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

29Copy pinpoint29. In Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405, Krishna Iyer J. speaking for himself, Beg CJ and Bhagwati J. highlighted the importance of rule of hearing in the following words:

"43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has, many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy government, recognised from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adam - and of Kautilya's Arthasastra - the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo- American system. G

48. Once we understand the soul of the rule as fair play in action - and it is so - we must hold that it extends to both the fields. After all, administrative power in a

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 411 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, .pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one's bonnet. Its essence is good conscience in a given situation: nothing more - but nothing less. The "exceptions" to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea c that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, 0 making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation."

30Copy pinpoint30. In Maneka Gandhi, v. Union of India (1978) 1 SCC 248, Bhagwati J. speaking for himselfand Untwalia and Fazal Ali JJ. observed: E

"14 ............The audi alteram partem rule is intended to . inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law "lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation". Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the . situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned H

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

A save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or B doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The court must make every c effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances". The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it D may suffer situational modifications. The core of it must, however, remain, namely, t.11at the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise." E (emphasis supplied)

31Copy pinpoint31. In Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664 the majority of the three Judge Bench held that rule of audi alteram partem must be complied with even when the Government exercises power under Section 18AA of the Industries (Development & Regulation) Act, 1951 which empowers the Central Government to authorise taking over of the management of industrial undertaking. Sarkaria J. speaking for himself and Desai J. referred to the development of law relating to applicability of the rule of audi alteram partem to administrative actions, noticed the judgments in Ridge v. Baldwin (supra), A.K. Kraipak vs. Union of India (1969) 2 SCC 262, Mohinder Singh Gill v. Union of India (supra), Maneka Gandhi v. Union of India (supra) and State of Orissa v Dr. Bina H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 413 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

Pani Dei 1967 (2) SCR 625 and quashed the order passed A by the Central Government for taking over the management of the industrial undertaking of the appellant on the ground that opportunity of hearing has not been given to the owner of the undertaking and remanded the matter for fresh consideration and compliance of the rule of audi alteram partem. 8

32Copy pinpoint32. In Munshi Singh v. Union of India (1973) 2 SCC 337, the three Judge Bench of this Court emphasised the importance of Section 5A in the following words:

"7 ............. Sub-section (2) of Section 5-A makes it C obligatory on the Collector to give an objector an opportunity of being heard. After hearing all objections and making further inquiry he is to make a report to the appropriate Government containing his recommendation on the objections. The decision of the appropriate D Government on the ohjections is then final. The declaration under Section 6 has to be made after the appropriate Government is satisfied, on a consideration of the report, if any, made by the Collector under Section 5-A(2). The legislature has, therefore, made complete provisions for E the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5- F A: [See Section 17(4) of the Acquisition Act.]"

33Copy pinpoint33. In State of Punjab v. Gurdial Singh (1980) 2 SCC 471, Krishna Iyer J. emphasized the necessity of reasonableness and fairness in the State action of invoking the urgency provision in the following words: ' G

"16 ......... .it is fundamental that compulsory taking' of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing11lm before depriving him is both reasonable and pre-emptive of arbitrariness, H

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

A and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke B an enquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power."

34Copy pinpoint34. In Shyam Nandan Prasad v. State of Bihar (1993) 4 C SCC 255, this Court reiterated that the compliance of Section SA is mandatory and observed as under:

"10 ............ The decision of the Collector is supposedly final unless the appropriate Government chooses to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive conclusion that the proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument."

35Copy pinpoint35. The ratio of Munshi Singh v. Union of India (supra} has been reiterated and followed in Union of India v. Mukesh Hans (2004) 8 SCC 14, Hindustan Petroleum Corporation Limited v. Darius Shapur Chenai (2005) 7 SCC 627 and Anand Singh v. State of Uttar Pradesh (supra). H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 415 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

36Copy pinpoint36. The acquisition of land under Section 4 read with A Section 17(1) and/or 17(4) has generated substantial litigation in last 50 years. One of the earliest judgments on the subject is Nandeshwar Prasad v. The State of Uttar Pradesh (1964) 3 SCR 425. In that case, the acquisition of land for construction of tenements for the 4th phase of subsidized industrial housing B scheme sponsored by the State Government, as also for general improvement and street Scheme No.XX of Kanpur Development Board by issuing notification under Section 4 read with Section 17(1), (1-A) and 17(4) was challenged. The learned Single Judge and the Division Bench of the Allahabad c High Court negatived the appellants' challenge by observing that once Section 17 is invoked, there was no necessity to hold enquiry under Section SA. This Court set aside the order of the Division Bench of the High Court and held:

"It will be seen that Section 17(1) gives power to the D Government to direct the Collector, though no. award has been made under Section11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under Section E 17(1 ), taking possession and vesting which are provided in Section 16 after the award under Section 11 are accelerated and can take place fifteen days after the publication of the notice under Section 9. Then comes Section 17(4) which provides that in case of any land to F which the provisions of sub-section (1) are applicable, the Government may direct that the provisions of Section 5-A shall not apply and if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4(1 ). G It will be seen that it is not necessary even where the Government makes a direction under Section 17(1) that . it should also make a direction under Section 17(4). If the Government makes a direction only under Section 17(1) the procedure under Section 5-A would still have to be H

416 SUPREME COURT REPORTS · [2011] 8 S.C.R.

A followed before a notification under Section 6 is issued, though after that procedure has been followed and a notification under Section 6 is issued the Collector gets the power to take possession of the land after the notice under Section 9 without waiting for the award and on such B taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration under Section 17 (4) that it becomes unnecessary to take action under Section 5-A and make a report thereunder. It may be that c generally where an order is made under Section 17(1), an order under Section 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under Section 17(1) or Section 17(4) can only be passed with respect to waste or arable land and it cannot be passed D with respect to land which is not waste or arable and on which buildings stand. n

(emphasis supplied)

37Copy pinpoint37. In Raja Anand Brahma Shah v. State of Uttar Pradesh (1967) 1 SCR 373, the Constitution Bench considered the legality of the acquisition of 409.6 acres of land in village Markundi Ghurma, Pargana Agori for a public purpose i.e. for limestone quarry. The State Government F invoked Section 17(1) and 17(4), dispensed with requirement of hearing envisaged under Section 5-A and directed the Collector and District Magistrate, Mirzapur to take the possession of land. The Allahabad High Court dismissed the writ petition filed by the appellant by observing that the Court G cannot interfere w.ith the subjective satisfaction reached by the State Government on the issue of urgency. This Court agreed with the. High Court that the acquisition was for a public purpose but held that the expression of opinion by the State Government on the issue of invoking urgency provision can be challenged on the ground of non application of mind or mala tides. The H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 417 STATE OF U.P. & ORS, [G.S: SINGHVI, J.] Court relied upon the judgments in King Emperor v. Shibnath A Banerjee, Criminal Appeal No.110 of 1966 decided on July 27, 1966; Jaichand Lal Sethia v. State of West Bengal (1958) 1 WLR 546; Estate and Trust Agencies Ltd. v. Singapore '.' Improvement Trust (1914) 1 Ch 438; Ross Clunis v. Papadopoullos 44 1A 117 and R. v. Australian Stevedoring B Industry Board 39 1A 133 and observed:

"It is true that the opinion of the State Government which is a condition for the exercise of the power under Section 17 (4) of the Act, is subjective and a court cannot normally enquire whether there were sufficient grounds or justification of the opinion formed by the State Government under Section 17(4). The legal position has been explained · by the Judicial Committee in King Emperor v. Shibnath Banerjee and by this Court in a recent case - Jaichand · Lal Sethia v. State of West Bengal. But even though the power of the State Government has been formulated under Section 17(4) of the Act in subjective terms the expression of opinion of the State Government can be challenged as ultra vires in a court of law if it could be shown that the State Government never applied it mind to the matter ~ or that the action of the State Government is ma/a fide. If therefore in a case the land under acquisition is not actually waste or arable land but the State Government has formed the opinion that the provisions of sub-section (1) of Section 17 are applicable, the court may F legitimately draw an inference that the State Government did not honestly form that opinion or that in forming that opinion the State Government did not apply its mind to the relevant facts bearing on the question at issue. It follows therefore that the notification of the State G Government under Section 17 (4) of the Act directing that the provisions of Section 5~A shall not apply to the land is ultra vires."

(emphasis supplied) H

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

38Copy pinpoint38. In Narayan Govind Gavate v. State of Maharashtra (supra), this Court while approving the judgment of the Bombay High Court, which quashed the acquisition made under Section 4 read with Section 17(1) and 17(4) held as under:

B "38. Now, the purpose of Section 17(4) of the Act is, obviously, not merely to confine action under it to waste and arable land but also to situations in which an inquiry under Section 5-A will serve no useful purpose, or, for some overriding reason, it should be dispensed with. The mind of the officer or authority concerned has to be c applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5-A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under Section 5-A which has to be considered. D

40. In the case before us, the public purpose indicated is the development of an area for industrial and residential purposes. This, in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under Section 5-A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under Section 5-A of the Act to be completed F without any impediment whatsoever to the execution of the scheme. Therefore, the very statement of the public purpose for which the land was to be acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under Section 5-A of the Act. G

42. All schemes relating to development of industrial and residential areas must be urgent in the context of the country's need for increased production and more residential accommodation. Yet, the very nature of such H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 419 STATE OF U.P. & ORS. [G.S. SINGHVI, J.) schemes of development does not appear to demand A such emergent action as to eliminate summary enquiries under Section 5-A of the Act... ................... ."

(emphasis supplied}

39Copy pinpoint39. The next judgment which deserves to be mentioned is B Om Prakash v State of U.P. (supra). In 1976, NOIDA acquired large tracts of land in different villages of Ghaziabad District including village Chhalera Banger for planned industrial development of Ghaziabad. On being approached by NOIDA, the State Government invoked Section 17 (1) and 17(4) on the C ground that the land was urgently required. In 1987, more lands were acquired from the same village by issuing notification under Section 4. This time the land owners were given opportunity to file their objections and after considering the .same, the State Government issued notification under Section D 6 for the acquisition of 353 acres land. In 1988; NOIDA · submitted fresh proposal for the acquisition of land belonging to the appellants and others (total land measuring 294.26 acres). The State Government issued notification under Section 4 read with Section 17(1) and 17(4) of the Act clearly indicating E therein that Section 5-A was not applicable. The writ petitions filed by the land owners were dismissed by the High Court. After noticing the argufi11ents of the learned counsel for the parties, this Court framed the following questions. F "1. Whether the State authorities were justified in invoking Section 17(4) of the Act for dispensing with inquiry under Section 5-A of the Act.

2. In any case, whether the appellants' lands have to be treated as immune from acquisition proceedings on the G ground that they were having abadi thereon and were, therefore, governed by the policy decision of the State of U.P. not to acquire such lands.

3. Whether this Court should refuse to exercise its H

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

A discretionary jurisdiction under Article 136 of the Constitution of India in the facts and circumstances of the case.

4. What final orders." B While dealing with question No. 1, the Court noticed the scheme of Section 17, referred to the pleadings of the parties, and the judgments in State of U.P. v. Pista Devi (supra), Narayan Govind Gavate v. State of Maharashtra (supra), Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84, C State of Punjab v. Gurdial Singh (supra), Nandeshwar Prasad v. U.P. Govt. (supra), A.P. Sareen v. State of U.P. (1997) 9 SCC 359, Ghaziabad Development·Authority v. Jan Kalyan Samiti (1996) 2 SCC 365, Jai Narain v. Union of India (1996) 1 sec 9 and held that the decision to dispense with the inquiry D envisaged under Section 5-A was not based on any real and genuine subjective satisfaction. In the process, the Court noted that in 1989 the State Government had not resorted to Section 17 and the acquisition proceedings were finalized after holding inquiry under Section 5-A and observed: E "We were informed by Senior Counsel Shri Mohta for NOIDA that even though in the earlier acquisition of 1987 pursuant to Section 4 notification, inquiry under Section 5- A was not dispensed with, by the time Section 6 notification came to be issued, Section 17(1) was resorted to as urgency had developed at least by the end of December 1989. If that be so, it was expected that pursuant to the requisition of 14-12-1989 by NOIDA invoking urgency powers of the State Government, consequential notification under Section 4(1) would have seen the light of day at the earliest in connection with acquisition of the proposed 494.26 acres of land for the development of Sector 43 and other sectors. But curiously enough, nothing happened urgently and Section 4 notification which is impugned in the present case was issued on 5-1-1991. Thus despite the invocation of

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 421 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

urgency by NO/DA by its Jetter dated 14-12-1989, it appears that the State did not think the said proposal to be so urgent as to immediately respond and to issue notification under Section 4 read with Section 17 sub- section (4) till 5-1-1991. More than one year elapsed in the meantime. Why this delay took place and why the B State did not think it fit to urgently respond to the proposal of NO/DA, has remained a question mark for which there is no answer: furnished by the respondent-authorities in the present cases and nothing is brought on the record by them to explain the delay. It has, therefore, c necessarily to be presumed that despite the emergency powers of the State Government being invoked by NO/DA, the State authorities in their wisdom did not think the matter to be so urgent as to immediately respond and promptly issue Section 4 notification read with Section 0 17(4).

Even that apart, despite proposal to acquire this land was moved by NOIDA as early as on 14-6-1988, and even thereafter when the request was sent in this communication on 14-12-1989, the State authorities did not think the situation to be so urgent as to respond quickly and could wait for more than one year. When the appellants in the writ petitions before the High Court raised their grievances regarding dispensing with inquiry under Section 5-A being not backed up by relevant evidence and the subjective satisfaction of the State in this connection was brought in challenge, all that was stated by NOIDA in its counter in para 26 was to the effect that the contents of paras 25 and G 26 of the writ petition were denied and that the petitioners were not able to point out any lacunae in the proceedings under the Land Acquisition Act. The position was no better so far as the counter of the State authorities was concerned. In para 24 of the counter before the High Court, H

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

A all that was stated was that paras 25 and 26 of the writ petition were denied. When we turn to paras 25 and 26 of the writ petition, we find averments to the effect that the urgency of the acquisition was only for the purpose of depriving the petitioners of their rights to file objections B under Section 5-A and their right to hold the possession till they got compensation for which the respondents had issued notification under Section 17(1) as well as notification Section 17(4) of the Act. But so far as the process of the acquisition was concerned, the c respondents were taking their own time, which would be evident from the fact that the notification under Section 4 read with Section 17(4) was issued on 5-1-1991 but was published in the newspaper on 30-3-1991, whereas the declaration under Section 6 of the Act was made on 7-1- 1992 and that on the one hand, the respondents had deprived the petitioners of filing their objections under Section 5-A of the Act on the ground of urgency of acquisition, but on the other hand, they themselves had taken more than nine months in issuing the declaration under Section 6 of the said Act. This conduct of the respondents falsified their claim of urgency of acquisition.

The additional material which was produced before the F High Court was by way of Annexures CA-3, CA-4 and CA-

5. When we turn to these annexures, we find that AnnexureCA-3 is a letter dated 21-4-1990 written by the District Magistrate, Gt.,,ziabad, to the Joint Secretary, Industries, Government of Uttar Pradesh. It recites that on examination, it was found that the land was immediately G required in public interest so that the development work in the said land could be carried out smoothly. What was the nature of urgency is not mentioned in the said letter. Therefore, the position remains as vague as it was earlier. When we turn to Annexure CA-4 which is dated 12-6-1990, H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 423 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] we find that the District Magistrate, Ghaziabad wrote to the A Joint Secretary, Industries, State of U.P., that as to how many farmers were going to be affected by the proposed acquisition. It does not even whisper about the urgency of the situation which requires dispensing with Section 5-A inquiry. The last, Annexure CA-5 is the letter dated 14-12- B 1989 written by NOIDA to the Land Acquisition Officer proposing urgent acquisition of the lands in question. We have already made a reference to the said letter. It recites that if immediate action for acquisition of the aforesaid lands adjacent to Sector 43 for development of which the c acquisition was to be resorted to was not taken, then there was possibility of encroachment over the area cannot by any stretch of imagination be considered to be a germane ground for invoking urgency powers for dispensing with Section 5-A inquiry. Even if acquisition takes place urgently 0 by dispensing with inquiry under Section 5-A and the possession is taken urgently after Section 6 notification within 15 days of issuance of notice under Section 9 sub- section (1), even then there is no guarantee that the acquired land would not be encroached upon by unruly persons. It is a law and order problem which has nothing to do with the acquisition and urgency for taking possession. Even that apart, it is easy to visualize that if objectors are heard in connection with Section 5-A inquiry they would be the best person to protect their properties against encroachers. Consequently, the ground put forward by NOIDA in its written request dated 14-12-1989 for invoking urgency powers must be held to be totally irrelevant."

(emphasis supplied) G

40Copy pinpoint40. We may now notice some recent decisions. In Union of India vs. Mukesh Hans (supra), this Court interpreted Sections 5-A and 17 and observed:

"32. A careful perusal of this provision which is an H

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

A exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the B Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the c appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A inquiry. If that was not the intention of the legislature then the D latter part of sub-section (4) of Section 17 would not have been necessary and the legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. E But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5- A inquiry in spite of the existence of unforeseen emergency. F

33. An argument was sought to be advanced on behalf of the appellants that once the appropriate Government comes to the conclusion that there is an urgency or unforeseen emergency under Sections 17(1) and (2), the G dispensation with inquiry under Section 5-A becomes automatic and the same can be done by a composite order meaning thereby that there is no need for the appropriate Government to separately apply its mind for any further emergency for dispensatibn with an inquiry under Section 5-A. We are unable to agree with the above H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 425 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

argument because sub-section (4) of Section 17 itself A indicates that the "Government may direct that the provisions of Section 5-A shall not apply" (emphasis supplied) which makes it clear that not in every case where the appropriate· Government has come to the conclusion that there is urgency and under sub-section B (1) or unforeseen emergency under sub-section (2) of Section 17, the Government will ipso facto have to direct the dispensation of the inquiry."

(emphasis supplied) C

41Copy pinpoint41. In Union of India v.. Krishan Lal Arneja (2004) 8 SCC 453, this Court approved quashing of the acquisition proceedings by the High Court and observed:

"16. Section 17 confers extraordinary powers on the o authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be, by itself is not sufficient to take .aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period · within which the objections could be received from the landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is H

426 SUPREME COURT REPORTS (2011] 8 S.C.R.

A being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to B earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an c aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the D State administration.

(emphasis supplied)

42Copy pinpoint42. In Esso Fabs Private Limited vs. State of Haryana E (supra), the Court again dealt with the question whether the State was justified in invoking Section 17(1) and 17(4) and dispensing with the inquiry under Section 5-A and held:

"53. Section 17, no doubt, deals with special situations and exceptional circumstances covering cases of "urgency" F and "unforeseen emergency". In case of "urgency" falling under sub-section ( 1) of Section 17 or of "unforeseen emergency" covered by sub-section (2) of Section 17, special powers may be exercised by appropriate Government but as held by a three-Judge Bench decision G before more than four decades in Nandeshwar Prasad· and reiterated by a three-Judge Bench decision in Mukesh Hans, even in such cases, inquiry and hearing of· objections under Section 5-A cannot ipso facto be dispensed with unless a notification under sub-section (4) H of Section 17 of the Act is issued. The legislative scheme- - /_/-_:----

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 427 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] · is amply clear which merely enables the appropriate A Government to issue such notification under sub-section (4) of Section 17 of the Act dispensing with inquiry under Section 5-A if the Government intends to exercise the said power. The use of the expression "may" in sub- section (4) of Section 17 leaves no room of doubt that it is a discretionary power of the government to direct that the provisions of Section 5-A would not apply to such cases covered by sub-section (1) or (2) of Section 17 of the Act.

54. In our opinion, therefore, the contention of learned counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by sub- s_ection (1) or (2) of Section 17 of the Act, sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections under D Section 5-A of the Act. Acceptance of such contention or upholding of this argument will make sub-section (4) of Section 17 totally otiose, redundant and nugatory."

(emphasis supplied) E

43Copy pinpoint43. In Babu Ram v. State of Haryana (2009) 10 SCC 115, this Court reversed the judgment of the High Court and quashed the notification issued by the State Government under Section 4 read with Section 17(1) and 17(4) for the acquisition of land for construction of sewage treatment plant. After noticing the F judgments in State of Punjab v. Gurdial Singh (supra), Om Prakash v. State of U.P. (supra) and Union of India v. Krishan Lal Arneja (supra), the Court observed:

"As indicated hereinabove in the various cases cited by G Mr.Pradip Ghosh and, in particular, the decision in Krishan Lal Arneja case, in which reference has been made to the observations made by this Court in Om Prakash case, it has been emphasized that a right under Section 5-Ais not merely statutory but also has the flavour of fundamental H

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

A rights under Articles 14 and 19 of the Constitution. Such observations had been made in reference to an observation made in the earlier decision in Gurdial Singh case and keeping in mind the fact that right to property was no longer a fundamental right, an observation was made s that even if the right to property was no longer a fundamental right, the observations relating to Article 14 would continue to apply in full force with regard to Section 5-A of the LA Act."

44Copy pinpoint44. In Anand Singh v. State of U.P. (supra), the two-Judge C Bench considered the question whether the State Government was justified in invoking Section 17(4) for the acquisition of land for residential colony to be constructed by Gorakhpur Development Authority,. Gorakhpur. The Court noted that notifications under Section 4(1) read with Section 17(1) and D 17(4) were issued on November 23, 2003 and February 20, 2004 and declaration under Section 6 was issued on December 24, 2004, referred to 16 judicial precedents including those noticed hereinabove and held:

E "The exceptional and extraordinary power of doing away with an enquiry under Section 5-A in a case where possession of the land is required urgently or in an unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of the exceptional power in dispensing with enquiry under Section 5-A. Exceptional the power, the more circumspect the Government must be in its exercise. The Government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5-A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A.

H A repetition of the statutory phrase in the notification that

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 429 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] the State Government is satisfied that the land specified in the notification is urgently needed and the provision contained in Section 5-A shall not apply, though may initially raise a presumption in favour of the Government that prerequisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which the power has been exercised. Upon challenge being made to the use of power under Section 17, the Government must produce appropriate material before the Court that the opinion for c dispensing with the enquiry under Section 5-A has been formed by the Government after due application of mind on the material placed before it.

It is true that power conferred upon the Government under Section 17 is administrative and its opinion is entitled to D due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary. E As to in what circumstances the power of emergency can be invoked are specified in Section 17(2) but circumstances necessitating invocation of urgency under Section 17(1) are not stated in the provision itself. Generally speaking the development of an area (for F residential purposes) or a planned development of city, takes many years if not decades and, therefore, 'there is no reason why summary enquiry as contemplated under Section 5-A may not be held and objections of landowners I persons interested may not be considered. G In many cases, on general assumption likely delay in completion of enquiry under Section 5-A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realizing that an important and valuable right of the person interested in the land is being H

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

taken away anc:J with some effort enquiry could always be completed expeditiously. ·

The special provision has been made in Section 17 to eliminate enquiry under Section 5-A in deserving and cases of real urgency. The Government has to apply its B mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A. We have already noticed a few decisions of this Court viz. Narayan Govind Gavate and Pista Devi. In Om Prakash this Court held that the decision in Pista Devi must be c confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate. We agree.

D As regards the issue whether pre-notification and post- notification delay would render the invocation of urgency. power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate Government before the Court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5-A."

(emphasis supplied}

45Copy pinpoint45. In Civil Appeal No.2334 of 2011, Dev Sharan v. State of U.P., decided on March 7, 2011, the acquisition of land for construction of district jails was quashed on the ground that there was no valid ground or justification to exclude the application of Section 5-A of the Act and it was observed:

" ... Admittedly, the Land Acquisition Act, a pre- Constitutional legislation of colonial vintage is a drastic law, H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 431 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] being expropriatory in nature as it confers on the State a A power which affects person's property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property, other rights become illusory. This Court is B considering these questions, especially, in the context of some recent trends in land acquisition. This Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State. c The concept of public purpose cannot remain static for all time to come. The concept, even though sought to be defined under Section 3(f) of the Act, is not capable of any precise definition. The said definition, having suffered several amendments, has assumed the character of an inclusive one. It must be accepted that in construing public purpose, a broad and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people. Any attempt by the State to acquire land by promoting a pubic purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose. Even though the concept of public purpose was introduced by pre-Constitutional legislation, its application must be consistent with the constitutional ethos and especially the chapter under Fundamental Rights and also the Directive Principles.

In construing the concept of public purpose, the mandate of Article 13 of the Constitution that any pre-constitutional law cannot in any way take away or abridge rights conferred under Part-Ill must be kept in mind. By judicial interpretation the contents of these Part Ill rights are constantly expanded. The meaning of public purpose in H

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A acquisition of land must be judged on the touchstone of this expanded view of Part-Ill rights. The open-ended nature of our Constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio-economic reality in this B country.

Therefore, the concept of public purpose on this broad horizon must also be read into the provisions of emergency power under Section 17 with the consequential dispensation of right of hearing under Section 5A of the c said Act. The Courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues D of acquisition, the Courts, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice. While examining these questions of public importance, the Courts especially the Higher Courts, E cannot afford to act as mere umpires. "

46Copy pinpoint46. To be fair to the respondents, we may also notice the judgments in which the decision of the State to invoke Section 17(1) and/or 17(4) has been upheld. In State of U.P. v. Pista F Devi (supra), this Court examined the justification of invoking Section 17(1) and 17(4) of the Act for the acquisition of over 662 Bighas land situated in village Mukarrabpur, District Meerut for providing housing accommodation. The two-Judge Bench distinguished the three-Judge Bench judgment in Narayan Govind Gavate v. State of Maharashtra (supra), by observing G that after that decision, population of India had gone up by hundreds of millions and it was no longer possible for the Court to take the view that the schemes of development of residential areas do not appear to demand such emergent action as to eliminate summary inquiries under Section 5-A of the Act. H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 433 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

47Copy pinpoint47. In Rajasthan Housing Board v. Shri Kishan (supra), A this Court set aside the judgment of the majority of Full Bench · 1 ·

of the High Court, which had quashed the acquisition of2570 bighas land by the State Government by invoking Sections 17(1) and 17(4) of the Act for the benefit of appellant Rajasthan Housing Board and observed: B

"The material placed before the Court disclosed that the Government found, on due verification, that there was an acute scarcity of land and there was heavy pressure for construction of houses for weaker sections and middle C income group people; that the Housing Board had obtained a loan of Rs 16 crores under a time-bound programme to construct and utilise the said amount by March 31, 1983; that in the circumstances the Government was satisfied that unless possession was taken . immediately, and the Housing Board permitted to proceed 0 with the construction, the Board will not be able to adhere to the time-bound programme. In addition to the said fact, the Division Bench referred to certain other material also upon which the Government had formed the said satisfaction viz., that in view of the time-bound programme stipulated by the lender, .HUDCO, the Board had already appointed a large number of engineers and other subordinate staff for carrying out the said work and that holding an inquiry under Section 5-A would have resulted in uncalled for delay endangering the entire scheme and time-schedule of the Housing Board. If must be remembered that the satisfaction under Section 17(4) is a subjective one and that so long as there is material upon which the Government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority. This is the principle affirmed by decisions of this Court not under Section 17(4) but also generally with respect to subjective satisfaction." H

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

48Copy pinpoint48. In Chameli Singh v. State of U.P. (supra), the three- Judge Bench upheld the acquisition of land under Sections 17 (1A) and 17(4) by observing that the problem of providing houses to the dalits, tribes and poor needed emergency measures and so long as the problem is not solved and the need of that segment of the society is not fulfilled, the urgency continues to subsist.

49Copy pinpoint49. In First Land Acquisition Collector v. Nirodhi Prakash Gangoli (2002) 4 SCC 160, the Court upheld the acquisition of land for Calcutta Medical College under Section 17(1) and 17(4) and observed:

"By no stretch of imagination, exercise of power for acquisition can be held to be mala fide, so long as the purpose of acquisition continues and as has already been stated, there existed emergency to acquire the premises in question. The premises which were under occupation of the students of National Medical College, Calcutta, were obviously badly needed for the College and the appropriate authority having failed in their attempt earlier twice, the orders having been quashed by the High Court, had taken the third attempt of issuing notification under Sections 4(1) and 17(4) of the Act, such acquisition cannot be held to be mala fide and, therefore, the conclusion of the Division Bench in the impugned judgment that the acquisition is mala fide, must be set aside and we accordingly set aside the same."

50Copy pinpoint50. In Tika Ram v. State of Uttar Pradesh (2009) 10 SCC 689, the two-Judge Bench mainly considered the question$ relating to constitutional validity of the Uttar Pradesh Act nos. G 8of1974 and 5of1991 by which amendments were made in Section 17 of the Act. An ancillary question considered by the Court was whether the State Government was justified in invoking the urgency provision. The Bench referred to some of the precedents on the subject and refused to quash the H acquisition by observing that the acquired land has already

SRI RADHY SHYAM (0) THROUGH LRS. & ORS. v. 435 STATE QF U.P. & ORS. [G.S. SINGHVI, J.] been utilized for construction of houses by third parties.

51Copy pinpoint51. In Nand ~ishore Gupta v. State of Uttar Prade$h (2010) 10 sec 282, the acquisition of land for construction of Yamuna Expressway was upheld and challenge to the decision of the· State Government to dispense with the inquiry was negatived by making the following observations:

"We have deliberately quoted the above part of the High Court judgment only to show the meticulous care taken by the High Court in examining as to whether there was material before the State Government to dispense with the enquiry under Section 5-A of the Act. We are completely convinced that there was necessity in this Project considering the various reasons like enormousness of the Project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose, and the fact that the Project had lingered already from· 2001 till 2008. We do not see any reason why we should take a different view than what is taken by the High Court." E

52Copy pinpoint52. What is important to be noted is that in none of the aforementioned judgments, the Court was called upon to examine the legality and/or justification of the exercise of power under Section 17(1) and/or 17(4) for the acquisition of land for residential, commercial or industrial purpose. In State of U.P. v. Pista Devi (supra), Rajasthan Housing Board v. Shri Kishan F (supra) and Chameli Singh v. State of U.P. (supra), the invoking of urgency provision contained in Section 17(1) and exclusion of Section 5-A was approved by the Court keeping in view the acute problem of housing, which was perceived as a national problem and for the solution of which national housing G policy was framed and ·the imperative of providing cheaper s~elter to dalits,. tribals and other disadvantaged sections of the society. In First Land Acquisition Collector v. Nirodhi Prakash Gangoli (supra), the exercise of power under Section 17 was found to be justified because the land was already in the H

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

A possession of the medical college and the earlier exercise undertaken by the State for the acquisition of land got frustrated due to intervention of the Court. The factor, which influenced this Court to approve the judgment of the High Court in Tika Ram v. State of Uttar Pradesh (supra) was that the acquired land B had already been utilized for construction of houses by third parties to whom the plots had been allotted and they were not parties to the litigation. In Nand Kishore Gupta v. State of U. P. (supra), the acquisition was upheld because the land was urgently needed for construction of Yamuna Expressway and c by the time the matter was decided by this Court, huge amount had been spent on the project. As against this, the exercise of power under Section 17(1) and/or 17(4) for the acquisition of land for residential, industrial and commercial purposes, construction of sewage treatment plant and district jails was held 0 to be legally impermissible in Raja Anand Brahma Shah v. State of Uttar Pradesh (supra), Narayan Govind Gavate v. State of Maharashtra (supra), Om Prakash v. State of U.P. (supra), Union of India v. Krishan Lal Ameja (supra), Esso Fabs Private Limited v. State of Haryana (supra), Babu Ram E v. State of Haryana (supra) and Anand Singh v. State of Uttar Pradesh (supra).

53Copy pinpoint53. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out: F (i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent G provided that such assertion is on account of public exigency and for public good. - Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., Al R (1954) SC 119, Chiranjit Lal Chowdhuri v. Union offndia AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat H

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 437 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

(1995) Supp. (1) sec 596. A (ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex 8 Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Bil/imoria {2003) 7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011.

(iii) Though, in exercise of the power of eminent domain, C the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the D Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter. E

(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the.urgency provisions F because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons. G

(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private -- property without complying with the mandate of Section 5- A. These provisions can be invoked only when the purpose H

438 SUPREME COURT REPORTS (2011] 8 S.C.R.

A of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, B frustrate the public purpose for which land is proposed to be acquired.

(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can c be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records. D (vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5"A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).

(viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of G Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional are·as usually take few years.

,. SRI RADHY SHYAM (D) THROUGH LRS. & ORS.' v. 439 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi a/teram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters. B (ix) If land is acquired f9r the benefit of private persons, the Court should view the invoking of Section 17(1) and/ or 17(4) with suspicion I and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition. c

54Copy pinpoint54. The stage is now set for consideration of the issue whether the State Government was justified in invoking the urgency provision contained in Section 17(1) and excluding the application of Section 5-A for.the acquisition of land for planned industrial development of District Gautam Budh Nagar. A D recapitulation of the facts ·shows that upon recefpt of proposal from the Development Authority, the State Government issued directions to the concerned authorities to take action for the acquisition of land in different villages including village Makora. The comments/certificate signed by three officers, which was submitted in the context of Government Order dated 21.12.2006 was accompanied by several documents including proposal for the acquisition of land, preliminary inquiry report submitted by the Amin, Land Acquisition, copies of khasra khatauni and lay out plan, 10 per cent of the estimated compensation and a host of other documents. In the note dated nil jointly signed by Deputy Chief Executive Officer, Greater Noida, Collector, Gautam Budh Nagar and four other officers/ officials, the following factors were cited in justification of invoking the urgency provisions: G (a) The area was notified under Uttar Pradesh Industrial Areas Development Act, 1976 for planned industrial development.

(b) If there is any delay in the acquisition of land then H

440 SUPREME COURT REPORTS (2011] 8 S.C.R.

A · the same is likely to be encroached and that will adversely affect the concept of planned industrial development of the district.

(c) Large tracts of .land of the nearby villages have already been acquired and in respect of some B villages, the acquisition proceedings are under progress.

(d) The Development Authority urgently requires land for overall development, i.e. construction of roads, c laying of sewerages, providing electricity, etc. in the area.

(e) The development scheme has been duly approved by . the State Government r but the work has been stalled due to non-acquisition of land of village Makora.

(f) Numerous reputed and leading industrial units of the country want to invest in the State of Uttar Pradesh and, therefore, it is extremely urgent and necessary that land is acquired immediately.

(g) If land is not made available to the incoming leading and reputed industrial concerns of the country, then they will definitely establish their units in other States and if this happens, then it will adversely affect employment opportunities in the State and will also go against the investment policy of the Government.

(h) If written/oral objections are invited from the farmers and are scrutinized, then it will take unprecedented long time and disposal thereof will hamper planned development of the area.

(i) As per the provisions of the Act, there shall be at least one year's time gap between publication of

SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 441 STATE OF U.P. & ORS. [G.S. SINGHVI, J.] the notifications under Sections 4 and 17 and A Section 6.

55Copy pinpoint55. In our view, the above noted factors do not furnish legally acceptable justification for the exercise of power by the State Government under Section 17(1) because the acquisition 8 is primarily meant to cater private interest in the name of industrial development of the district. It is neither the pleaded case of the respondents nor any evidence has been produced before the Court to show that the State Government and/or agencies/instrumentalities of the State are intending to establish industrial units on the acquired land either by itself or through its agencies/instrumentalities. The respondents have justified the invoking of urgency provisions by making assertions, which are usually made in such cases by the executive authorities i.e. the inflow of funds in the State in the form of investment by private entrepreneurs and availability of larger employment opportunities to the people of the area. However; we do not find any plausible reason to accept this tailor-made justification for approving the impugned action which has resulted in depriving the appellants' of their constitutional right to property. Even if planned industrial development of the district is treated as public purpose within the meaning of Section 4, there was no urgency which could justify the exercise of power by the State Government under Section 17(1) and 17(4). The objective of industrial development of an area cannot be achieved by pressing some buttons on computer screen. It needs lot of deliberations and planning keeping in view various scientific and technical parameters and environmental concerns. The private entrepreneurs, who are desirous of making investment in the State, take their own time in setting up the industrial units. Usually, the State Government and its agencies/ G instrumentalities would give them two to three years' to put up their factories, establishments etc. Therefore, time required for ensuring compliance of the provisions contained in Section S- A cannot, by any stretch of imagination, be portrayed as delay which will frustrate the purpose of acquis.ition. In this context, it H

442 SUPREME COURT REPORTS (2011] 8 S.C.R.

A is apposite to note that the time limit for filing objection under Section 5-A (1) is only 30 days from the date of publication of the notification under Section 4(1 ). Of course, in terms of sub- section (2), the Collector is required to give opportunity of hearing to the objector and submit report to the Government B after making such further inquiry, as he thinks necessary. This procedure is likely to consume some time, but as has been well . said, "Principles of natural justice are to some minds burdensome but this price-a small price indeed-has to be paid if we desire a society governed by the rule of law." c 56. In this case, the Development Authority sent proposal some time in 2006. The authorities up to the level of the Commissioner completed the exercise of survey and preparation of documents by the end of December, 2006 but it took one year and almost three months to the State D Government to issue notification under Section 4 read with Section 17(1) and 17(4). If this much time was consumed between the receipt of proposal for the acquisition of land and issue of notification, it is not possible to accept the argument that four to five weeks within which the objections could be filed under sub-section (1) of Section 5-A and the time spent by the Collector in making inquiry under sub-section (2) of Section 5- A would have defeated the object of acquisition.

57Copy pinpoint57. The apprehension of the respondents that delay in the acquisition of land will lead to enormous encroachment is totally unfounded. It is beyond the comprehension of any person of ordinary prudence to think that the land owners would encroach their own land with a view to frustrate the concept of planned industrial development of the district.

58Copy pinpoint58. The perception of the respondents that there should be atleast one year's time gap between the issue of notifications under Sections 4 and 6 is clearly misconceived. The time limit of one year specified in clause (ii)) of the proviso to Section 6(1) is the outer limit for issue of declaration. This H necessarily means that the State Government can complete the

'SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 443 STATE OF U.P. & ORS. [G.S. SINGHVI, J.]

exercise under Sections 5-A and 6 in a shorter period. A

59Copy pinpoint59. The only possible conclusion which can be drawn from the above discussion is that there was no real and substantive urgency which could justify invoking of the urgency provision under Section 17(1) and in any case, there was no warrant to 8 exclude the application of Section 5-A which, as mentioned above, represent the statutory embodiment of the rule of audi alteram partem.

60Copy pinpoint60. We also find merit in the appellants' plea that the acquisition of their land is vitiated due to violation of the doctrine of equality enshrined ih Article 14 of the Constitution. A reading of the survey report shows that the committee constituted by the State Government had recommended release of land measuring 18.9725 hectares. Many parcels of land were released from acquisition because the land owners had already raised constructions and were using the same as dwelling units; A large chunk of land measuring 4.3840 hectares was not acquired apparently because the same belong to an ex- member of the legislative assembly. The appellants had also raised constructions on their land and were using the same for residential and agricultural purposes. Why their land was not left out from acquisition has not been explained in the counter affidavit filed by the respondents. The High Court should have treated this as sufficient for recording a finding that the respondents had adopted the policy of pick and choose in acquiring some parcels of land and this amounted to violation of Article 14 of the Constitution. Indeed it has not been pleaded by the respondents that the appellants cannot invoke the doctrine of ~quality because the other parcels of land were illegally left out from acquisition. G

61Copy pinpoint61. The argument of the learned senior counsel for the respondents that the Court may not annul the impugned acquisition because land of other villages had already been , acquired and other land owners of village Makara have not come forward to challenge the acquisition of their land cannot H

444 SUPREME COURT REPORTs [2011) 8 S.C.R.

A be entertained and the Court cannot refuse to protect the legal and constitutional rights of the appellants merely because the others have not come forward to challenge the illegitimate exercise of power by the State Government. It is quite possible that others may have, due to sheer poverty, ignorance and similar handicaps not been able to avail legal remedies for protection of their rights, but that cannot be made basis to deny what is due to the appellants.

62Copy pinpoint62. In the result, the appeal is allowed. The impugned order is set aside and the writ petition filed by the appellants is allowed. Respondent No.1 is directed to pay cost of Rs. 5,00,000/- to the appe.llants for forcing unwarranted litigation on them. It is, however, made clear that the respondents shall be free to proceed from the stage of Section 4 notification and take appropriate action after complying with Section 5-A(1) and (2) D of the Act. It is needless to say if the appellants feel aggrieved by the fresh exercise undertaken by the State Government then they shall be free to avail appropriate legal remedy.

B.B.B. Appeal allowed.