Important point
Invoking urgency clause u/s 17 of the Land Acquisition Act, cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration.

Headnote:(i) Land Acquisition Act, 1894-Sections 4 and 17(1) and (4)-Urgency Clause-Applicability-14 properties notified for acquisition under provisions of Section 4 and 17(1) and (4)-Writ petitions-Building was already in occupation of officers of Delhi Administration-Administration had sufficient time to make alternate arrangements for residence of officers-Collector did not tender 80 of the compensation of the land as estimated by him before taking possession of land-High Court quashed the notification-Ground of urgency was common in all 14 properties-Finding of fact that there was no urgency for invoking Section 17 has become final-Invocation of urgency clause was without justification.
       Held : Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5A 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 land owner of his right in relation to immoveable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5A 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 land owners and the inquiry under Section 5A 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 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 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 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 State Administration. (Para 17)
       The properties in question continued to be in possession of the appellants: in other words, there was no urgency of taking immediate possession nor there was any immediate threat of dispossessing them from the properties. At the most, after the lapsing of the Requisition Act on 10.3.1987, their possession over the properties would have been unauthorized, may be so long they continued in unauthorized possession of the properties, they were liable to pay damages for their occupation for few months during which period they could have completed acquisition proceedings in the normal course without resorting to provisions of Section 17(1) & (4) of the Act. During the course of the hearing, we specifically asked the learned counsel for the appellants in this regard, the only answer was that the appellants being Union of India & others did not want to remain in the unauthorised possession of the properties. We are not convinced by this reply so as to justify invoking urgency clause to acquire the properties. Having regard to the facts and circumstances of the case in these appeals, the authorities could have completed acquisition proceedings in couple of months even after providing opportunity for filing objections and holding inquiry under Section 5A of the Act if they were really serious. (Para 22)
       The authorities were aware that the properties were to be released or acquired and the maximum period was extended upto two years for the purpose. From 1985 to 1987 they had sufficient time to acquire the properties in question in the usual course. They had enough time to provide opportunity for filing objections and holding inquiry under Section 5A of the Act. There was no need to invoke Section 17 of the Act. The Office Memorandum dated 19.7.1979 extracted above shows that the Executive Council took the decision in view of the amendment in the Requisition and Acquisition of Immovable Property Act, 1952 with all the requisitioned/leased houses which were with the Administration for more than 10 years were to be released to their owners immediately and all the occupants of requisitioned/leased houses were requested to furnish the relevant information by 16.7.1979 failing which the officer concerned will be liable for eviction from the requisitioned house without provision for alternative accommodation. Here again, it is clear that the authorities were in know of the situation in the year 1979 itself. (Para 23)
       The High Court was not right in holding that without expression of urgency in the impugned notification itself, it could not be sustained, but then the High Court did not rest its conclusion only on this. Having examined the facts and circumstances of the case, it was found that there was no material and the circumstances even to have subjective satisfaction by the authorities to invoke urgency clause under Section 17 of the Act. This urgency was common in respect of all the 14 properties as already noticed above in the cases of Banwari Lal as well as Shakuntala Gupta aforementioned. The finding of fact that there was no urgency for invoking Section 17 has become final. This finding holds good even for these appeals. (Para 29)
       (ii) Land Acquisition Act, 1894-Sections 17 and 4-Urgency clause-Acquisition of property by notification u/s 4 and 17(1) and (4)-Finding of fact that there was no urgency for invoking Section 17 of the Act-Whether the notification can be sustained confining it to Section 4 of the Act-(No).
       Held : If the argument, as advanced on behalf of the Union, is accepted, the notification under Section 17 of the Act invoking urgency clause would stand quashed but the landowner, would nonetheless be deprived of the possession of the property as also payment of 80 of compensation under Section 17(3A) of the Act. Such an unjust result cannot be allowed to happen by quashing the notification in part only to the extent of Section 17 of the Act and maintaining it for the purpose of Section 4 of the Act. Thus, having regard to the facts and circumstances brought on record in these appeals, it is not possible to accept this argument particularly when the very foundation of invoking Section 17 was invalid and unjustified as upheld by this Court in Banwari Lal and Shakuntala Gupta. (Para 36)

Judgment

Shivaraj V. Patil, J.-Leave granted.

2. In these appeals, common order dated 22.3.2002 passed in Letters Patent Appeals by the Division Bench of High Court of Delhi, is under challenge. The facts leading to the filing of these appeals, in brief, are that:

3. In all, 14 properties including the properties in question in these appeals, were notified for acquisition on 6th March, 1987 under the provisions of Section 4 and Section 17(1) & (4) of the Land Acquisition Act, 1894 (for short ‘the Act’). Earlier these properties were requisitioned by the appellants under the Defence of India Rules. The provisions of the Requisitioning and Acquisition of Immovable Property Act, 1952 (for short ‘1952 Act’) were going to lapse on 10th March, 1987. These properties were occupied either for offices or for providing residential quarters to the officers. Out of these 14 properties, Banwari Lal and Sons and Shakuntala Gupta had questioned the validity of acquisition proceedings pertaining to property No. 6, Ansari Road, Dariyaganj, New Delhi and property No.2, Underhill Road, Delhi, respectively by filing separate writ petitions. The writ petitions were allowed and acquisition proceedings were quashed including the above-mentioned notification of 6th March, 1987. These matters attained finality having reached this Court. The respondents in these appeals filed writ petitions challenging the acquisition of their properties under the very notification. Learned Single Judge of the High Court allowed the writ petitions. The appellants questioned the correctness and validity of the orders made by learned Single Judge in the Letters Patent Appeals, which were dismissed by the impugned order mainly following earlier judgments in the cases of Banwari Lal and Sons and Shakuntala Gupta.

4. The learned senior counsel for the respondents raised a preliminary objection as to the very maintainability of these appeals on the ground that the controversy raised and the contentions sought to be urged in these appeals are fully covered against the appellants by the judgment of this Court in Union of India & Ors. vs. Shakuntala Gupta (Dead) by Lrs. [(2002) 7 SCC 98]. The learned senior counsel for the appellants, however, did not agree and sought to argue these appeals on merits raising various contentions stating that the decisions in Shakuntala Gupta (supra) and Banwari Lal & Sons Pvt. Ltd. vs. Union of India & Ors. [DRJ 1991 (Suppl) 317] are distinguishable on facts and that certain questions of law, which go to the root of the matter, were neither urged nor decided in the aforementioned two cases. Hence, we heard the learned counsel for the parties on either side at length.

5. The contentions advanced on behalf of the appellants were: (1) that Banwari Lal’s case was wrongly decided and further it was on its own facts being property specific; Banwari Lal’s case was not a precedent as no reasoned order was made by this Court inasmuch as the petition was dismissed at the SLP stage itself; (2) Non-mentioning of the nature and existence of urgency in the notification issued under Sections 4 and 17 of the Act does not vitiate the notification; subjective satisfaction as regards urgency could not be determined solely on the basis of the expressions used in the notification and such urgency could be gathered looking to the surrounding circumstances and the records which would show the urgency for the acquisition; (3) pre and post notification delay would not affect the notification on account of lethargy of the officers and such delay would not render the exercise of power to invoke urgency clause invalid where there was a grave urgency on account of shortage of Government housing; (4) the High Court committed a serious error in appointing the arbitrator to determine the damages in the absence of any arbitration agreement and there being no prayer in that regard in the writ petition; (5) correctness of the order in Banwari Lal’s case was not considered in Shakunt

Click Here to Read the rest of this document

2004 Supreme(SC) 577

Important pointInvoking urgency clause u/s 17 of the Land Acquisition Act, cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration.

Cases Referred (13)

Important point
Invoking urgency clause u/s 17 of the Land Acquisition Act, cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration.