Bhopal Singh vs Union of India (UOI) and Others

T.S. Thakur, J.—In terms of a notification dated 20th September, 1988 issued u/s 4 and 17 of the Land Acquisition Act, 1894 (for short ''the Act'') a parcel of land measuring 4 bighas and 14 bids was with super structures on the same situate in Khasra No. 332/2 min of Village Pul Pehlad, Tehsil Mehrauli was notified for acquisition by the Delhi Administration. Since the notification dispensed with an enquiry u/s 5A of the Act, a declaration u/s 6 was issued shortly thereafter on 7th October, 1988. The petitioner who owns three bighas and 12 bids was out of the aforementioned land has assailed the validity of the above notification as also the declaration issued in pursuance thereof.

The petitioner''s challenge is two-fold. In the first place, the petitioner contends that there was no urgency for acquisition of the land by invoking the provisions of Section 17(1) of the Act. It is argued that the acquisition of a small extent of four bighas and four bids was could involve no possible urgency nor could any development work be held up on account of such a small piece of land. Alternatively, it is contended that although the notification issued by the respondents dispensed with the holding of an enquiry u/s 5-A of the Act, the competent authority, namely, the Lt. Governor had neither applied his mind to the question of dispensing with the enquiry nor issued any direction to that effect. The notification to the extent it purported to dispense with an enquiry u/s 5A was, Therefore, unsupported by any order on the file which rendered the same illegal.

Section 17 of the Act confers special powers upon the appropriate Government in cases of urgency. It, inter alia, provides that in cases of urgency whenever the Appropriate Government so directs, the Collector may take possession of any land needed for a public purpose, on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1) of the Act, even though no award has been made by him. Such land would thereupon vest absolutely in the Government, free from all encumbrances.

The Government has, in the instant case, invoked special powers vested in it u/s 17(1) on being satisfied that the land in question is urgently required for a valid public purpose, namely, Planned Development of Delhi. Although the existence of the alleged urgency is itself under challenge in the present proceedings, it may not be necessary for this Court to examine that aspect having regard to the fact that there is a more formidable challenge to the proceedings on the alternative arguments urged before us. The contention, precisely speaking, is that the mere existence of an urgency within the meaning of Section 17(1) of the Act, does not ipso facto imply that an inquiry in terms of Section 5A of the Act should be dispensed with. Since the owners have a valuable right to object to the proposed acquisition in an inquiry envisaged u/s 5-A, any order that purports to dispense with the conduct of such an inquiry can be lawfully made only after the competent authority has applied its mind to the need for dispensing with such an inquiry. There is, according to the petitioners, no order by the competent authority directing that inquiry u/s 5-A should be dispensed with, leave alone an order passed after due and proper application of mind, which, according to the petitioner, renders the impugned notification bad in law.

The legal position as regards the need for making a proper order dispensing with an inquiry u/s 5-A is no longer rest integra, having been authoritatively settled by the Supreme Court in Union of India (UOI) and Others Vs. Mukesh Hans etc., . That was also a case where the question that fell for consideration was whether mere existence of an urgency or unforeseen emergency within the contemplation of Section 17(1) would by itself be sufficient to result in the dispensation of an inquiry u/s 5-A. Answering the question in the negative, their Lordships held that the limited right given to an owner of the land notified for acquisition was to object to the acquisition proceedings in any inquiry u/s 5-A. Any such inquiry could not, Therefore, be said to be a mere formality. Resultantly, the right to object to the acquisition in the course of the inquiry proceedings could be taken away by dispensing with the inquiry only for good and valid reasons within the limitations prescribed u/s 17(4) of the Act. The Court further held that before dispensing with an inquiry u/s 5-A, the appropriate Government must apply its mind for it is after application of mind alone that the power to dispense with the inquiry could be validly exercised. The following two passages from the said decision are, in this regard, apposite:

A careful perusal of this provision which is an 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 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 appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency u/s 17(1) or unforeseen emergency u/s 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 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. 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. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in each and every case when there is an urgency contemplated u/s 17(1) and unforeseen emergency contemplated u/s 17(2) exists that by itself would not contain the need for dispensing with Section 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government u/s 17(1) or the unforeseen emergency u/s 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry u/s 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17 (1) and (2) of the Act.

At this stage, it is relevant to notice that the limited right given to an owner/person interested u/s 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed u/s 17(4) of the Act.

(emphasis supplied)

It is, in the light of the above authoritative pronouncement of the Supreme Court, no longer open to the respondents to argue that the mere existence of an urgency would imply that the Government had applied its mind to the question of dispensing with the inquiry u/s 5-A also. In order that an inquiry may be validly dispensed with the least which the Appropriate Government must demonstrate from the contemporaneous record is that the competent authority had applied its mind to the question whether the inquiry should or should not be dispensed with and passed an order dispensing with inquiry after such application of mind. The total absence of an order dispensing with the inquiry u/s 5-A or the making of an order without due and proper application of mind would both invalidate the proceedings and any further action that the authorities may take on the basis thereof.

Coming to the case at hand, the Lt. Governor has no doubt passed an order on 8th September, 1988, directing the issue of notifications u/s 4, 6 and 17(1) of the Act on his being satisfied that the land in question is urgently required for a public purpose, but there is no order or direction dispensing with the conduct of that inquiry u/s 5-A of the Act. Learned counsel for the respondents were unable to demonstrate that the competent authority had at any stage either passed an order dispensing with the inquiry or applied its mind to the question whether it should or should not be dispensed with. All that was pointed out was that the notification eventually issued on 20th September, 1988, dispensed with the conduct of an inquiry u/s 5A. Reliance in this regard was placed upon the following para appearing in the said notification:

The Lt.Governor, being of the opinion that provisions of sub-section (1) of section 17 of the said Act are applicable to this land, is further pleased under sub-section 4 of the said section to direct that the provisions of section 5A shall not apply.

The incorporation of the above passage in the notification does not, in our view, satisfy the requirement of an order made after due and proper application of mind after dispensing with the inquiry u/s 5A. The issue of a notification cannot take the place of an order pursuant to which alone can it be validly issued. If the competent authority had at no stage applied its mind or passed an order whether or not the inquiry should be dispensed with, a notification issued without the support of any such order can hardly suffice. It is trite that the notification can follow an order and not vice versa. That being so, the impugned notification to the extent the same purports to dispense with the inquiry u/s 5A qua the land owned by the petitioners is clearly incompetent and unsustainable.

Consequently all further actions taken by the respondents pursuant to the said notification including the declaration u/s 6 and the award made pursuant thereto, shall also have to be quashed and are hereby quashed. We, however, make it clear that this order shall not prevent the respondents from taking any further action on the basis of the preliminary notification if otherwise permissible in law.

The writ petitions are, with the above direction, allowed in part, leaving the parties to bear their own costs.