compartment of the rules of natural justice.  Had there been a  public enquiry, in a usual manner, the parties would know,  what is the reason for their losing their right to their property;  in that event, the court would also be in the know of far more  facts.   When  approving  or  disapproving  of  acquisition  

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proceedings,  the  details  and  the  facts  are  necessary  and  important, not only for the parties, but also for the court.   

Here we know nothing.  Everything has been short – circuited  by preliminary notifications doing away with public enquiry  without  ever even trying to put  it  afoot.   The Government  proceeded  with  a  closed  mind,  in  an  authoritarian  way,  paying  attention  only  to  words  being  repeated  in  the  Notifications, exactly as those appear in the L.A. Act.

We  are  thus  of  the  opinion  that  both  the  notifications  in  regard to both the premises issued in a combined way under  section  4  and  17(4)  were  the  products  of  a  closed  mind,  which was already made up, that the premises being in the  possession of the government undertakings, would be kept by  such government undertakings, and a compensation would be  awarded to the public parties.  The whole proceedings show  such a closed mind.  The appellants had lost their property as  soon as the combined notice under section 4 and 17(4) had  been published.  

In  our  opinion,  this  manner  of  proceeding  to  acquire  land  vitiates  the  entire  acquisition proceedings.  Dispensing with  hearing of objections, when there was no real urgency, is a  fatal infirmity.”

Shri  Avijit  Bhattacharjee,  learned  counsel  for  the  appellants  

submitted that the premises were needed for a public purpose i.e., providing  

permanent accommodation to the unit of Cottage and Small Scale Industries,  

Bangasree and also for West Bengal Ceramic Development Corporation and,  

as  such,  no  exception  could  be  taken  to  the  procedure  adopted  by  the  

appellants.  Learned  counsel  emphasized  that  Section  17(4)  was  invoked  

because in terms of order dated 18.4.1994 passed by the Division Bench of  

the  High  Court,  the  State  Government  was  obliged  to  complete  the  

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acquisition  proceedings  within  six  months  and  this  could  not  have  been  

possible if objections were invited and opportunity of hearing was given to  

the  respondents  as  per  requirement  of  Section  5-A.   In  support  of  his  

argument,  Shri  Bhattacharjee  relied  upon  the  judgment  of  this  Court  in  

Chameli  Singh and others v. State of U.P. and another (1996) 2 SCC  

549.   

Shri  Shyam Divan,  learned  senior  counsel  appearing  for  the  

respondents  supported  the  impugned  order  and  argued  that  the  Division  

Bench  of  the  High  Court  did  not  commit  any  error  by  quashing  the  

acquisition.   He  relied  upon  the  recent  judgment  in  Anand  Singh  and  

another v. State of Uttar Pradesh and others (2010) 11 SCC 242, and  

submitted  that  the  High  Court  has  rightly  nullified  the  acquisition  

proceedings  on  the  ground  that  there  was  no  such  urgency  which  could  

justify short circuiting the rule of hearing enshrined in Section 5-A of the  

Act.

We have considered the respective submissions and carefully perused  

the record.   The applicability of Section 17 of the Act has been considered  

in several cases, but it is not necessary to burden the judgment with large  

number of precedents and it will be sufficient to notice the two judgments  

which have direct bearing on the issue arising in these appeals.  In Narayan  

Govind Gavate v. State of Maharashtra (1977) 1 SCC 133, a three-Judge  

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Bench  of  this  Court  considered  various  facets  of  the  issue  relating  to  

invoking of urgency clause for the acquisition of land for development and  

utilization as a residential-cum-industrial area.  The Bombay High Court had  

allowed the writ petitions filed by the land owners and quashed the invoking  

of  Section 17(4)  of  the Act.   This  Court  first  considered the question of  

burden of proof in matters in which inquiry under Section 5A is dispensed  

with,  referred  to  Phipson  on  Evidence  (11th Edition),  the  judgment  in  

Woolmington v. Director of Public Prosecutions 1935 AC 462, noticed  

the provisions of Sections 101, 102, 103, 106 and 114 of the Evidence Act  

and held:

“Our  conclusion  therefore  is  that  where  certain  conditions  precedent  have  to  be satisfied  before a  subordinate  authority  can  pass  an  order,  (be  it  executive  or  of  the  character  of  subordinate legislation), it is not necessary that the satisfaction  of those conditions must be recited in the order itself, unless the  statute requires it, though, as we have already remarked, it is  most  desirable  that  it  should  be  so,  for  in  that  case  the  presumption  that  the  conditions  were  satisfied  would  immediately arise and burden would be thrown on the person  challenging the fact of satisfaction to show that what is recited  is not correct. But even where the recital is not there on the face  of the order, the order will not become illegal ab initio and only  a further burden is thrown on the authority passing the order to  satisfy the court by other means that the conditions precedent  were complied with. In the present case this has been done by  the filing of an affidavit before us.

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  

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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.”

(emphasis supplied)

The  Court  then  considered  whether  there  was  any  justification  for  

invoking  the  urgency  clause  for  acquisition  of  land  for  residential  and  

industrial purposes and observed:

“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  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. 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. There is no indication whatsoever in the affidavit filed on  behalf  of  the  State  that  the  mind  of  the  Commissioner  was  

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applied at all to the question whether it was a case necessitating  the elimination of the enquiry under Section 5-A of the Act.  The recitals in the notifications, on the other hand, indicate that  elimination of the enquiry under Section 5-A 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 5-A of the Act. It is certainly a ease in 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 5-A 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 not 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)

In  Anand  Singh’s  case (supra),  the  two-Judge  Bench  

considered  the  question  whether  the  State  Government  was  justified  in  

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

constructed by Gorakhpur Development Authority, Gorakhpur.  The Court  

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

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

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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,  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  

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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 realising 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. There is a conflict of view in the two  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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We may now revert to the case in hand.  A brief recapitulation of the  

facts shows that possession of the premises in question was taken in 1944  

under the Defence of India Act.   After 46 years, an attempt was made by the  

appellants to acquire the premises but could not achieve their object because  

notification dated 27.8.1990 issued under Section 4(1) was quashed by the  

High Court.  Thereafter, no action was taken for acquisition of the premises  

till  after the disposal of Appeal No.35 of 1994.  The appellants have not  

explained as to why appropriate steps could not be taken for acquisition of  

the premises by complying with the requirement of Section 5-A of the Act.  

The time gap of 3 years between the quashing of first notification and issue  

of the second notification was too long to justify invoking of urgency clause  

which resulted in depriving the respondents of their right to raise objection  

against acquisition of the premises.  If the appellants felt that six month’s  

time  was  not  sufficient  for  completing  the  acquisition  proceedings,  they  

could have filed an application in Appeal No.34 of 1994 for extension of the  

time.  However, the fact of the matter is that no such effort was made by  

them and the urgency clause was invoked on the pretext of completion of the  

acquisition  in  terms  of  the  direction  given by the  High Court  in  Appeal  

No.35  of  1994.    In  our  view,  this  was  clearly  impermissible  and  the  

respondents could not be deprived of their legitimate right to raise objection  

and to be heard against the proposed acquisition of the premises.    

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As a sequel to the above discussion, we hold that the Division Bench  

of the High Court did not commit any error by quashing the Notifications  

issued under Section 4(1) read with Section 17 and Section 6 of the Act.

In the result, the appeals are dismissed.  The parties are left to bear  

their own costs.

….………………….…J.           [G.S. Singhvi]

….………………….…J.           [Asok Kumar Ganguly]

New Delhi; February 4, 2011

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