Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others
The appeal was directed against order 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 District Gautam Budh Nagar through Greater NOIDA Industrial Development Authority (Development Authority) by invoking Section 17(1) and 17(4) of the Land Acquisition Act, 1894 (Act), as amended by Uttar Pradesh Act No.8 of 1974, was dismissed.
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 under Section 4(1) read with Section 17(1) and 17(4) of the Act.
Since the appellants’ land was also included in the 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 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 Government issued notification dated 19.11.2008 under Section 6 read with Section 9 of the Act.
The appellants challenged the acquisition of their land on several grounds including the following:
(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 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-A.
(iv) The acquisition of land is vitiated by arbitrariness, mala fides and violation of Article 14 of the Constitution inasmuch as lands of the Member of Legislative Assembly 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.
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.
The Supreme Court observed that the first issue which needs to be addressed was 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.
The Court also considered an ancillary issue as to whether the appellants had succeeded in prima facie proving that there was no justification to invoke the urgency clause and to dispense with the inquiry envisaged under Section 5-A.
The Supreme Court disapproved 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. The Court observed that a reading of the averments contained in paragraphs 11 and 16 and grounds A and F of the writ petition 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 nonsuiting them.
The Supreme Court then adverted 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. The Court observed 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 5A should be dispensed with, the High Court should not literally apply the abstract rules of burden of proof enshrined in the Evidence Act. The Court should bear in mind that the relevant records are always in the exclusive possession/domain of the authorities of the 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 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.
Commenting on the land acquisition, the Court held that the resultant effect of acquisitions is that the land owners, who were doing agricultural operations and other ancillary activities in rural areas, are deprived of the only source of their livelihood. Majority of them have no idea about their constitutional and legal rights, which could 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 challenge to the acquisition of land in a petition filed under Article 226 of the Constitution, the High Court should not adopt a pedantic approach 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 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 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 issue of invoking the urgency provision and excluding the application of Section 5-A is 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 the 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.
After a detailed analysis of the relevant statutory provisions and interpretation thereof by the Supreme Court in different cases, the following principles were enunciated:
(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 provided that such assertion is on account of public exigency and for public good. – Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal
Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp. (1) SCC 596.
(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 Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (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, 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 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
(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 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.
(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 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, 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 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.
(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 subsection (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 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 areas usually take few years.
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 alteram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters.
(ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.
On 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, the Court observed that 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:
(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 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 villages, the acquisition proceedings are under progress.
(d) The Development Authority urgently requires land for overall development, i.e. construction of roads, laying of sewerages, providing electricity, etc. in the area.
(e) The development scheme has been duly approved by the State Government but the work has been stalled due to nonacquisition 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 the notifications under Sections 4 and 17 and Section 6.
The Supreme Court held that the above noted factors did not furnish legally acceptable justification for the exercise of power by the State Government under Section 17(1) because the acquisition was primarily meant to cater private interest in the name of industrial development of the district. Even if planned industrial development of the district was 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 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/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 5-A could not, by any stretch of imagination, be portrayed as delay which would frustrate the purpose of acquisition.
The Supreme Court observed that the only possible conclusion which could be drawn from the above discussion was 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 exclude the application of Section 5-A which represent the statutory embodiment of the rule of audi alteram partem.
The Supreme Court also agreed with the appellants’ plea that the acquisition of their land was vitiated due to violation of the doctrine of equality enshrined in Article 14 of the Constitution. A reading of the survey report showed 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 had not been explained in the counter affidavit filed by the respondents.
The appeal was thus allowed. Respondent No.1 was further directed to pay cost of Rs. 5,00,000/- to the appellants for forcing unwarranted litigation on them. It was, 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) of the Act.