SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. STATE OF U.P. & ORS.

The Judgment of the Court was delivered by G.S. SINGHVI, J. 1. Leave granted. H

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2Copy pinpoint2. 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 Distriet Gautam Budh Nagar through Greater f'.-IOIDA Industrial B 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.

3Copy pinpoint3. 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 undar Section 4(1) D 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." H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 379 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

4Copy pinpoint4. Since the appellants' land was also included in the A 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 District Magistrate and the Special Officer, Land Acquisition, Gautam B 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 c Government issued notification dated 19.¹¹.2008 under Section 6 read with Section 9 of the Act.

5Copy pinpoint5. The appellants challenged the acquisition of their land on several grounds including the following: D (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 E 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- F A. (iv) The acquisition of land is vitiated by arbitrariness, mala tides and violation of Article 14 of the Constitution inasmuch as lands of the Member of Legislative Assembly G and other influential persons were 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. H

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6Copy pinpoint6. 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 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 c 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 D 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.

E 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 · application of mind did not considered the survey report of the abadi of the vi/lage 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 H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 381 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

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. C

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 D the land of the village Makauca is reserved for "residentiar of which the respondent No. 2invoked 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, 21and300A of the constitution. The such illegal act on the parl of the respondents show ma/a 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. G 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. H

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A 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 B 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." c (emphasis supplied)

7Copy pinpoint7. 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: G "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, I 'H as per the master plan-2021 th_e land of the village

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 383 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] 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- c 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 D 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. E 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 F to produce the original record in this regard also does not arise."

8Copy pinpoint8. 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 G 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 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 H

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A 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, s the High Court relied upon the judgment of this Court in Anand Buttons Limited v. State of Haryana (2005) 9 SCC 164.

9Copy pinpoint9. 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:- E (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 urgently required by the Development Authority for planned Industrial F 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 G 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. H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 385 STATE OF U.P. & ORS. [G.S. SINGHVI, J.)

(iii) That the acquired land was required for overall A 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. B (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 C 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 D 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.

10Copy pinpoint10. 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. G

11Copy pinpoint11. 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 H

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A 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 s 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 c Nagar and four other officers/officials. The next document has been described as comments/certificate on the issues raised in Government Order No.5261177-4-06-251 N/06 dated 21.12.2006 with regard to proposal for acquisition of 205.0288 hectares lands in village Makora. 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 F 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.

12Copy pinpoint12. 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 H was no valid ground to invoke the urgency clause contained in

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 387 STATE OF U.P. & ORS. [G.S~ SINGHVI, J.] Section 17(1) and to dispense with the application of Section A 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 premise that the affidavit filed in support of the writ petition was laconic. Learned counsel further argued that. the purpose for which land was B ·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 c 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 sec 377. Another argument of the learned counsel is that the High Court misdirected itself in.summarily dismissing 0 the writ petition ignoring the substantive plea of discrimination raised by the appellants.

13Copy pinpoint13. 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 affid~vit. Shri Dwivedi argued that ttie 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 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 H

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A 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 B 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.

14Copy pinpoint14. 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 r:io justification to invoke the urgency clause and to dispense with the inquiry envisaged under Section 5-A.

· 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.

16Copy pinpoint16. The history of land acquisition legislations shows that

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 389 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

in Eighteenth Century, Bengal Regulation I of 1824, Act I of A 1850, Act VI of 1857, Act XXll of 1863, Act X of 1870, Bombay Act No. XXVlll 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 arid other immovable properties for roads, canals, and other public purposes by B paying the amount to be determined by the arbitrators. In 1870, the Land Acquisition Act was 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 C 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 o 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- E 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, that any land is needed H

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A 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."

17Copy pinpoint17. The Act, which was enacted more than 116 years ago 8 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. E

18Copy pinpoint18. 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. 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 H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 391 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] challenge to the acquisition of land in a petition filed urider A 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 B 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 c by the respondents and production of the relevant records and carefully scrutinize the same before pronouncing upon legality of the impugned notification/action because a negative result without examining the relevant records to find out whether the competent authority had formed a bona fide opinion on the 0 issue of invoking the urgency provision and excluding the application of Section 5-A ls 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 (19~) 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 H

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A 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 B approach. This is part of the dynamics of 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 c 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."

19Copy pinpoint19. 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 SA 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 presen.t skillfully drafted petition for enforcement of his legal and/or constitutional rights. The Court H should also bear in mind that the relevant records are always

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 393 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] in the exclusive possession/domain of the authorities of the A 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 B 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.

20Copy pinpoint20. In Narayan Govind Gavate v. State of Maharashtra C (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.

"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 H

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A 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 B 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 c 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, D 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. E 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 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 H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 395 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] circumstances which caused urgency in the taking of A 1 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 0 sought to be made out here. Indeed, the apparent · simplicity of a question relating to. presumptions and burdens ofproof, which have to be always viewed together · is often deceptive. Over simplification of such questions leads to erroneous statements and misapplications of the E 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: F

"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 G 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 H

396 SUPREME COURT REPORTS [2011) 8 S.C.R.

A 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 B 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. c .. . 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, D 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.

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

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 397 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] 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. B

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. n .

The Court finally held as under: F

" .................. 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 G under Section5A of the Act. The recitals in the notifications, on the other hand, indicate that elimination of the enquiry under Section SA 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 H

398 SUPREME COURT REPORTS [2011) 8 S.C.R.

A the need to dispense with the enquiry under Section 5A of the Act. It is certainly a case 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 B 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 c 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} F

21Copy pinpoint21. 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.

22Copy pinpoint22. 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 planned industrial development of the district. Sections 4, 5-A (as amended}, 6 and 17 of the Act which have bearing on this question rea_d as under:

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 399 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] "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, - D 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;

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 H

400 SUPREME COURT REPORTS [2011] 8 S.C.R.

A thereof} without previously giving such occupier at least seven days' notice in writing of his intention to do so.

SA. 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 8 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.

c (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. G - (1) Subject to the provisions of Part VII of this Act, wlfen 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 °''a Secretary to such Government or H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 401 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] A of some. officer duly authorized to 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 SA, !3 sub-section (2):

Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1), - c (i) 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 G 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 H Gazette, and in two daily newspapers circulating in the

402 SUPREME COURT REPORTS [2011) 8 S.C.R.

A · 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 B public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration 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 c 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 H

SRI RADHY SHYAM (0) THROUGH LRS. & ORS. v. 403 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] 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 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. D (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 E 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 compe11sation for the land under the provisions herein contained. F

(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 G 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; sut>..:section H

404 SUPREME COURT REPORTS [2011] 8 S.C.R.

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. B (38) 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 c 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.

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

· SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 405 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] with, or at any time after, the publication in the Official A Gazett~ of the notification under section 4, sub-section (1 )."

23Copy pinpoint23. 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 B 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 C Section 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 thel notification. Section 4(2) lays down that after publication of the notification under Section 4(1 ), D any offiter authorised by the Government in this behalf, his servants orworkmen 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 ot'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 SA, 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 H

406 SUPREME COURT REPORTS [2011) 8 S.C.R.

A land or of any land in the locality to the Collector. The Collector is required to give the objector 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 s 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 c · 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 I 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 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 G 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

24Copy pinpoint24. Before adverting to the precedents in which Section SA 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 G (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 H

408 SUPREME COURT REPORTS [2011] 8 S.C.R.

A whereof I commanded thee that thou shouldest not eat".· ·

Therein the District Board had brought down the house of the plaintiffs (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 statute the court recognized the right of hearing before the plaintiffs 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'. D

25Copy pinpoint25. 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." G

26Copy pinpoint26. 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 19.83 2 H AC 237, Lord Diplock said that the right of a man to be given

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 409 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] . a fair opportunity of hearing, what is alleged against him and A of 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: B

"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." E

27Copy pinpoint27. 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.

28Copy pinpoint28. 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 H

410 SUPREME COURT REPORTS [2011] 8 S.C.R.

A 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 B 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."