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REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION  CIVIL APPEAL NO. 6900 OF 2009

STATE OF UTTARAKHAND & ORS.    ..APPELLANTS VERSUS

RAJIV BERRY & ORS.   ..RESPONDENTS WITH

CIVIL APPEAL NO.6901 OF 2009 SHASHANK SHARMA    ..APPELLANT  

VERSUS STATE OF UTTARANCHAL & ORS.   ..RESPONDENTS

J U D G M E N T RANJAN GOGOI, J.  

1.     The Civil Appeals arise out of two separate orders passed by the High Court of Uttarakhand in the matter of acquisition of land  for  the  purpose  of  expansion  of  the

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Uttaranchal Secretariat. While Civil Appeal No.6901 of 2009 arises out of the judgment and order dated 23rd December, 2005 of the High Court dismissing the challenge to the acquisition made by the appellant land-owner on grounds to be noticed herein below, Civil Appeal No.6900 of 2009 arises out of another judgment and order dated 1st March, 2007 by which  the  impugned  acquisition  has  been interfered with by the High Court.  2. A brief conspectus of the relevant facts may now be set out.  

By notification dated 4th May, 2004 issued  under  Section  4(1)  of  the  Land Acquisition Act, 1894 (hereinafter referred to as "the L.A. Act") the land mentioned in the  schedule  thereto  was  notified  for acquisition for the purpose of expansion of secretariat  on  both  sides  (North/South)  of

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the  existing  secretariat  in  Dehradun.  By means  of  the  aforesaid  notification  the urgency  clause  under  Section  17(1)  of  the L.A. Act was invoked and furthermore enquiry under  Section  5A  of  the  L.A.  Act  was dispensed  with  in  exercise  of  power  under Section  17(4)  of  the  L.A.  Act.  The acquisition  was  subjected  to  a  challenge before the High Court of Uttarakhand in Writ Petition No.469 of 2004 which was disposed of by  the  order  of  High  Court  dated 30th October, 2004 in the following term:  

"In  these  three  writ petitions,  particularly  in writ petition No.469 of 2004 (M/B)  874  of  2004  (M/B)  the notification  under  Section  4 of  the  Land  Acquisition  Act has been challenged.  So also challenge  is  to  the notification  under  Section 17(4) of the Land Acquisition Act  by  applying  the  urgency clause.  In  writ  Petition No.840 of 2004 (M/B) there is

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a  common  challenge  to  the notification  which  provides for  the  acquisition  of  the land  for  extension  of  the Secretariat  as  also  for  the expansion of the road. These notifications are different.  

Mr.  Sudhanshu  Dhulia, Senior Advocate, in his usual fairness  has  shown  readiness to hear the petitioners or as the  case  may  be  the  persons interested.  Instead  of  going ahead with the urgency clause and  more  particularly dispensing  with  the  enquiry under Section 5-A.  In view of the  statement  made,  Mr. Naithani,  Senior  Advocate appearing  on  behalf  of  the petitioners withdraws the writ petitions, so far as challenge to  the  notification  dated 5.5.2004 is concerned.  

In  view  of  the  urgency felt, we feel that it will be better  for  us  to  fix  the programme.  Public  notice shall,  therefore,  be  given within seven days from today inviting  the  objections.  The concerned  Land  Acquisition Officer,  who  is  to  hear  the objection,  shall  hear  them within fifteen days. All the objections  shall  be  filed

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before  the  Land  Acquisition and  the  Land  Acquisition Officer shall dispose of the matter  one  way  or  the  other after giving full opportunity of hearing, etc. by December, 2004  or  as  the  case  may  be earlier thereto.  

With this, we dispose of the  Writ  Petition  No.469  of 2004.”

3. Consequent to the aforesaid order of the Court all the land-owners who were affected by  the  acquisition  notification  submitted their  objections  which  were  heard  by  the Special Land Acquisition Officer/Collector. Insofar  as  the  appellant  in  Civil  Appeal No.6901  of  2009  is  concerned,  it  appears that the aforesaid appellant had filed his objections  after  the  expiry  of  the  time stipulated  by  the  High  Court  in  the aforesaid  order  dated  30th October,  2004.

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Despite  the  same  his  objections  were considered  on  merits  and  as  the  same pertained to the quantum of compensation to be  awarded  the  same  were  left  open  for consideration at an appropriate stage. The writ  petition  filed  by  the  appellant land-owners was dismissed by the High Court.

4.  Insofar  as  the  other  land-owners  are concerned, the objections under Section 5A of the L.A. Act appear to have been rejected on merit. Thereafter on 14th March, 2005 the declaration under Section 6 of the L.A. Act was  issued.  Notice  to  handover  possession was issued to the land-owners on 10th March, 2006  and  report  of  service  of  the  said notice(s)  was  submitted  to  the  concerned authority on 16th March, 2006. Thereafter the possession  of  the  land  was  taken  on

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17th March,  2006.  The  said  possession  was taken in exercise of powers under Section 17(1) of the L.A. Act which provision had already  been  invoked  by  the  Notification dated 5th May, 2004 under Section 4 of the Act. Compensation, as required under Section 17(3A) i.e. 80% was, however, deposited in Court on 18th April, 2006. No award could be passed  as  in  the  meantime  Writ  Petition No.196 of 2006 (out of which Civil Appeal No.6900/2009 has arisen) was instituted and interim orders were passed therein. The said writ  petition,  as  already  mentioned,  was allowed by the impugned judgment and order dated  1st March,  2007  by  which  the acquisition in question was set aside by the High  Court.  It  is  in  these  circumstances that  the  State  of  Uttarakhand  has  filed Civil Appeal No.6900 of 2009 challenging the

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judgment and order of the High Court. Civil Appeal No.6901 of 2009, as already noticed, has been filed by an individual land-owner by  which  his  challenge  to  the  same acquisition was negatived by the High Court by  its  judgment  and  order  dated 23rd December, 2005 in Writ Petition No.393 of  2005  on  the  grounds  mentioned  herein above.  

5. We have heard the learned counsels for the parties.  CIVIL APPEAL NO. 6900 OF 2009 - 6. A perusal of the order of the High Court would go to show that the principal basis  on  which  the  High  Court  thought  it proper  to  strike  down  the  acquisition  in question  is  that  the  records  and  material laid before it by the State did not disclose due  and  satisfactory  consideration,  by  the

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State  Government,  of  the  report  of  the Collector  submitted  after  holding  of  the enquiry under Section 5A of the L.A. Act. Such  consideration  by  the  State  Government being  a  mandatory  requirement  under Section  6,  before  publication  of  the declaration contemplated thereunder, the High Court  found  fault  with  the  notification/ declaration  issued  under  Section  6  of  the L.A. Act. The High Court further held that with  the  striking  down  of  the  Section  6 declaration/notification  it  will  become impossible  to  meet  another  statutory requirement,  namely,  publication  of  the Section 6 declaration/notification within a period of one year of the publication of the notification  under  Section  4  of  the  L.A. Hence the notification under Section 4 was also interfered with/set aside by the High

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Court.  7. To demonstrate that the basis of the High  Court’s  order  in  striking  down  the acquisition  is  apparently  wrong  and unacceptable Ms. Rachana Srivastava, learned counsel  for  the  appellant  State  in  Civil Appeal No.6900 of 2009 who is the respondent in Civil Appeal No.6901 of 2009, has placed before  the  Court  the  record  in  original pertaining to the decision taken by the State Government  on  the  report  of  the  Collector submitted  after  completion  of  the  enquiry under Section 5A of the L.A. Act. In fact the said record was specifically called for by this Court by its order dated 27th July, 2016,

8. Shri  M.L.  Varma,  learned  Senior Counsel for the respondent in C.A.No.6900 of 2009 and Dr. Abhishek Atrey, learned counsel for the appellant in Civil Appeal No.6901 of

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2009 have very elaborately taken the Court through the orders of the High Court and the materials laid before the High Court in the course  of  the  adjudication  of  the  writ proceeding in question. It is contended that the Office Memorandum dated 15th  April, 2006 under the signature of the Secretary, Public Works Department, Government of Uttarakhand, which  was  issued  in  connection  with  the instant subject matter, goes to show that the consideration and approval of the Government under Section 6 of the L.A. Act was rendered on the said date i.e. 15th April, 2006 which is  well  after  the  date  of  the notification/declaration under Section 6 of the L.A. Act. The said fact, according to the learned counsels, has been admitted in the counter  affidavit  of  the  State  before  the High Court.

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9. It  is  further  contended  by  the learned counsels for the land-owners that for the first time before this Court some records had been placed by means of an I.A. (I.A. No.6) to show that it is on 14th March, 2005 that the approval of the Government to the report of the Collector was accorded. However in  the  said  record  the  Authority  who  had taken the decision is not mentioned. The said defect is sought to be rectified by placing the same document showing the name of the Departmental  Secretary  by  means  of  another I.A. (I.A. No.8). According to the learned counsel, the said facts should not inspire the confidence of the Court in veracity of the record produced. Furthermore, according to the learned counsel, the fact that alleged approval to the report of the collector and the Section 6 notification is of the same day

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i.e. 14th March, 2005 is another significant fact  that  the  Court  must  consider  in adjudging  the  acceptability  of  the  stand taken.  

10. It  has  also  been  submitted  by  the learned  counsels  that  Shri  Sandhu  was  not duly authorized to consider the report of the Collector  and  to  approve  the  same.  Under Section  6  of  the  L.A.  Act  the  report  was required  to  be  considered  and  satisfaction arrived at by the State Government. There is no  mention  that  the  consideration  of  the report  and  the  approval  thereto  by Shri Sandhu was in the name of the Governor as  required  under  Article  166  of  the Constitution of India.  

11. Additionally, it has been  contended on

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behalf of the land owners that the urgency clause  invoked  in  the  notification  under Section  4  of  the  L.A.  Act  having  been subsequently waived and the objections of the land-owners  having  been  heard,  the  State could  not  have,  once  again,  reverted  to invoke the provisions of Section 17(1) of the L.A. Act. Possession of the land prior to the passing  of  the  Award  could  not  have  been taken and that too by payment of 80% of the estimated  compensation  at  a  point  of  time subsequent to the taking over of possession. In this regard, it has also been contended that taking over of possession of the land on 17th March, 2016 was without adequate notice and  furthermore  that  the  possession  taken over was only symbolic/paper possession.  It has  also  been  contended  on  behalf  of  the land-owners that the land is lying unutilized

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till date and, in fact, in a recent meeting of  the  Government  convened  by  the  Chief Secretary of the State it was expressed that the  impugned  acquisition  need  not  be proceeded with any further.  

12.   We have perused the records in original placed before us by the appellant-State. The note-sheets  contained  in  I.A.  Nos.6-7  and I.A.  Nos.8-9  are  translated  copies  of  the relevant  portions  of  the  decision  making process  contained  in  the  said  Original Records. Having perused the said records we find no difficulty in accepting the same and in holding that the contents thereof reflect a true and correct account of the manner in which the decision had been arrived at. The decision  to  approve  the  report  of  the Collector was taken on 14th March, 2005 by one

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Shri S.S.Sandhu who was, at that time, the Departmental  Secretary  (P.W.D.  Secretary). The detailed note-sheet would go to show a consideration  of  the  grounds  urged  by  the land-owners and the reasons for the rejection of the said objections raised. The decision making process involved a multi-tier process culminating  in  the  final  decision  of  Shri Sandhu, the Departmental Secretary.  If the above is what is disclosed by a consideration of the records in-original, we do not see how any fault can be found in the manner in which the decision has been arrived. Looking into the  reasons  cited  we  do  not  find  any infirmity  in  the  merits  of  the  decision either. The fact that the final order in the file was passed by the Departmental Secretary on 14th March, 2005 on which very date the declaration/notification under Section 6 of

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the L.A. Act was also issued cannot lead the Court  to  any  adverse  conclusion  so  as  to invalidate either the decision taken or the notification  issued.  Insofar  as  the jurisdiction of the Departmental Secretary to take the decision in question is concerned, all that is required to be noticed is that under  the  Rules  of  executive  business  it cannot  be  denied  that  Shri  Sandhu  as  the Departmental  Secretary  (P.W.D.)  would  be competent to take a decision on behalf of the State. When a decision is taken in the file, the same obviously would not be in the name of  the  Governor.  However,  in  the  formal notification dated 14th March, 2005 the above decision is expressed to be taken in the name of  the  Governor  of  the  State.  In  such  a situation, the Court will find no fault with the notification/declaration dated 14th March,

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2005 on the ground that it is contrary to or inconsistent with the provisions of Article 166 of the Constitution of India.  

13.  The above facts coupled with the text of  the  Notification  dated  15th April,  2006 would  make  it  clear  that  the  said Notification does not detract from the above position as has been sought to be contended on behalf of the land-owners. The contents of the State’s affidavit before the High Court, in  the  light  of  what  is  disclosed  by  the original records, would not be determinative of the issue.   

14. There  can  be  no  doubt  that  the statute under which the acquisition was made is  an  expropriatory  legislation  and, therefore, must be strictly construed. This has been the consistent view of this Court.

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Illustratively  we  may  refer  to  Essco  Fabs Private  Limited  and  another  vs.  State  of Haryana and another  1.  In the instant case in the  Notification  dated  5th May,  2004  under Section 4 of the L.A. Act the provisions of Sections  17(1)  and  17(4)  were  invoked. Objections of the land-owners under Section 5A were dispensed with. The said position was subsequently  altered  and  objections  were allowed to be filed and all such objections were considered by the Collector. Thereafter the  report  of  the  Collector  was  duly considered by the State Government and the Notification under Section 6 was issued. The objections of the land- owners in this regard have  not  been  found  acceptable  by  us  for reasons indicated above.

15.  In  the  light  of  the  above,  the 1 (2009) 2 SCC 377

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alternative/additional contention advanced on behalf  of  the  land-owners  may  now  be considered. It is urged that the provisions of Section 17(4) of the L.A. Act having been initially invoked but subsequently abandoned and objections having been  allowed to be filed, the State cannot turn back and take possession of the land under Section 17(1) of the Act.  

16.   Sections 17(1) and Section 17(2) vest power and jurisdiction in the State to take possession  of  the  land  even  prior  to  the passing of the award.  Section 17(4) enables the State to take such possession even by dispensing  with  the  requirement  of  the opportunity contemplated under Section 5A of the Act.  Sections 17(1) and 17(2) on the one hand  and  Section  17(4)  operates  in  two

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different fields. It is extent of urgency or emergency  that  would  determine  the application  of  the  respective clauses/sub-sections  of  Section  17  of  the L.A. Act.  In other words, even though the urgency  clause  under  Section  17(1)  and Section 17(2) may be invoked in a given case, the  opportunity  of  filing  objections  under Section  5A  of  the  L.A.  Act  need  not  be dispensed  with  and  can  still  be  afforded. However, if the provisions of Section 17(4) are invoked, the State would  be empowered to dispense  with  the  requirement  of  affording opportunity  under  Section  5A  and  take possession prior to making of the award. The dispensation of the opportunity contemplated by Section 5A by invoking Section 17(4) is not  an  invariable  consequence  of  the invocation of Sections 17(1) or (2). This is

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what has been held in  Nageshwar Prasad and others vs. U.P. Government and others etc.  2; Union of India and others vs. Mukesh Hans  3

and  Essco Fabs Private Limited and another vs. State of Haryana and another (supra).

17. What  has  happened  in  the  present case  is  that  even  though  the  State  had departed from its initial stand of invoking Section 17(4) of the Act and had given to the land-owners the opportunity contemplated by Section 5A, it had taken possession of the land prior to the passing of the award by invoking the provisions of Section 17(1) of the L.A. Act. It has already been elucidated in details why it was permissible for the state to do so.  18.  While there can be no manner of doubt

2 [AIR 1964 SC 1217] 3 [(2004) 8 SCC 14]

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that in the present case compensation under Section 17(3A) was paid (on 18th April, 2006) after the date of taking over of possession (on 17th March, 2006), time and again, it has been held by this Court that the said fact by itself would not invalidate the acquisition. Reference to Tika Ram and others  vs. State of Uttar Pradesh and others  4 will suffice. Several earlier decisions of this Court on the  above  issue  have  been  referred  to  in paragraph  95  of  the  report  in  Tika  Ram (supra),  details  of  which  need  not  be repeated herein.   

19.  So  far  as  the  taking  over  of possession without notice is concerned, we do not find the said ground to be substantiated by the records placed before the Court in I.A. No.17. Notice to handover possession was 4 (2009) 10 SCC 689

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issued  on  10th March,  2006  and  report  of service of such notice(s) was submitted to the concerned authority on 16th March, 2006. Thereafter,  possession  was  taken  on  17th

March,  2006.  From  the  Possession Certificates, which are also on record, we do not find the contention of the land-owners that  taking  over  of  such  possession  was symbolic to be substantiated in any manner. Consequently,  the  reliance  placed  on  the decision  of  this  Court  in  Raghbir  Singh Sehrawat vs. State of Haryana and others  5 is not of any consequence.  

20. For the aforesaid reasons, we cannot agree with the conclusion of the High Court that  the  impugned  acquisition  suffers  from any  fundamental  flaw  or  illegality  which would require the same to be struck down as 5 (2012) 1 SCC 792

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has  been  done  by  the  High  Court  in  Writ Petition No.196 of 2006 (impugned in Civil Appeal No.6900/2009).  Consequently, we allow the appeal filed by the State, namely, Civil Appeal  No.6900  of  2009  and  set  aside  the order of the High Court dated 1st March, 2007 passed in Writ Petition No.196 of 2006. The natural  corollary  of  above  would  be  to dismiss Civil Appeal No.6901 of 2009 which we hereby do.  

21. As we have expressed no opinion on the entitlement of the any of the parties to apportionment  of  the  compensation  no  order will be called for in this regard except that compensation for the acquisition will now be determined in accordance with the provisions of  The  Right  to  Fair  Compensation  and Transparency  in  Land  Acquisition,

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Rehabilitation and Resettlement Act, 2013.  

22. The appeals as also all the pending applications including the contempt petition are disposed of in the above terms.  

................. [RANJAN GOGOI, J]

.................... [PRAFULLA C. PANT,J]

PLACE : NEW DELHI DATED : 10th AUGUST, 2016.