REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6419  OF 2019 (Arising from SLP(C) No. 9811/2018)

Union of India and another ..Appellants

Versus

Mohiuddin Masood and others ..Respondents

J U D G M E N T

M.R. SHAH, J.

Delay condoned.  Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 10.04.2017 passed by the High Court of Judicature at

Allahabad in Writ Petition No. 2069 of 2010, by which the High Court

has allowed the said writ petition and has quashed and set aside the

notifications  issued  under  Sections  4  & 6  respectively  of the  Land

Acquisition Act, 1894 (hereinafter referred to as the ‘Act’) with respect

to the land in question on the ground that the urgency clause was

illegally and wrongly  invoked, the Union of  India and the acquiring

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body, i.e., Director General of ITBP have preferred the present appeal.

3. That a request for providing about 75 acres of land for

establishing one Battalion Headquarter of ITBP at Kanpur Nagar was

made to the  Government of  Uttar Pradesh  by the  Director, Police

Finance,  ITBP as due to increasing Counter Insurgency Operations,

Law and order duties of ITBP, VVIP security duties and  Disaster

Management Operations, it was decided to establish Battalion

headquarter of ITBP at Kanpur Nagar, Uttar Pradesh and it was

requested to urgently acquire the land by finding out suitable pieces of

land.   It appears that thereafter on 5.2.2009, the Special Secretary,

State of Uttar Pradesh wrote a letter to the District Magistrate, Kanpur

Nagar and Lucknow for identifying 72 to 75 acres of land for being

provided for establishment of the Battalion headquarter of ITBP.   

3.1 That thereafter, notification under Section 4 of the Act came to be

issued on  2.9.2009 for  urgent acquisition of the land in order to

facilitate the accommodation of the troops and for ITBP headquarter.

That immediately on issuance of notification under Section 4 of the

Act, respondent nos. 1 & 2 herein filed writ petition No. 54836 of 2009

before the Allahabad High Court challenging the Section 4 notification.

The aforesaid petition came to be dismissed by the High Court as pre­

mature vide order dated 3.11.2009.   That thereafter the State

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Government  issued notification under Section 6 of the Act invoking

the urgency clause and invoking Section 17 of the Act, vide

notification dated 11.12.2009 and directed the Collector to take

possession  of the land.  That thereafter  again  and on  issuance  of

notification under Section 6 of the Act on 11.12.2009, respondent nos.

1 & 2 herein filed another writ petition No. 2069 of 2010 before the

Allahabad High Court.  Before the High Court, number of submissions

were made on merits as well as on invoking the urgency clause and

dispensing with the procedure under Section 5A of the Act.  The said

writ petition was opposed by the appellants justifying the invocation of

urgency clause.   It appears that thereafter the State  Government

acquired the land in the month of December, 2010 by adjudging the

amount of compensation to the tune of Rs.6,33,09,176.41 inclusive of

solatium for the land in question.  3.2 That by the impugned

judgment and order and following and relying upon the decision of

this Court in the case of  Radhy Shyam v. State of U.P., reported in

(2011)  5 SCC 553, the High Court has observed and held that  the

State Government was not justified in invoking the urgency clause and

dispensing with the enquiry under Section 5 A of the Act.   The High

Court has observed and held that there was no immediate urgency

and no  facts  existed before the  State  Government for invoking the

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power under Section 17(1) and Section 17(4) of the Act and

consequently has held the notifications under Section 4 & 6 of the Act

respectively as bad.   However, taking note of the development of the

acquired land  and investment of public  money for  development of

acquired land running into crores of rupees, subsequent to the

acquisition notifications, after considering and following the decision

of this  Court in the case of  Sahara India  Commercial  Corporation

Limited v. State of Uttar Pradesh, reported in (2017) 11 SCC 339, the

High Court has observed and held that the notifications under Section

4 & 6 respectively of the Act are bad.  The acquiring body should not

return the possession of the land in question, however, the High Court

has directed that the land owners be paid the compensation under the

provisions of the  Right to  Fair  Compensation and Transparency  in

Land Acquisition & Rehabilitation and Re­Settlement Act, 2013

(hereinafter referred to  as the ‘2013  Act’) and  compensation to  be

determined on the basis of the date of the order passed by the High

Court as the date of the acquisition notification, i.e., 22.12.2016.

3.3 Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, holding and declaring Sections 4

&  6 notifications  with respect to the land in question as bad  by

holding that the invocation of the urgency clause and the provisions of

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Section 17(1) and 17(4) of the Act were bad, the Union of India and

another – ITBP have preferred the present appeal.

4. Ms.  Madhavi Divan, learned Additional Solicitor General has

appeared on  behalf of the appellants and  Shri Ajit  Kumar  Sinha,

learned Senior Advocate has appeared on behalf of respondent nos. 1

& 2 herein – original writ petitioners.

4.1 Ms.  Madhavi Divan, learned Additional Solicitor General has

vehemently submitted that in the facts and circumstances of the case

and considering the purpose for  which the land in question  was

acquired, the High Court has materially erred in observing and

holding that there existed no facts before the State Government for

invoking the powers under Section 17(1) and Section 17(4) of the Act.

4.2 It is further submitted by Ms. Madhavi Divan, learned Additional

Solicitor General that there was no delay at all in invoking the urgency

clause and issuance of the notification under Section 4 of the Act by

the State Government invoking the urgency clause.

4.3 It is further submitted by Ms. Madhavi Divan, learned Additional

Solicitor General that the High Court has failed to appreciate that the

land  was urgently required by the appellants, due to increase in

Counter Insurgency Operations, Law and order duties of ITBP, VVIP

security duties and Disaster Management Operations, there was

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urgent  need to establish  Battalion  headquarter of ITBP  at  Kanpur

Nagar.   It is submitted that for establishing such Battalion

headquarter approximately 72 to 75 acres of land was required and

therefore it might have taken some time in identifying the land,

preparing the plan and thereafter issuing the notification under

Section 4 of the Act.  It is submitted that the High Court has held the

invocation of the urgency clause bad on the ground that there was

much time gap between the proposal by the ITBP and issuance of the

notification under Section 4 of the Act.   It is  submitted that while

holding so, the High Court has not properly appreciated the true and

correct facts, more particularly the time taken from the proposal till

the issuance of the notification under Section 4 of the Act.

4.4 It is further submitted by Ms. Madhavi Divan, learned Additional

Solicitor General that the High Court has failed to appreciate the fact

that between notifications under Sections 4 & 6 respectively, the time

gap was only three months, which clearly indicates that there was an

urgency  in the matter  requiring dispensing with the enquiry  under

Section 5A of the Act.   It is submitted that had the Section 5A

compliance not been dispensed with, it would not have been possible

to publish Section 6 notification within three months.

4.5 It is further submitted by Ms. Madhavi Divan, learned Additional

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Solicitor General that from the very beginning the land was required

urgently for the aforesaid public purpose, more particularly for

establishment of the Battalion headquarter of ITBP and in the facts

and circumstances of the case, there was no delay/inordinate delay in

issuance of the notification under Section 4 of the Act.  It is submitted

that therefore the finding recorded by the High Court that no facts

existed for invocation of the urgency clause cannot be sustained as the

same is contrary to the material on record.

4.6 It is further submitted by Ms. Madhavi Divan, learned Additional

Solicitor General that even the High Court has also wrongly observed

in the impugned judgment and order that so far no award has been

made by  the Special  Land Acquisition Officer  with reference to the

notification under challenge.  It is submitted that as such and in fact

the adjudgment of the compensation was pronounced after the

sanction of the District Magistrate on 27.12.2010 by the Land

Acquisition Officer.

4.7 Ms.  Madhavi Divan, learned Additional Solicitor General has

further submitted that in the facts and circumstances of the case, the

decisions relied upon by the learned counsel appearing on behalf of

respondent nos. 1 & 2, more particularly the decision of this Court in

the case of Radhy Shyam (supra) shall not be applicable to the facts of

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the case on hand, more particularly with respect to the public purpose

for which the land is acquired.

4.8 Making the above submissions and further submitting that on

the 95% of the land acquired, by now the development has already

taken place and public money to the tune of crores of rupees have

been spent, it is prayed to allow the present appeal.

5. The present appeal  is vehemently opposed by Shri Ajit  Kumar

Sinha, learned Senior Advocate on behalf of respondent nos. 1 & 2.

Taking us to various dates and events right from the date of proposal

by the ITBP till the notification under Section 6 of the Act was issued,

it is vehemently submitted by Shri Ajit Kumar Sinha, learned Senior

Advocate that in the facts and circumstances of the case, the High

Court has rightly observed and held that the State Government was

not justified in invoking the urgency clause and dispensing with the

enquiry under Section 5A of the Act.

5.1 It is further submitted by Shri Ajit Kumar Sinha, learned Senior

Advocate that in fact invoking the urgency clause was not explained

and/or  justified by the State Government and therefore considering

the material on record, the High Court has rightly observed that there

was no real and substantive urgency which could justify invoking the

urgency clause under Section 17(1) of the Act and excluding the

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application of Section 5A of the Act.

5.2 It is further submitted by Shri Ajit Kumar Sinha, learned Senior

Advocate that as held by this Court in catena of decisions that enquiry

under Section 5A of the Act is a valuable statutory right available to

the land owners and unless there are compelling circumstances

warranting invocation of the urgency clause under Section 17(1) of the

Act,  such statutory right cannot be taken away.   In support of  his

submission, learned Senior Advocate appearing on behalf of

respondent nos. 1 & 2 herein has heavily relied upon the decisions of

this Court in the cases of Radhy Shyam (supra); Prabhawati v. State of

Bihar, reported in (2014) 13 SCC 721; and Sahara India Commercial

Corporation Limited (supra).

5.3 It is further submitted by Shri Ajit Kumar Sinha, learned Senior

Advocate that as such in the present case and by passing the

impugned judgment and order, the High Court has tried to strike the

balance and instead of directing to return the land acquired, the High

Court has directed to pay the compensation as per the provisions of

the 2013 Act and the compensation to be determined on the basis of

the date of order as the date of the acquisition notification, i.e.,

22.12.2016.

5.4 It is further submitted by Shri Ajit Kumar Sinha, learned Senior

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Advocate that even till  date the land owners have not received any

compensation of the land acquired.   It is submitted therefore that

there is a non­compliance of Section 17(4) of the Act.

5.5 Making the above submissions, it is prayed to dismiss the

present appeal.

6. We have heard the learned counsel appearing on behalf of the

respective parties at length.

6.1 We have gone through and considered  in detail the  impugned

judgment and order passed by the High Court.   We have also

considered the chronological dates and events leading to the issuance

of the notification under Section 4 of the Act and thereafter issuance

of  the notification under Section 6 of  the Act  invoking the urgency

clause.  At the outset, it is required to be noted that by the impugned

judgment and order the High Court has held invocation of urgency

clause and invocation of Section 17 of the Act as bad by observing that

there were no  justifiable reasons to  invoke the urgency clause and

dispensing with the enquiry under Section 5A of the Act.   However,

considering the chronological list of dates and events and the object

and purpose for which the land was sought to be acquired, we are of

the opinion that the High Court has materially erred in holding that

invocation of the urgency clause was bad.  The High Court has failed

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to appreciate and consider the fact that there was a time gap of only

three months between the notification under Section 4 and notification

under Section 6 respectively of the Act.

6.2 Even there was not much delay in considering the request made

by the ITBP to acquire the land.   Right from the very beginning the

ITBP requested to acquire the land urgently as the land was urgently

required by the ITBP to establish Battalion headquarter due to

increase in Counter Insurgency Operations, Law and order duties of

ITBP and Disaster Management Operations.  It is required to be noted

that for establishing such Battalion headquarter a large chunk of land

approximately 72 to 75 acres of land was required.  Such a huge land

was required to be first identified at suitable places.   Therefore, some

time is bound to be consumed between the proposal and issuance of

the notification under Section 4 of the Act.  The said aspect has not at

all been considered by the High Court.   Therefore, merely that some

time had been  taken  in identifying the land and  in issuing  actual

Section 4 notification, the High Court is not justified in observing that

there was no urgency at all and/or there were no grounds to invoke

the urgency clause.  Therefore, in the facts and circumstances of the

case and considering the material on record, we are of the opinion that

the High Court has erred in observing and holding that invocation of

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the urgency clause was bad.   We are more than satisfied that there

was a real urgency and therefore the urgency clause and Section 17 of

the Act was rightly invoked dispensing with the enquiry under Section

5A of the Act.  Therefore, in the facts and circumstances of the case,

the decisions of this Court relied upon by the learned Senior Advocate

appearing on behalf of respondent nos. 1 & 2, referred to hereinabove,

shall not be applicable to the facts of the case on hand, more

particularly in the relied upon cases the acquisitions were either for

private parties and/or companies and in the present case the

acquisition was for establishing ITBP Battalion headquarter.

6.3 It is also required to be noted that on the land in question total

admeasuring 28.1398 hectares (19.7548 + 8.3850 hectares = 28.1398

hectares) there is a development on 90 to 95% of the land acquired

and 90 to 95% of the land has been put to use by the ITBP.  It is also

required to be noted that so far as respondent nos. 1 & 2 herein are

concerned, out of the total land acquired, they were the owners/tenure

holders of plot nos. 2348 area 1.138  hectares, 2353 area 1.2800

hectares and 2354 area 0.2970 hectare only.   As observed

hereinabove, the total land acquired was 28.1398 hectares and other

land owners have not questioned the acquisition.  Therefore also, the

High Court ought not to have set aside the notifications under

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Sections 4 & 6 respectively of the Act which were with respect to the

acquisition of large chunk  of land  admeasuring  28.1398  hectares,

which  was not under challenge by the other land owners except

respondent nos. 1 & 2 herein – original writ petitioners.

6.4 Now so far as the submission on behalf of the original  writ

petitioners that there is a non­compliance of Section 17(4) of the Act

as 80% of the estimated amount of compensation was not deposited is

concerned, at this stage, counter affidavit filed by the Tehsildar before

the High Court is required to be considered.  In the counter affidavit, it

has been specifically stated that after the notification under Section 4

of the Act  was issued, the ITBP has deposited 10% of estimated

compensation amounting to Rs.3026675.00 vide treasury challan

dated 17.06.2009, 70% of estimated compensation amounting to

Rs.23674225.00 vide treasury challan dated 05.01.2009 and rest of

20% of estimated compensation amounting to  Rs.6053350.00 vide

treasury challan dated 22.01.2010.  In the counter affidavit, it is also

stated that notice dated 16.03.2010 was issued to the tenure holders

to take 80% of the estimated amount of compensation but they did not

come  to take the compensation.  Therefore, it cannot  be said that

there is a non­compliance of Section 17(4) of the Act and the tenure

holders/land owners  were  not paid the 80%  estimated amount of

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compensation as required.

6.5 Considering the aforesaid  facts and circumstances of the case

and in the peculiar facts and circumstances of the case, we are of the

opinion that the High Court is not justified in setting aside the

notifications  under  Sections 4  & 6 respectively of the Act and/or

observing and holding that the invocation of Section 17 of the Act and

urgency clause was bad.

7. Now so far as submission on behalf of the original writ petitioners

that they have not  been paid any compensation  is  concerned,  it is

required to be noted and as observed hereinabove, in fact, ITBP had

deposited the estimated amount of compensation in the year

2009/2010 itself and the land  owners/tenure  holders  were served

with the notice to withdraw and/or take 80% of the estimated amount

of compensation   but they refused to take the compensation.

Therefore, thereafter it is not open for the original writ petitioners to

make the grievance that they have not been paid any compensation.

Still, it will be open to them to withdraw the amount of compensation.

At this stage, it is required to be noted that in the year 2010 itself,

final award directing adjudgment of the compensation to the tune of

Rs.63309176.41 inclusive of solatium was published before that writ

petition was filed and compensation was not accepted.

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8. In view of the above and for the reasons stated above, the present

appeal is allowed.   The impugned judgment and order passed by the

High Court is hereby quashed and set aside. Consequently, the writ

petition filed before the High Court by respondent no. 1 & 2 herein

stands dismissed.  There shall be no order as to costs.

……………………………………..J. [ARUN MISHRA]

……………………………………..J. [M.R. SHAH]

NEW DELHI; ………………………………………J. AUGUST 19, 2019. [B.R. GAVAI]     

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