IMPORTANT POINT
It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) of Land Acquisition Act, itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5A of the Act but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of Section 5A enquiry is inherent in the two types of urgencies contemplated u/s 17(1) and (2) of the Act.

Headnote:(i) Land Acquisition Act, 1894-Sections 17(4), 5A and 4-Urgency Provision-Interpretation of Section 17(4) of the Act-Application of mind as to existence of need for dispensation of Section 5A inquiry.
       Held : Sub-section (1) of Sec. 17 contemplates taking possession of the land in the case of an urgency without making an award but after the publication of Section 9(1) notice and after the expiration of 15 days of publication of Section 9(1) notice. Therefore it is seen that if the appropriate Government decides that there is an urgency to invoke Section 17(1) in the normal course Section 4(1) notice will have to be published, Section 6 declaration will have to be made and after completing the procedure contemplated under Sections 7 and 8, 9(1) notice will have to be given and on expiration of 15 days from the date of such notice the authorities can take possession of the land even before passing of an award. Sub-section (2) of Section 17 contemplates a different type of urgency inasmuch as it should be an unforeseen emergency. Under this Section if the appropriate Government is satisfied that there is such unforeseen emergency the authorities can take possession of the land even without waiting fort 15 days period contemplated under Section 9(1). Therefore, in cases, where Government is satisfied that there is an unforeseen emergency it will have to in the normal course, issue a Section 4(1) notification, hold 5A inquiry, make Section 6 declaration, and issue Section 9(1) notice and possession can be taken immediately thereafter without waiting for the period of 15 days prescribed under Section 9(1) of the Act. Section 17(4) as noticed above provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency or unforeseen emergency as required under sub-sections (1) or (2) of Section 17 it may direct that the provisions of Section 5A shall not apply and if such direction is given then 5A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of 4(1) notification possession can be made. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows 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 5A inquiry. It requires an opinion to be formed by the concerned government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A inquiry which indicates that the Legislature intended that the appropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of an urgency under Section 17 (1) or unforeseen emergency under Section 17(2) would not by themselves be sufficient for dispensing with 5A inquiry. If that was not the intention of the Legislature then the latter part of sub-section (4) of Section 7 would not have been necessary and the Legislature in Section 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with 5A 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 5A inquiry does not mean that in and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under Section 17(1) and (2) of the Act. (Paras 28 to 31)
       (ii) Land Acquisition Act, 1894-Sections 17(4), 5A and 4-Order u/s 17(4) of the Act-Procedure to be followed by appropriate Government-Existence of need for dispensation of Section 5A inquiry-Lt. Governor was not informed that there was an earlier attempt to acquire land for the same public purpose and said acquisition had lapsed by efflux of time-Proceedings initiated for acquisition of land for purpose of festival of Phool Walon Ki Sair -Notification u/s 4 for acquiring 72 bighas of land for public purpose of Planned Development of Delhi-Notification specifically stated that Lt. Governor was of the opinion that provision of sub-section (1) of Section 17 of the Act is applicable to this acquisition-Writ petitions challenging the notification-Whether provisions of Section 5A of the Act should have been dispensed with by the Lt. Governor-(No).
       Held : The facts of the present case as found from the records shows that the Anjuman-Saire-e-Gul-Faroshan the committee that organises this festival was using some land in village Mehrauli for conducting its concluding ceremony. It is for this purpose it sought 4000 sq. yards of land in Khasra No. 1151/3 (new) and 1665 (old) of said village. It is also found from the record ever since the revival of the festival the concluding programme was being continued in a piece of land situated in the said Khasra of Mehrauli village which is now sought to be acquired along with certain other lands. There is no material on record to show that either the said festival has been discontinued for want of land or the owners of the land where the festival has its concluding ceremony are preventing the utilisation of that land for the said purpose. We have also noticed hereinabove that an earlier attempt to acquire 40 bighas of the land for the very same purpose was allowed to be lapsed by the authorities concerned by afflux of time which is also a relevant factor to be taken note of by the Lt. Governor when he took the decision to dispense with the 5A inquiry but the same was not placed before him. These facts coupled with the findings of the High Court that in almost all the notings in the file there is no reference to the need for invoking Section 17(4) indicates that the Lt. Governor was not apprised of all the necessary and relevant facts before he took the decision in question. Therefore, in our opinion, the findings of the High Court that the decision of the Lt. Governor to dispense with the 5A inquiry suffered from the vice of non-application of mind has to be upheld. (Para 36)

JUDGMENT

Santosh Hegde, J.-Leave granted.

2. In these appeals, a short but an important question of law arises for our consideration as to the interpretation of Section 17(4) of the Land Acquisition Act, 1894 ( the Act ) and the procedure to be followed by the appropriate Government while dispensing with the inquiry contemplated under Section 5A of the Act.

3. These question arose for consideration before the Division Bench of the High Court which on facts came to conclusion that the Lt. Governor of Delhi who was the authority to pass orders under Section 17(4) of the Act did not apply his mind as to the existence of need for the dispensation of 5A inquiry. High Court also held that the Lt. Governor was not informed that there was an earlier attempt to acquire land measuring 40 bighas for the same public purpose and said acquisition had lapsed by afflux of time which also contributed to non-application of mind. Hence, the decision of the Lt. Governor to exclude the inquiry under Section 5A of the Act in the present acquisition proceedings was vitiated.

4. The acquiring authority namely the Union of India and others connected with the said acquisition are in appeal before us in the above appeals questioning the correctness of the said judgment.

5. The facts necessary for the disposal of these appeals are as follows:- There is an annual festival called "Phool Walon Ki Sair", which was started during the Mughal regime. But over the period the same was discontinued. It is stated that in the year 1961 the then Prime Minister of India Pt. Jawahar Lal Nehru took the initiative to revive this age old festival to focus on the spirit of secularism. It is also stated that the festival has since been revived and is being organised by an organisation called Anjuman-Saire-e-Gul-Faroshan and this organisation has the President of India as its Chief Patron. From the records it is seen at present this festival which starts with a procession concludes with all its participants gathering in the village Mehrauli. The above mentioned organisation in the year 1987 felt that it required 4000 sq. yards of land in and around the place where this festival concludes, for a proper procession ceremony hence made a representation to the Lt. Governor on 19.10.1987 seeking acquisition of the said area of land in Mehrauli village. Based on the instructions issued by the Lt. Governor in this regard proceedings were initiated to acquire the earmarked land for the purpose of above festival of "Phool Walon Ki Sair". During the process of considering this acquisition proceedings it was noticed by the authorities that in and around the area required for the above acquisition, there were certain ancient monuments which were in dilapidated conditions, it was also noticed that certain areas of land which was sought to be acquired was in the unauthorised possession of some persons. Hence, to serve the larger public purpose of notification acquiring 72 bighas of land was mooted under the stated public purpose of Planned Development of Delhi. During the process of preparing the acquisition notification the recommending authorities felt that provisions of Section 17(1) of the Act should be utilised to facilitate urgent acquisition of the required land. Hence nothings were put up on different levels that the draft notification may indicate the need for urgency for invoking Section 17(1) of the Act. Since, the usual bureaucratic procedure was not proceeding in the required pace Delhi Administration wrote a letter to the Deputy Commissioner, Delhi dated 8.6.1988 calling upon the said officer to ensure that the concerned draft notification in regard to the said acquisition should be sent to that office without further delay. It is in the above background a notification dated 30.6.1988 under Section 4(1) of the Act came to be published. As stated above, the public purpose mentioned therein was "Planned Development of Delhi". This notification specifically stated that the Lt. Govern

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2004 Supreme(SC) 1092

Cases Referred (7)