Hamid Ali Khan (D) through Lrs. & Anr. vs State of U.P. & Ors.

mind to the relevant material before it and its action must not be malafide – Merely because the purpose of the acquisition is found to be a public purpose, the duty of the authority does not end – Authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual – Furthermore, the power u/s 17 (4) being discretionary, must be exercised with due care – If there is relevant material however meagre it may be and the authority has without being guided by extraneous considerations applied his mind and taken a decision, then the court would adopt a hands-off approach.

s. 17(4) – Special powers in case of urgency – Invocation of – Held: When a challenge is made to the invocation of power u/s.17(4) the writ applicant cannot succeed on bare and bald assertions – Fact specifically within the exclusive knowledge of the State must be laid before the court on the basis of the principle in s. 106 of the Evidence Act – Existence of the exceptional circumstances justifying invoking of s.17(4) must be established in the wake of a challenge – On an appreciation of the evidence made available by all the parties it is open to the court to conclude that no occasion arose for resorting to the power u/s.17 (4) which indeed must be read as an exception to the general rule that the acquisition of property is made after affording an opportunity the person adversely affected to demonstrate that the acquisition was unjustified.

Allowing the appeal, the Court

HELD: 1.1 The authority is required to form a subjective opinion. This does not mean that the opinion can be whimsical or capricious. There must be materials before the authority. The materials must be relevant. The authority must apply his mind to the material. This is apart from the requirement that action must not be malafide. Undoubtedly the purpose must be a public purpose. But merely because the purpose of the acquisition is found to be a public purpose, the duty of the authority does not end. He must be satisfied that there is real urgency such that the invaluable right vouchsafed to a person to ventilate his grievances against the acquisition is not unjustifiably extinguished. Section 5A of the Land Acquisition Act guarantees a right to the person interested in the property which was the only statutory safeguard to stave off of a compulsory acquisition of his property. The power under Section 17 (4) is discretionary. Being a discretion it must be exercised with due care. It is true that if there is relevant material however meagre it may be and the authority has without being guided by extraneous considerations applied his mind and taken a decision, then the court would adopt a hands-off approach. In the ultimate analysis as with any other decision a balancing of conflicting interests is inevitable. The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual. [Para 22][227-B-F]

1.2 It is true again that the decisions in this Court appear to convey conflicting signals. However, there is a certain element of consensus on fundamental principles. The dichotomy essentially has to be resolved by carefully attending to the facts of each case. As regards, the principles relating to the manner in which a challenge to a notification under Section 17(4) must be approached in the matter of discharging the burden of proof, when a challenge is made to the invocation of power under Section 17(4) the writ applicant cannot succeed on bare and bald assertions. The facts which are specifically within the exclusive knowledge of the State must be laid before the court on the basis of the principle in Section 106 of the Evidence Act. Existence of the exceptional circumstances justifying invoking of Section 17

(4) must be established in the wake of a challenge. The true concept unravelled by this Court in Gavate’s case is the total evidence theory. In other words, on an appreciation of the evidence made available by all the parties it is open to the court to conclude that no occasion arose for resorting to the power u/s

17 (4) which indeed must be read as an exception to the general rule that the acquisition of property is made after affording an opportunity the person adversely affected to demonstrate that the acquisition was unjustified. [Para 23][227-F-H; 228-A-C]

1.3 Perusal of the impugned notification under section 17(4) and even Section 6 declaration shows that the land in question is recited as being required for the public purpose of the U.P. & ORS.

Bulandshehar-Khurja Development Authority or for the Kalindi Kunj residential/ commercial (supplementary). It is further recited that as the Governor was convinced about the great necessity of the land and the provision of section 17 (1) of the Act being applicable and in view of the necessity, inquiry under section 5A was not applied on the basis that ‘possibility of delay may be abandoned’. It is further stated that land is required for Kalindi Kunj residential/commercial scheme. A perusal of the revised lay out plan inter alia would show that the scheme was a residential cum commercial scheme. It was to consist of park, community facilities such health, post office, social and cultural centre and educational centre. The land which was reserved for the residential area is shown as constituting 38.57% of the area of the scheme. The commercial part of the Scheme was to consist of 4.9% of the total area of the scheme. The scheme is not a pure residential scheme. Secondly, the only case which the respondents have further is that under a scheme 5% of the plots are reserved for the landless. Initially, the land in question, was not proposed to be acquired. The total land which was proposed to be acquired was fixed at 52 and odd hectares. [Para 33][233-D-G, H]

1.4 A perusal of the communication dated 29.3.2006 from the second respondent Authority reveals that according to it, survey nos. 880 and 893 were being used for keeping a cattle market and therefore the lands were not required. It is further found that in the survey 13 shops were constructed and the land in these survey were sold for residential house. Being contiguous with the scheme area, these lands were projected as required on preparing an amended proposal. However, in the communication dated 06.10.2006 issued by the third respondent he refers to requirement of clean environment and therefore a cattle market of the animals in the housing area may not be proper. The same position is again reiterated in communication dated 10.10.2000 as well. The appellants had given a representation on 08.12.2006 to the Chief Secretary praying that the property may not be taken for the residential/commercial scheme. Therein, it is inter alia stated that the cattle market is located at one corner of the acquired land of 52.361 hectares. The appellants state about their readiness to construct a separate boundary wall. It is stated to be their only source of income. The declaration under section 6 was issued only on the eve of expiry of one year from 11.4.2008. The urgency indicated in the file is to tide over the bar of issuance of declaration under section 6 beyond one year from 11.4.2008 the date on which notification under 4/17 was issued. There is no indication in the file about the urgency for issuing the declaration immediately after the notification under Section 4. In other words, the file does not reveal any urgency at all associated with the need to acquire the land immediately which constitutes the foundation for invoking the urgency clause. [Para 34-35][234-AF]

1.5 Notification was issued under section 17(4) in October 2004 regard to 52 and odd hectares of land. The Section 6 declaration is made only in October 2005. The survey numbers in question in this case according to the respondent is located in the middle. However, it is not acquired on the basis that the said land was being used as cattle market (see communication dated 29.3.2006). The appellants have a definite case that possession itself was taken despite the availability of power to take possession immediately, only on 6.1.2006. The proposal to take the further land was taken in March, 2006 if not earlier. The reason given for acquiring the land is alleged construction of shops by the appellants and the contiguity of the land covered by the land earlier acquired with the land in question. On the other hand, the third respondent refers further to the need for clean environment which is in contradiction to the communication dated 29.3.2006. [Para 36][234-G-H; 235-A-B]

1.6 The material which consists of the communications addressed to the second respondent and the communications by the third respondent is seen. Apart from the same, the usual certificates/forms indicating inter alia that there was no place of worship located in the scheme was no doubt available. But the point is only whether there was material for dispensing with the inquiry under Section 5A and even, more importantly, whether the authority applied its mind to it. Even the notification under section 17(4) came to be issued after more than two years of the proposal sent sometime in March, 2006 if not earlier. Declaration under section 6 came to be issued only on 9.4.2009, just two U.P. & ORS.

days prior to the first anniversary of the date of notification under section 4. More importantly, it is noticed what finally impelled Government to issue the notification, namely, the apprehension that if it is not issued within one year of the section 4 notification the acquisition would lapse. This had nothing to do with urgency which would have manifested in the section 6 declaration being issued much earlier. This must also be viewed in the background that though the Section 4(1)/(17) Notification was earlier issued in regard to 52.361 hectares on 08.10.2004, the declaration under Section 6 was issued only on 07.10.2005. [Para 38][235-C-G]

1.7 The statutory authority under section 5A of the Act is expected to give a fair hearing. It can stand between an uncalled for proposal to acquire property. Disputed questions of facts in regard to the property to acquire the property are to be considered by the same Authority. Yet another pertinent aspect is the fact that the subject matter of the second acquisition was 2 and odd hectares. It was apparently just the appellants, who had to be given a hearing. Having regard to the nature of the scheme, the delay with which section 6 declaration was issued, possession taken and the nature of the material on the basis of which the proposal was processed, the appellants are justified in contending that the notification under Section 17(4) dispensing with the inquiry under Section 5A was unjustified. [Para 39-40][235-G-H; 236-A-B]

1.8 This appeal arises from the order passed by the High Court in the year 2000. While issuing notice, this Court in the SLP stage ordered status quo as on 6.11.2009 be maintained. Thereafter, the leave was granted on 27.1.2012. The interim order was however directed to continue. It is after nearly 12 years that the case is finally being disposed of. In the meantime, the Land Acquisition Act was repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has taken its place. Therefore, there is no question of the matter being considered for an inquiry being held under section 5A. It is also noted that there is no denial of the allegation in the writ petition about the lie of the property, viz., it not being in the middle of the scheme area. [Para 41][236C-E]

1.9 The impugned judgment is set aside and the writ petition filed by the appellants is allowed and the impugned notifications and proceedings based on the same shall stand quashed. The property shall be returned back to the appellants. This will be without prejudice to the rights/powers available to the respondents under law. [Para 42][236-E]

Narayan Govind Gavate and Others v. State of

Maharashtra and Others (1977) 1 SCC 133 : [1977] 1 SCR 763 – relied on.

Om Prakash and Another v. State of U.P. and Others (1998) 6 SCC 1 : [1998] 3 SCR 643; Anand Singh and Another v. State of Uttar Pradesh and Others (2010) 11 SCC 242 : [2010] 9 SCR 133; Radhy Shyam (dead) through LRS. and Others v. State of Uttar Pradesh and Others (2011) 5 SCC 553 : [2011] 8 SCR 359; State of U.P. v. Smt. Pista Devi and Others (1986) 4 SCC 251 : [1986] 3 SCR 743; Chameli Singh and Others v. State of U.P. and Another (1996) 2 SCC 549 : [1995] 6 Suppl. SCR 827; Rajasthan Housing Board and Others v. Shri Kishan and Others (1993) 2 SCC 84 : [1993] 1 SCR 269; State OF Haryana v. Eros City Developers Private Limited and Others (2016) 12 SCC 265 : [2016] 1 SCR

242 – referred to.