REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2523 OF 2008

Anand Singh & Anr.          …Appellants

Versus State of Uttar Pradesh & Ors.     …Respondents

WITH

CIVIL APPEAL NO. 2517 OF 2008

CIVIL APPEAL NO. 2518 OF 2008

CIVIL APPEAL NO. 2519 OF 2008

CIVIL APPEAL NO. 2524 OF 2008

CIVIL APPEAL NO. 2525 OF 2008

CIVIL APPEAL NO. 2561 OF 2008

CIVIL APPEAL NO. 2731 OF 2008

CIVIL APPEAL NO. 2724 OF 2008

AND CIVIL APPEAL NO. 2703 OF 2008

JUDGEMENT R.M. Lodha, J.

Of  this  group  of  ten  appeals,  7  arise  from  the  

common judgment and order dated May 6, 2005 passed by the

High Court of Judicature at Allahabad. The remaining 3 appeals  

arise from separate judgments (dated January 18, 2007, March  

22, 2007 and April 25, 2007) and in one of them,  the common  

judgment  and  order  dated  May  6,  2005  was  followed.  As  

identical  questions  are  involved,  these  appeals  were  heard  

together and are being disposed of by this common judgment.

2. The  appellants  in  these  appeals  have  small  

holdings of land in Manbela, Hamidpur and Jangal Sikri etc.,  

Pargana  Haveli,  District  Gorakhpur  in  the  State  of  Uttar  

Pradesh. About 209.515 hectares of land including the land of  

the  appellants  was  sought  to  be  acquired  for  the  public  

purpose,  namely,  for  residential  colony  by  the  Gorakhpur  

Development Authority (GDA), Gorakhpur. Vide  public notices  

issued  under  sub-section  (1)  of  Section  4  of  the  Land  

Acquisition Act,  1894 (for  short,  ‘the Act’)   on November 22,  

2003 and February 20, 2004 notifying for general information  

that the land mentioned in the schedule appended thereto was  

needed  for  the  said  public  purpose.  The  provisions  of  sub-

section (1) of Section 17 of the Act were also invoked as in the  

opinion of the Governor, the land proposed to be acquired was  

urgently required.  By use of power under Section 17(4) of the

Act, it was stated in the notification that Section 5A of the Act  

shall  not apply.  These public notices are said to have been  

published in  the  Official  Gazette  as  well  as  other  modes as  

prescribed in   Section 4.  

3. On December  28,  2004,  a  declaration  was  made  

under  Section  6  of  the  Act  that  the  land  mentioned  in  the  

schedule  including  the  subject  land  was  needed  for  public  

purpose,  namely,  for  the  construction  of  residential  colony  

under a planned development scheme. By the said notification,  

the Collector, Gorakhpur was also directed that on expiration of  

15 days from the publication of the notice under Section 9(1),  

the possession of the land mentioned in the schedule may be  

taken, although no award under Section 11 has been made.

4. The present appellants and the other tenure holders  

whose  land  was  sought  to  be  acquired  pursuant  to  the  

aforesaid notifications, approached the High Court by filing writ  

petitions wherein, inter alia, a plea was raised that there was no  

justification to invoke urgency clause and there was no material  

before the Government for dispensing with the enquiry under  

Section  5A  of  the  Act.  They  averred  that  structures  and  

buildings were existing on their respective holdings and even

otherwise  they  are  entitled  to  release  of  their  land  from  

acquisition.  

5. The State Government as well as the GDA opposed  

the writ petitions and justified invocation of urgency clause and  

the dispensation of summary enquiry under Section 5A as the  

land was required for providing residential and housing colony  

for the lower income group, middle income group and higher  

income group  by the GDA.

6. The High Court by its common judgment and order  

dated May 6, 2005 held that none of the grounds raised by the  

petitioners  in  the  writ  petitions  was  sustainable  and  

consequently  upheld  the  notifications  under  challenge.  While  

dealing with the aspect of existence of buildings on the subject  

land  and  petitioners’  prayer  for  direction  to  the  State  

Government to consider deacquisition by exercising its power  

under  Section  48  of  the  Act,  the  Court  observed  that  the  

petitioners  may  approach  the  State  Government  for  the  

redressal of their grievance in accordance with law. As noticed  

above,  in one of  the subsequent orders,  the High Court  has  

followed the common judgment and order dated May 6, 2005.

7. Be it noticed here that prior to the issuance of the  

notifications  dated  November  22,  2003/February  20,  2004  

under Section 4(1) read with Sections 17(1) and 17(4) of the  

Act,  somewhere  in  the  month  of  February,  2000,  a  Land  

Selection Committee was constituted to identify the availability  

of  land  for  a  housing  colony  in  or  around  Gorakhpur.  The  

Committee so constituted made spot inspection in April, 2001  

and  proposed  acquisition  of  land  in  nine  villages  including  

Manbela, Jungle Sikri @ Khorabar, Khorabar @ Subba Bazar,  

Salempur @ Mugalpur, Hamidpur etc. However, nothing further  

was done as the tenure holders opposed the acquisition of their  

land and the Commissioner, Gorakhpur by his order dated May  

2,  2001  stayed  proposal  submitted  by  the  Land  Selection  

Committee in public interest.

8. Mr.  K.B.  Sinha,  learned  senior  counsel  for  the  

appellants  principally  raised  two-fold  submission  before  us.  

Firstly,  learned  senior  counsel  submitted  that  invocation  of  

urgency  clause  under  Section  17(1)  and  dispensation  of  

summary enquiry for the public purpose, namely, ‘development  

of  residential  colony’  were  wholly  unjustified.   He  contended  

that  such  an  act  of  the  State  was  in  colourable  exercise  of

power.  He  would  submit  that  the  development  of  residential  

colony  takes  sufficiently  long  time  and  does  not  necessitate  

dispensation with the enquiry and no exceptional circumstances  

have  been  brought  on  record  by  the  Government  that  may  

justify exercise of such extraordinary power. Secondly, learned  

senior  counsel  submitted  that  in  view  of  the  fact  that  the  

appellants  have  constructed  their  residential  houses  much  

before the issuance of impugned notifications, the State must  

exercise its power under Section 48 and release their land from  

acquisition.  He would submit that the State Government has  

adopted a policy of pick and choose inasmuch as some land  

has been released from acquisition while the appellants’ land  

has not been considered for being released.

9. Learned counsel  for  the other  appellants  adopted  

the arguments of Mr. K.B. Sinha. Insofar as Civil  Appeal No.  

2703 of 2008 is concerned, learned counsel submitted that in  

respect of the land under consideration in this appeal, a Degree  

College is in existence and this aspect has been overlooked by  

the Government while issuing impugned notifications.  

10. Mr. Dinesh Dwivedi, learned senior counsel for the  

State of Uttar Pradesh as well as Mr. Irshad Ahmad, learned

counsel  for  the GDA justified the impugned notifications and  

submitted  that  the  State  Government  has  acted  within  its  

competence  and  power  in  invoking  urgency  clause  and  

dispensation of enquiry under Section 5A for the public purpose  

viz.,  development  of  residential  colony  since  in  Gorakhpur  

housing was urgently required for various groups of the society.  

They  submitted  that  there  is  no  impediment  for  the  State  

Government in invoking urgency clause for the public purpose  

of housing.  On behalf of the GDA, it was contended that many  

steps have been taken in developing the land acquired under  

the impugned notifications inasmuch as water line, electric line,  

sewerage  line,  drainage  etc.  have  been  laid  and  roads  

constructed. In the written arguments submitted by the GDA, it  

has  been  stated  that  the  total  cost  of  development  of  the  

acquired  land  is  Rs.  8,85,14,000/-  and  out  of  which  

5,28,00,000/-  have already been spent and about 60% work  

has already been completed.   It has also been submitted by  

the GDA that after the award was made, compensation amount  

has  been  deposited  and  barring  appellants  and  6-7  other  

persons,  all  land  owners  have  accepted  compensation.  As  

regards appellants’ land, it is stated that structures have been

put up subsequent to the issuance of impugned notifications.   

11. Learned senior counsel and counsel for the parties  

cited some decisions of this Court in support of their respective  

submissions.  We shall refer to them appropriately a little later.

12. In  the  light  of  the  contentions  of  the  parties,  the  

question for our consideration is as to whether the impugned  

notifications  dated  November  22,  2003/February  20,  2004  

invoking  urgency  clause  and  dispensation  of  enquiry  under  

Section  5A  for  the  public  purpose  viz.,  ‘development  of  

residential  colony’ are legal and valid and if  the answer is in  

negative, whether on the facts and in the circumstances, the  

appellants are entitled to any relief.  

13. Before  we  advert  to  the  aforesaid  question,  it  is  

appropriate  that  we  briefly  notice  the  relevant  provisions  

contained in the Act. The Act was enacted for the acquisition of  

land needed for  public  purposes  and  for  companies  and  for  

determining the amount of compensation to be made on such  

acquisition.  Section  4  makes  a  provision  for  publication  of  

preliminary notification notifying that land mentioned therein is  

needed  for  a  public  purpose.  It  provides  for  the  mode  of  

publication of  such notification and empowers the authorized

officers to make survey and set out the boundaries of the land  

proposed to be taken amongst  other acts as provided in the  

said  Section.  Section  5A  confers  a  right  on  the  person  

interested in any land which has been notified under Section  

4(1)  as  being  needed  for  a  public  purpose  or  likely  to  be  

needed for  public  purpose to object  to the acquisition of  the  

land.  It  provides  that  the  objector  shall  be  provided  an  

opportunity of hearing and after hearing all such objections and  

after making such further enquiry, the Collector may submit his  

report  to  the  appropriate  government  along  with  his  

recommendations  on  the  objections  and  the  record  of  

proceedings.   Section  6  provides  for  declaration  of  intended  

acquisition in the mode prescribed thereunder. The declaration  

made under Section 6 is conclusive evidence that the land is  

needed for a public purpose and after making such declaration,  

the appropriate government may acquire the land in the manner  

provided in subsequent  provisions.  Section 6 also prescribes  

time limit  in  making such declaration.   Section  9  provides a  

public  notice  to  be  given  by  the  Collector  stating  that  the  

government  intends to  take possession  of  the  land and that  

claims to compensation for all  interests in such land may be

made to him. As per Section 11, the Collector is required to  

enquire  into  the  objections  that  may  be  received  from  the  

persons interested pursuant to the notice issued under Section  

9  and  determine  the  award  of  compensation,  inter  alia  by  

enquiring into the value of the land and the respective interests  

of the persons claiming compensation. Section 11-A prescribes  

the limitation for making an award under Section 11. Section 16  

provides for taking possession of the land after the Collector  

has made an award under Section 11.  The special powers in  

cases  of  urgency  and  unforeseen  emergency  are  conferred  

upon the government under Section 17. Sub-section (1) thereof  

provides that  in case of  urgency the appropriate government  

may direct the Collector to take possession of any land needed  

for  public  purpose  on  expiration  of  fifteen  days  from  the  

publication of the notice mentioned in Section 9, although no  

award has been made. Sub-section (2) confers power on the  

appropriate government to acquire the immediate possession of  

the land for the purposes specified thereunder in the cases of  

unforeseen emergency.  Sub-section (3A), however mandates  

that before taking possession of any land under sub-section (1)  

or sub-section (2), the Collector shall tender payment of 80% of

the compensation as estimated by him to the persons entitled  

thereto  and  pay  the  said  compensation  to  them  unless  

prevented  by  the  contingencies  under  Section  31(2).  Sub-

section  (4)  empowers  the  government  to  direct  that  the  

provisions of Section 5A shall not apply, on its satisfaction that  

the provisions contained in sub-section (1) or sub-section (2)  

are applicable and a declaration may be made under Section 6  

after  the  publication  of  the  notification  under  Section  4(1).  

Insofar  as Uttar  Pradesh is  concerned,  sub-section (1A)  has  

been inserted after sub-section (1) of Section 17 which provides  

that the power to take possession under sub-section (1) may  

also be exercised, inter alia, if the land is required for ‘planned  

development’.   Section 48 gives liberty to the government to  

withdraw from acquisition of any land.  

14. The matters involving invocation of urgency clause  

and dispensation of the enquiry under Section 5A have come  

up for consideration before this Court from time to time. In Raja  

Anand Brahma Shah v.  State of Uttar Pradesh and Ors.1, this  

Court  observed  that  the  opinion  of  the  government  formed  

under Section 17(4) of the Act can be challenged as ultra vires  

1 (1967) 1 SCR 373

in a court of law, if it could be shown that the government never  

applied  its  mind  to  the  matter  or  that  the  action  of  the  

government is mala fide.

15. In case of Jage Ram and Ors. v.  State of Haryana  

and Ors.2 while considering the urgency provision contained in  

Section  17,  this  Court  held  that  merely  because  there  was  

some laxity at an earlier stage, it cannot be inferred that on the  

date the notification was issued there was no urgency. It was  

held that the conclusion of the government in a given case that  

there was urgency is entitled to weight, if not conclusive.

16. A  three-Judge  Bench  of  this  Court  in  Narayan  

Govind  Gavate  and  Ors. v.  State  of  Maharashtra  and  Ors.3  

extensively considered Section 17 of the Act vis-à-vis extent of  

judicial review.  That was a case wherein the public purpose  

recited in  the notification was ‘development  and utilization of  

said land as a residential and industrial area’.  This Court stated  

the legal position as follows :

“37.  We think that Section 17(4) cannot be read in  isolation from Section 4(1) and 5-A of the Act. The  immediate  purpose  of  a  notification  under  Section  4(1) of the Act is to enable those who may have any  objections to make to lodge them for purposes of an  enquiry under Section 5-A of the Act. It is true that,  

2 (1971) 1 SCC 671 3 (1977) 1 SCC 133

although  only  30  days  from the  notification  under  Section  4(1)  are  given  for  the  filing  of  these  objections  under  Section  5-A  of  the  Act,  yet,  sometimes the proceedings under  Section 5-A are  unduly prolonged. But, considering the nature of the  objections which are capable of  being successfully  taken under Section 5-A, it is difficult to see why the  summary  enquiry  should  not  be  concluded  quite  expeditiously. In view of the authorities of this Court,  the  existence  of  what  are  prima  facie  public  purposes,  such  as  the  one  present  in  the  cases  before us, cannot be successfully challenged at all  by  objectors.  It  is  rare  to  find  a  case  in  which  objections to the validity of a public purpose of an  acquisition can even be stated in a form in which the  challenge could succeed. Indeed, questions relating  to validity of the notification on the ground of mala  fides do not seem to us to be ordinarily open in a  summary  enquiry  under  Section  5-A  of  the  Act.  Hence,  there  seems  to  us  to  be  little  difficulty  in  completing enquiries contemplated by Section 5-A of  the Act very expeditiously.

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 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.

39.  Section  17(2)  deals  with  a  case  in  which  an  enquiry  under  Section  5-A  of  the  Act  could  not  possibly serve any useful purpose. Sudden change  of  the  course  of  a  river  would  leave  no  option  if  essential communications have to be maintained. It  results in more or less indicating, by an operation of  natural physical forces beyond human control, what  land should be urgently taken possession of. Hence,  it  offers  no  difficulty  in  applying  Section  17(4)  in

public  interest.  And,  the  particulars  of  what  is  obviously to be done in public interest need not be  concealed when its validity is questioned in a Court  of justice. Other cases may raise questions involving  consideration of facts which are especially within the  knowledge of the authorities concerned. And, if they  do not  discharge their  special  burden, imposed by  Section 106, Evidence Act, without even disclosing a  sufficient reason for their abstention from disclosure,  they have to take the consequences which flow from  the non-production of the best evidence which could  be produced on behalf of the State if its stand was  correct.

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 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.

41.  Again, the uniform and set recital of a formula,  like  a  ritual  or  mantra,  apparently  applied  mechanically to every case, itself indicated that the  mind  of  the  Commissioner  concerned  was  only  applied to the question whether the land was waste  or  arable  and  whether  its  acquisition  is  urgently  needed.  Nothing beyond that seems to have been  considered. The recital itself shows that the mind of  the  Commissioner  was  not  applied  at  all  to  the  question whether the urgency is of such a nature as  to require elimination of the enquiry under Section 5- A of the Act. If it was, at least the notifications gave  no inkling of  it  at  all.  On the other hand, its literal

meaning  was  that  nothing  beyond  matters  stated  there were considered.

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 schemes of  development  does not  appear  to  demand  such  emergent  action  as  to  eliminate  summary  enquiries  under  Section  5-A of  the  Act.  There  is  no  indication  whatsoever  in  the  affidavit filed on behalf of the State that the mind of  the Commissioner was applied at all to the question  whether it was a case necessitating the elimination  of  the  enquiry  under  Section  5-A  of  the  Act.  The  recitals  in  the  notifications,  on  the  other  hand,  indicate that elimination of the enquiry under Section  5-A  of  the  Act  was  treated  as  an  automatic  consequence of the opinion formed on other matters.  The recital does not say at all that any opinion was  formed  on  the  need  to  dispense  with  the  enquiry  under Section 5-A of the Act. It is certainly a case in  which the recital was at least defective. The burden,  therefore,  rested  upon  the  State  to  remove  the  defect,  if  possible, by evidence to show that some  exceptional  circumstances  which  necessitated  the  elimination of  an enquiry under Section 5-A of  the  Act  and  that  the  mind  of  the  Commissioner  was  applied to this essential question. It seems to us that  the  High  Court  correctly  applied  the  provisions  of  Section 106 of the Evidence Act to place the burden  upon the State to prove those special circumstances,  although it  also appears to us that  the High Court  was  not  quite  correct  in  stating its  view in such a  manner as to make it appear that some part of the  initial  burden of the petitioners under Sections 101  and 102 of the Evidence Act had been displaced by  the failure of  the State to discharge its duty under  Section 106 of the Act. The correct way of putting it  would have been to say that the failure of the State  to produce the evidence of facts especially within the  knowledge of its officials, which rested upon it under  Section 106 of the Evidence Act, taken together with  the attendant facts and circumstances, including the  contents of  recitals,  had enabled the petitioners  to

discharge their burden under Sections 101 and 102  of the Evidence Act.”

17. In  State of Punjab and Anr. v.  Gurdial  Singh and  

Ors.4 while dealing with the invocation of Section 17 of the Act  

for the public purpose, namely, grain market, this Court stated  

that compulsory taking of a man’s property is a serious matter  

and  the  smaller  the  man  the  more  serious  the  matter.  This  

Court observed that hearing the owner before depriving him is  

both reasonable and pre-emptive of arbitrariness and denial of  

this  administrative  fairness  is  constitutional  anathema except  

for  good  reasons.  It  was  further  observed  that  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 an enquiry under Section 17 of the Act.  

18. In  the  case  of  Deepak  Pahwa  and  Ors. v.  Lt.   

Governor of Delhi and Ors.5,  a three-Judge Bench of this Court  

was  concerned  with  the  challenge  to  the  notification  issued  

under Sections 4 and 17 of the Act for the public purpose viz.;  

‘construction  of  a  New  Transmitting  Station  for  the  Delhi  

4 (1980) 2 SCC 471 5 (1984) 4 SCC 308

Airport’.  While noticing the decision of this Court in Jage Ram2,  

the Court observed that very often the delay makes the problem  

more  and  more  acute  and  increases  the  urgency  of  the  

necessity  for  acquisition.  It  was  further  observed  that  pre-

notification delay would not render the invocation of the urgency  

provisions void.

19. In the case of State of U.P. v.  Smt. Pista Devi and  

Ors.6, this Court was concerned with the question of urgency in  

acquisition of  large tract  of  land by the Meerut  Development  

Authority  for  its  housing scheme with  the object  of  providing  

housing accommodation to  the residents  of  Meerut  city.  The  

notification under Section 4 read with Section 17(1) and (4) was  

published  in  the  U.P.  Gazette  on  July  12,  1980  and  the  

declaration under Section 6 of the Act was issued on May 1,  

1981. The possession of the land was taken and handed over  

to the Meerut Development Authority in July 1982. Thereafter,  

about 17 persons who owned in all about 40 acres of land out  

of the total of about 412 acres acquired, filed writ petitions in  

the  High Court  challenging  the aforesaid  notifications  on the  

ground that the action of the government in invoking Section  

6 (1986) 4 SCC 251

17(1) of the Act and dispensing with the enquiry under Section  

5A of  the Act was not  called for  in the circumstances of the  

case.  The High Court after hearing the parties held that the  

dispensation with the enquiry under Section 5A was invalid one  

and, accordingly, quashed the notifications.  Aggrieved by the  

judgment of the High Court, the State of U.P. as well as Meerut  

Development  Authority  preferred  appeal  before this  Court  by  

special  leave. This Court  set aside the judgment of the High  

Court. While doing so, this Court held thus :

“6. What was said by the learned Judge in the context  of provision of housing accommodation to Harijans is  equally true about the problem of providing housing  accommodation  to  all  persons  in  the  country  today  having regard to the enormous growth of population in  the  country.  The  observation  made  in  the  above  decision  of  the  High  Court  of  Andhra  Pradesh  is  quoted with approval by this Court in Deepak Pahwa  v.  Lt.  Governor of  Delhi,  (1984)  4 SCC 308,  even  though in the above decision the Court found that it  was  not  necessary  to say anything about  the post- notification delay. We are of the view that in the facts  and circumstances of  this  case the  post-notification  delay of nearly one year is not by itself sufficient to  hold that the decision taken by the State Government  under Section 17(1) and (4) of the Act at the time of  the issue of the notification under Section 4(1) of the  Act was either improper or illegal.

7. It  was next contended that in the large extent of  land acquired which was about 412 acres there were  some buildings here and there and so the acquisition  of  those parts  of  the land on which  buildings were  situated was unjustified since those portions were not  either waste or arable lands which could be dealt with

under Section 17(1) of  the Act.  This contention has  not been considered by the High Court. We do not,  however,  find  any substance in  it.  The government  was  not  acquiring  any  property  which  was  substantially covered by buildings. It acquired about  412 acres of land on the outskirts of Meerut city which  was described as arable land by the Collector. It may  be  true  that  here  and  there  were  a  few  super- structures.  In  a  case  of  this  nature  where  a  large  extent  of  land  is  being  acquired  for  planned  development of the urban area it would not be proper  to leave the small  portions over which some super- structures  have  been  constructed  out  of  the  development scheme. In such a situation where there  is real urgency it would be difficult to apply Section 5- A of the Act in the case of few bits of land on which  some structures are standing and to exempt the rest  of the property from its application. Whether the land  in question is waste or arable land has to be judged  by looking at the general nature and condition of the  land. It is not necessary in this case to consider any  further the legality or the propriety of the application of  Section  17(1)  of  the  Act  to  such  portions  of  land  proposed to be acquired,  on which super-structures  were standing because of the special provision which  is inserted as sub-section (1-A) of Section 17 of the  Act  by  the Land Acquisition  (U.P.  Amendment)  Act  (22 of 1954) which reads thus:

“(1-A)  The  power  to  take  possession  under  sub- section (1) may also be exercised in the case of land  other  than waste  or  arable  land,  where  the  land is  acquired  for  or  in  connection  with  sanitary  improvements of any kind or planned development.”

8. It  is  no doubt  true  that  in  the notification  issued  under  Section  4  of  the  Act  while  exempting  the  application  of  Section  5-A  of  the  Act  to  the  proceedings,  the State Government  had stated that  the land in question was arable land and it had not  specifically referred to sub-section (1-A) of Section 17  of  the  Act  under  which  it  could  take  possession of  land other than waste and arable land by applying the  urgency clause. The mere omission to refer expressly  Section 17(1-A) of the Act in the notification cannot be

considered  to  be  fatal  in  this  case  as  long  as  the  government had the power in that sub-section to take  lands  other  than  waste  and  arable  lands  also  by  invoking the urgency clause. Whenever power under  Section  17(1)  is  invoked  the  government  automatically becomes entitled to take possession of  land other than waste and arable lands by virtue of  sub-section  (1-A)  of  Section  17  without  further  declaration  where  the  acquisition  is  for  sanitary  improvement or planned development. In the present  case the acquisition is for planned development. We  do  not,  therefore  find  any  substance  in  the  above  contention.”

20. In  Rajasthan  Housing  Board  and  Ors. v.  Shri   

Kishan and Ors.7, a large extent of land was acquired for the  

benefit  of  Rajasthan Housing Board.   While  dealing with  the  

provisions  contained  in  Sections  17(4)  and  (1),  4  and  6  of  

Rajasthan Land Acquisition Act, 1953 (the provisions being pari   

materia  to the provisions of the Act),  this Court held 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  Court  noticed  that  in  view of  the  time  bound  

programme  stipulated  by  the  lender  (HUDCO)  and  a  large  

number of  engineers and other  subordinate staff  for  carrying  

7 (1993) 2 SCC 84

out  the  said  work  having  already  been  appointed,  the  

satisfaction of  the State Government  that  holding an enquiry  

under  Section  5A  would  result  in  uncalled  for  delay  

endangering  the  entire  scheme  and  time  schedule  of  the  

Housing Board could not be faulted.

21. In  Chameli  Singh  and  Ors. v.  State  of  U.P.  and  

Anr..8 ,  a three-Judge Bench of this Court was seized with a  

matter  wherein  acquisition  of  the  land  was  for  the  public  

purpose, namely, for providing ‘houses to Scheduled Castes’.  

Dealing with a challenge to the opinion of urgency formed by  

the appropriate government and its satisfaction to eliminate the  

enquiry under Section 5A, this Court observed that the opinion  

of the government is entitled to great weight unless it is vitiated  

by  mala  fides  or  colourable  exercise  of  power.  Noticing  the  

earlier judgments of this Court, particularly, Pista Devi6, Deepak  

Pahwa5,  Jage Ram2,  Narayan Govind Gavate3 and  Rajasthan  

Housing Board8, this Court said:

“14.  What was  said by Chinnappa Reddy,  J.  in the  context  of  provisions  of  housing  accommodation  to  Harijans is equally applied to the problem of providing  housing accommodation to all persons in the country  in  State  of  U.P.  v.  Pista  Devi,  (1986)  4  SCC 251,  holding  that  today  having  regard  to  the  enormous  growth  of  population,  urgency  clause  for  planned  

8 (1996) 2 SCC 549

development  in  urban areas  was  upheld  by  a  two- Judge Bench. The ratio of  Kasireddy Papaiah case,  AIR 1975 AP 269, was  quoted  with  approval  by  a  three-Judge Bench in Deepak Pahwa v. Lt. Governor  of Delhi, (1984) 4 SCC 308. The delay by the officials  was  held  to  be  not  a  ground  to  set  at  naught  the  power to exercise urgency clause in both the above  decisions.  It  would  thus  be  clear  that  housing  accommodation to the Dalits  and Tribes is in acute  shortage  and  the  State  has  undertaken  as  its  economic policy under planned expenditure to provide  shelter to them on a war footing, in compliance with  the constitutional obligation undertaken as a member  of the UNO to the resolutions referred to hereinbefore.

15.  The question, therefore, is whether invocation of  urgency clause under Section 17(4) dispensing with  inquiry  under  Section  5-A  is  arbitrary  or  is  unwarranted for providing housing construction for the  poor.  In  Aflatoon  v.  Lt.  Governor of  Delhi,  (1975) 4  SCC 285,    a Constitution Bench of this Court  had  upheld the exercise of the power by the State under  Section  17(4)  dispensing  with  the  inquiry  under  Section 5-A for the planned development of Delhi. In  Pista  Devi  case this  Court  while  considering  the  legality  of  the exercise  of  the  power  under  Section  17(4) exercised by the State Government dispensing  with  the  inquiry  under  Section  5-A  for  acquiring  housing accommodation for planned development of  Meerut,  had  held  that  providing  housing  accommodation  is  national  urgency  of  which  court  should  take  judicial  notice.  The  pre-notification  and  post-notification  delay  caused  by  the  officer  concerned does not create a cause to hold that there  is no urgency.  Housing conditions of  Dalits  all  over  the country continue to be miserable even till date and  is  a fact  of  which courts  are bound to  take judicial  notice.  The  ratio  of  Deepak  Pahwa  case  was  followed.  In  that  case  a  three-Judge  Bench  of  this  Court  had  upheld  the  notification  issued  under  Section 17(4), even though lapse of time of 8 years  had  occurred  due  to  inter-departmental  discussions  before  receiving  the  notification.  That  itself  was  considered to be a ground to invoke urgency clause.  It  was  further  held  that  delay  on  the  part  of  the

lethargic officials to take further action in the matter of  acquisition  was  not  sufficient  to  nullify  the  urgency  which  existed  at  the  time  of  the  issuance  of  the  notification  and  to  hold  that  there  was  never  any  urgency. In  Jage Ram v.  State of Haryana,  (1971) 1  SCC 671, this Court upheld the exercise of the power  of urgency under Section 17(4) and had held that the  lethargy on the part of the officers at an early stage  was not relevant to decide whether on the day of the  notification there was urgency or not. Conclusion of  the Government that there was urgency, though not  conclusive,  is  entitled  to  create  weight.  In  Deepak  Pahwa  case this  Court  had  held  that  very  often  persons  interested  in  the  land  proposed  to  be  acquired may make representations to the authorities  concerned against  the proposed writ  petition that  is  bound  to  result  in  multiplicity  of  enquiries,  communications and discussions leading invariably to  delay in the execution of even urgent projects. Very  often delay makes the problem more and more acute  and  increases  urgency  of  the  necessity  for  acquisition.  In  Rajasthan  Housing  Board  v.  Shri   Kishan, (1993) 2 SCC 84,  this Court had held that it  must  be  remembered  that  the  satisfaction  under  Section 17(4) is a subjective one and that so long as  there is material upon which Government could have  formed the said satisfaction fairly, the Court would not  interfere  nor  would  it  examine  the  material  as  an  appellate authority. In State of U.P. v. Keshav Prasad  Singh, (1995) 5 SCC 587,  this Court had held that  the Government was entitled to exercise the power  under Section 17(4) invoking urgency clause and to  dispense  with  inquiry  under  Section  5-A  when  the  urgency was noticed on the facts available on record.  In Narayan Govind Gavate case a three-Judge Bench  of this Court had held that Section 17(4) cannot be  read in isolation from Section 4(1) and Section 5-A of  the Act. Although 30 days from the notification under  Section  4(1)  are  given  for  filing  objections  under  Section  5-A,  inquiry  thereunder  unduly  gets  prolonged.  It  is  difficult  to  see  why  the  summary  inquiry  could  not  be  completed  quite  expeditiously.  Nonetheless,  this Court held the existence of prima  facie public purpose such as the one present in those  cases  before  the  Court  could  not  be  successfully

challenged at all by the objectors. It further held that it  was  open to  the  authority  to  take  summary  inquiry  under  Section  5-A  and  to  complete  inquiry  very  expeditiously. It was emphasised that:

“... The mind of the officer or authority concerned  has to be 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.”

16. It would thus be seen that this Court emphasised  the holding of an inquiry on the facts peculiar to that  case.  Very  often  the  officials,  due  to  apathy  in  implementation of the policy and programmes of the  Government,  themselves  adopt  dilatory  tactics  to  create cause for the owner of the land to challenge  the validity or legality of the exercise of the power to  defeat  the  urgency  existing  on  the  date  of  taking  decision under Section 17(4) to dispense with Section  5-A inquiry.

17.  It is true that there was pre-notification and post- notification delay on the part of the officers to finalise  and  publish  the  notification.  But  those  facts  were  present  before  the  Government  when  it  invoked  urgency  clause  and  dispensed  with  inquiry  under  Section 5-A. As held by this Court, the delay by itself  accelerates the urgency: Larger the delay, greater be  the urgency. So long as the unhygienic conditions and  deplorable  housing  needs  of  Dalits,  Tribes  and  the  poor are not solved or fulfilled, the urgency continues  to subsist. When the Government on the basis of the  material,  constitutional  and  international  obligation,  formed its opinion of urgency, the court, not being an  appellate forum, would not disturb the finding unless  the court conclusively finds the exercise of the power  mala fide. Providing house sites to the Dalits, Tribes  and  the  poor  itself  is  a  national  problem  and  a  constitutional obligation. So long as the problem is not  solved  and  the  need  is  not  fulfilled,  the  urgency  continues to subsist. The State is expending money to

relieve the deplorable housing condition in which they  live by providing decent housing accommodation with  better sanitary conditions. The lethargy on the part of  the officers for pre and post-notification delay would  not  render  the  exercise  of  the  power  to  invoke  urgency clause invalid on that account.”

22. A  three-Judge  Bench  of  this  Court  in  Meerut  

Development Authority & Ors. v.  Satbir  Singh and Ors.9 held  

that  the  acquisition  for  housing  development  is  an  urgent  

purpose and exercise of power under Section 17(4) dispensing  

with the enquiry under Section 5A is not invalid.

23. In Om Prakash and Anr. v. State of U.P. and Ors.10,   

the question presented before this Court for consideration was,  

inter  alia,  whether   the  State  Government  was  justified  in  

invoking urgency clause under Section 17(1)  and dispensing  

with the enquiry under Section 5A  for acquisition of the land for  

residential  and  industrial  purpose  for  the  purposes  of  New  

Okhla Industrial Development Authority (NOIDA). The argument  

on  behalf  of  the  appellants  therein  was  that  there  was  no  

relevant material with the appropriate government to enable it  

to arrive at its subjective satisfaction about dispensing with the  

enquiry  under  Section  5A  in  connection  with  the  subject  

9 (1996) 11 SCC 462 10 (1998) 6 SCC 1

acquisition  and  there  was  delay  of  more  than  one  year  in  

issuance  of  declaration  under  Section  6  after  issuance  and  

publication of notification under Section 4 read with Section 17  

of the Act. This Court observed :  

“…….Even  that  apart,  if  that  was  the  urgency  suggested  by  NOIDA  on  14-12-1989,  we  fail  to  appreciate  as  to  how  the  State  authorities  did  not  respond  to  that  proposal  equally  urgently  and  why  they  issued  notification  under  Section  4  read  with  Section 17(4) after one year in January 1991. On this  aspect, no explanation whatsoever was furnished by  the  respondent-State  authorities  before  the  High  Court.  It  is  also  interesting  to  note  that  even  after  dispensing with inquiry under Section 5-A pursuant to  the exercise of  powers under Section 17(4) on 5-1- 1991, Section 6 notification saw the light of day only  on 7-1-1992. If the urgency was of such a nature that  it could not brook the delay on account of Section 5-A  proceedings,  it  is  difficult  to  appreciate  as  to  why  Section  6  notification  in  the  present  case  could  be  issued  only  after  one  year  from  the  issuance  of  Section 4 notification. No explanation for this delay is  forthcoming on record. This also shows that according  to  the  State  authorities,  there  was  no real  urgency  underlying dispensing with Section 5-A inquiry despite  NOIDA suggesting at  the top of  its  voice about the  need  for  urgently  acquiring  the  lands  for  the  development of Sector 43 and other sectors.”

Noticing the conflict in the decisions of this Court in  Narayan  

Govind Gavate3 and Pista Devi6, the Bench said :

“20. It is no doubt true that the aforesaid decision of  the three-Judge Bench of this Court was explained by  a  latter  two-Judge  Bench  decision  of  this  Court  in  State  of  U.P. v.  Pista  Devi,  (1986)  4  SCC 251, as

being  confined  to  the  fact  situation  in  those  days  when it was rendered. However, it is trite to note that  the latter Bench of two learned Judges of this Court  could not have laid down any legal proposition by way  of a ratio which was contrary to the earlier decision of  the three-Judge Bench in Narayan Govind Gavate. In  fact,  both  these  decisions  referred  to  the  fact  situations in the light of which they were rendered.”

24. In the case of  Union of India and Ors. v.  Mukesh  

Hans11, a three-Judge Bench of this Court while dealing with the  

interpretation of Section 17(4) of the Act and the procedure to  

be  followed by the  appropriate  government  while  dispensing  

with the enquiry contemplated under Section 5A of the Act said:  

31. 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-section  (1)  or  (2)  of  Section  17,  it  may  direct  that  the  provisions of Section 5-A shall not apply and if such  direction  is  given  then  Section  5-A  inquiry  can  be  dispensed with and a declaration may be made under  Section 6 on publication of  Section 4(1)  notification  and possession can be made.

32. 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  

11 (2004) 8 SCC 14

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  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 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  under  Section  17(1)  and  unforeseen  emergency  contemplated  under  Section  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  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 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.

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  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  dispensation  with  an  inquiry  under  Section  5-A.  We are  unable  to  agree  with  the  above  argument  because sub-section (4) of Section 17 itself 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  (1)  or  unforeseen  emergency  under  sub-section  (2)  of  Section 17,  the Government  will  ipso facto have to  direct the dispensation of the inquiry. For this we do  find support from a judgment of this Court in the case  of Nandeshwar Prasad v. State of U.P., (1964) 3 SCR  425,  wherein considering the language of Section 17  of the Act which was then referable to waste or arable  land and the U.P. Amendment to the said section, this  Court held thus:  

“It will  be seen that Section 17(1) gives power to  the Government to direct the Collector, though no  award has been made under Section 11, 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  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  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).  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 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  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 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 with respect to land which is not  waste or arable and on which buildings stand.”   

(emphasis  supplied)

34. A careful reading of the above judgment shows  that this Court in the said Nandeshwar Prasad case  has also held that there should be an application of  mind to the facts of the case with special reference  to this concession of Section 5-A inquiry under the  Act.

35. At  this  stage,  it  is  relevant  to  notice  that  the  limited  right  given  to  an  owner/person  interested  under  Section  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 under Section 17(4) of the Act. The object  and importance of Section 5-A inquiry was noticed  by this Court in the case of Munshi Singh v. Union of  India,  (1973) 2 SCC 337,   wherein this Court held  thus:  

“7.  Section  5-A  embodies  a  very  just  and  wholesome  principle  that  a  person  whose  property is being or is intended to be acquired  should  have  a  proper  and  reasonable

opportunity  of  persuading  the  authorities  concerned  that  acquisition  of  the  property  belonging to that person should not be made.  ...  The  legislature  has,  therefore,  made  complete provisions for 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-A:”

36. It  is  clear  from the  above  observation  of  this  Court  that  right  of  representation  and  hearing  contemplated under Section 5-A of the Act is a very  valuable right of a person whose property is sought  to be acquired and he should have appropriate and  reasonable opportunity of persuading the authorities  concerned  that  the  acquisition  of  the  property  belonging  to  that  person  should  not  be  made.  Therefore,  in  our  opinion,  if  the  appropriate  Government decides to take away this minimal right  then  its  decision  to  do  so  must  be  based  on  materials on record to support the same and bearing  in mind the object of Section 5-A.”

25. In Union of India and Ors. v. Krishan Lal Arneja and  

Ors.12, the issue under consideration before this Court related to  

the validity of notification for the acquisition of the land for a  

public purpose, inter alia,  ‘housing of the government offices’  

and ‘residential use of government servants’ invoking Section  

17(1) and (4). This Court emphasized that failure to take timely  

action for acquisition by the authorities cannot be a ground to  

12 (2004) 8 SCC 453

invoke the urgency clause to the serious detriment to the right  

of the land owner to raise objections to the acquisition under  

Section  5A.   It  was  observed  that  Gurdial  Singh4 is  not  an  

authority for the proposition that in the absence of material to  

justify  urgency  clause,  long  delay  in  issuing  the  notification  

could be ignored or  condoned to  uphold the validity of  such  

notification.

26. In  Hindustan Petroleum Corporation Ltd. v.  Darius  

Shapur Chenai and Ors.13, this Court observed that Section 5A  

of the Act confers a valuable right in favour of a person whose  

lands are sought to be acquired. It was further observed that  

the  Act  is  an  expropriatory  legislation  and,  therefore,  its  

provisions should be strictly construed as it deprives a person  

of his land without consent.

27. This Court in the case of  Mahadevappa Lachappa  

Kinagi and Ors. v.  State of Karnataka and Ors.14 posited that  

Section  17  of  the  Act  confers  extraordinary  powers  on  the  

authorities  under  which  it  can  dispense  with  the  normal  

procedure laid down under Section 5A of the Act in cases of  

exceptional  urgency  and  that  such  powers  cannot  be  lightly  

13 (2005) 7 SCC 627 14 (2008) 12 SCC 418

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.  That  case  related  to  the  

acquisition of land for the rehabilitation of 145 families uprooted  

because of commissioning of barrage of Bhima River.  It  was  

held  that  the  case  indicated  an  exceptional  case  where  

exceptional power under Section 17 could be invoked.

28. Now, two recent decisions of this Court need to be  

noticed.  In Babu Ram and Anr. v. State of Haryana and Anr.15,   

this Court was concerned with the legality of the notification for  

acquisition of land for construction of sewage treatment plant.  

The appropriate government invoked its power under Section  

17(2)(c)  and  by  invoking  its  power  under  Section  17(4)  

excluded the application of Section 5A of the Act. After referring  

to few decisions of this Court, particularly,  Gurdial Singh4 and  

Om Prakash10, it was observed that these decisions assign a  

great  deal  of  importance  to  the  right  of  a  citizen  to  file  

objections under Section 5A of the Act and the fact that such  

right was elevated to the status of a fundamental right is in itself  

sufficient  to  indicate  that  great  care  had to  be taken  by the  

15 (2009) 10 SCC 115

authorities before resorting to Section 17(4) of the Act and they  

have to satisfy themselves that there was an urgency of such  

nature  which  could  brook  no  delay  whatsoever.  In  another  

case, viz.;  Tika  Ram and Ors. v.  State of Uttar Pradesh and  

Ors.16, constitutional validity of the provisions of Sections 17(1),  

17(1A),  17(3A),  17(4)  and  the  proviso  to  Section  17(4)  as  

amended by U.P. Act 5 of 1991 was under challenge besides  

the various other provisions of the Act.  This Court overruled  

the  challenge  to  the  constitutionality  of  the  aforenoticed  

provisions. As regards invocation of power under Section 17 of  

the Act and doing away with Section 5A enquiry, it was held :

“115. While  considering  as  to  whether  the  Government  was  justified  in  doing  away  with  the  inquiry under Section 5-A, it must be noted that there  are no allegations of mala fides against the authority.  No evidence has been brought before the judgment  and the High Court has also commented on this. The  housing development and the planned developments  have been held to be the matters of great urgency by  the Court in  Pista Devi case. In the present case we  have seen the judgment of the High Court which has  gone into the records and has recorded categorical  finding  that  there  was  sufficient  material  before  the  State  Government  and  the  State  Government  has  objectively  considered  the  issue  of  urgency.  Even  before this Court, there were no allegations of mala  fides.  A notice can be taken of the fact that all  the  lands  which  were  acquired  ultimately  came  to  be  utilised  for  the  Scheme.  We,  therefore,  reject  the  

16 (2009) 10 SCC 689

argument  that  there  was  no  urgency  to  justify  dispensation  of  Section 5-A inquiry  by applying  the  urgency clause”.

29. `Eminent  domain’ is right or power of a sovereign  

State  to  appropriate  the  private  property  within  the  territorial  

sovereignty  to  public  uses or  purposes.     It  is  exercise  of  

strong  arm  of  government  to  take  property  for  public  uses  

without  owner’s  consent.   It  requires  no  constitutional  

recognition; it is an attribute of  sovereignty and essential to the  

sovereign  government.  (Words  and  Phrases,  Permanent  

Edition, Volume 14, 1952 (West Publishing Co.,).

30. The power of eminent domain, being inherent in the  

government,  is  exercisable  in  the  public  interest,  general  

welfare and for public purpose. Acquisition of private property  

by  the  State  in  the  public  interest  or  for  public  purpose  is  

nothing but an enforcement of the right of eminent domain. In  

India,  the  Act  provides  directly  for  acquisition  of  particular  

property  for  public  purpose.   Though right  to  property  is  no  

longer  fundamental  right  but  Article  300A of  the  Constitution  

mandates that no person shall be deprived of his property save  

by  authority  of  law.   That  Section  5A  of  the  Act  confers  a

valuable right to an individual is beyond any doubt. As a matter  

of fact, this Court has time and again reiterated that Section 5A  

confers an important right in favour of a person whose land is  

sought  to  be acquired.   When the  government  proceeds  for  

compulsory acquisition of particular property for public purpose,  

the only  right  that  the owner or  the person interested in  the  

property has, is to submit his objections within the prescribed  

time  under  Section  5A  of  the  Act  and  persuade  the  State  

authorities  to  drop  the  acquisition  of  that  particular  land  by  

setting forth the reasons such as the unsuitability of the land for  

the  stated  public  purpose;  the  grave  hardship  that  may  be  

caused to him by such expropriation, availability of alternative  

land  for  achieving  public  purpose  etc.   Moreover,  right  

conferred on the owner or person interested to file objections to  

the proposed acquisition is not only an important and valuable  

right but  also makes the provision for compulsory acquisition  

just and in conformity with the fundamental principles of natural  

justice.  The exceptional and extraordinary power of doing away  

with an enquiry under Section 5A in a case where possession  

of the land is required urgently or in 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 5A. 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 5A on the  

aspect  whether the urgency is of  such a nature that  justifies  

elimination of summary enquiry under Section 5A. A repetition  

of statutory phrase in the notification that the state government  

is satisfied that the land specified in the notification is urgently  

needed and provision contained in Section 5A shall not apply,  

though  may  initially  raise  a  presumption  in  favour  of  the  

government  that  pre-requisite  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 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 dispensing with the  

enquiry under Section 5A 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 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.   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 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 5A may not be held and  

objections  of  land  owners/persons  interested  may  not  be  

considered.   In  many  cases  on  general  assumption,   likely  

delay in completion of enquiry under Section 5A  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 taken away and with  

some effort enquiry could always be completed expeditiously.

The special provision has been made in Section 17 to eliminate  

enquiry  under  Section  5A  in  deserving  and  cases  of  real  

urgency.  The government has to apply its mind on the aspect  

that urgency is of such nature that necessitates dispensation of  

enquiry  under  Section  5A.   We  have  already  noticed  few  

decisions of  this  Court.   There is  conflict  of  view in  the  two  

decisions  of  this  Court  viz.;  Narayan  Govind  Gavate3  and  

Pista Devi6.   In Om Prakash10 this Court held that decision in  

Pista Devi6 must be 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 Gavate3.  We agree.  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 5A.

31. In a country as big as ours, the roof over head is a  

distant  dream  for  large  number  of  people.   The  urban  

development  continues to be haphazard.   There is no doubt  

that planned development and housing are matters of priority in  

developing nation.  The question is as to whether in all cases of  

‘planned development  of  the  city’  or  ‘for  the  development  of  

residential area’, the power of urgency may be invoked by the  

government and even where such power is invoked, should the  

enquiry  contemplated  under  Section  5A  be  dispensed  with  

invariably.  We do not think so. Whether `planned development  

of city’ or `development of residential area’ cannot brook delay  

of few months to complete the enquiry under Section 5A?  In  

our opinion, ordinarily it can.  The government must, therefore,  

do a balancing act and resort to the special power of urgency  

under Section 17 in the matters of acquisition of land for the  

public  purpose  viz.;  ‘planned  development  of  city’  or  ‘for  

development of residential area’ in exceptional situation.  Use  

of the power by the government under Section 17 for `planned  

development of the city’ or `the development of residential area’  

or  for  `housing’  must  not  be  as  a  rule  but  by  way  of  an  

exception.   Such exceptional situation may be for the public

purpose viz., rehabilitation of natural calamity affected persons;  

rehabilitation of persons uprooted due to commissioning of dam  

or housing for lower strata of the society urgently; rehabilitation  

of persons affected by time bound projects, etc.  The list is only  

illustrative and not exhaustive.  In any case, sans real urgency  

and need for immediate possession of the land for carrying out  

the  stated  purpose,  heavy  onus  lies  on  the  government  to  

justify exercise of such power. It must, therefore, be held that  

the use of the power of urgency and dispensation of enquiry  

under Section 5A by the government in a routine manner for the  

‘planned  development  of  city’  or  ‘development  of  residential  

area’ and thereby depriving the owner or person interested a  

very valuable right under Section 5A may not meet the statutory  

test nor could be readily sustained.  

32. Adverting now to the facts of  the present  case, it  

would  be  seen  that  somewhere  in  February,  2000,  a  Land  

Selection Committee was constituted to identify the availability  

of  land for a housing colony by the GDA. In April,  2001, the  

Committee  so  constituted  inspected  the  site  and  proposed  

acquisition of land in Village Manbela and few other villages but  

nothing further was done as the tenure holders opposed the

acquisition of their  land and the Commissioner,  Gorakhpur in  

public  interest  stayed  proposal  for  acquisition.   Abruptly  the  

notifications  for  the  proposed  acquisition  were  issued  on  

November 22, 2003/February 20, 2004   under Section 4 of the  

Act.  In these notifications urgency clause was invoked and the  

enquiry under Section 5A was dispensed with.  Then, for more  

than one year nothing was done.  It was only on December 28,  

2004  that  a  declaration  under  Section  6  was  made.   If  the  

matter  could  hang  on  from  April,  2001  to  November  22,  

2003/February 20, 2004 before the notifications under Section  

4 were issued and for about a year thereafter in issuance of  

declaration  under  Section  6,  acquisition  proceedings  could  

have  been  arranged  in  a  manner  so  as  to  enable  the  land  

owners  and/or  the  interested  persons  to  file  their  objections  

under Section 5A within the prescribed time and complete the  

enquiry expeditiously. It is true that insofar as Uttar Pradesh is  

concerned,  there  is  amendment  in  Section  17.   Sub-section  

(1A) enables the Government to take possession under sub-

section  (1)  of  Section  17  if  the  land  is  required  for  public  

purpose viz.; ‘planned development’.  Yet for forming an opinion  

that  provisions  of  Section  5A  shall  not  apply,  the  state

government must apply its mind that urgency is of such nature  

warranting elimination of enquiry under Section 5A.  Although  

some  correspondence  between  the  authorities  and  the  

government was placed before the High Court by the GDA, but  

no  material  has  been  placed  on  record  by  the  State  

Government either before the High Court or before this Court  

indicating the application of mind that the urgency was of such  

nature which warranted elimination of the enquiry under Section  

5A of the Act.   It  is interesting to note that GDA wanted the  

subject  land to be acquired because their  land bank had no  

land and they wanted land to keep the  Authority running.  If  

profit-making and the sustenance of the Development Authority  

was the motive, surely  urgency was not of such nature that it  

could  brook  no  delay  whatsoever.   In  the  facts  and  

circumstances of the present case, therefore, the Government  

has completely failed to justify the dispensation of an enquiry  

under Section 5A by invoking Section 17(4).  For this reason,  

the impugned notifications  to the extent they state that Section  

5A shall  not  apply  suffer  from legal  infirmity.   The question,  

then,  arises whether at this distance of time, the acquisition  

proceedings must be declared invalid and illegal.  In the written

submissions of  the  GDA,  it  is  stated  that  subsequent  to  the  

declaration made under Section 6 of the Act in the month of  

December,  2004,  award has been made and out  of  the 400  

land  owners  more  than  370  have  already  received  

compensation. It is also stated that out of the total cost of Rs.  

8,85,14,000/- for development of the acquired land, an amount  

of Rs. 5,28,00,000/-  has already been spent by the GDA and  

more than 60% of work has been completed.  It, thus, seems  

that  barring  the  appellants  and  few  others  all  other  tenure  

holders/land owners have accepted the `takings’ of their land.  

It is too late in the day to undo what has already been done.  

We are of the opinion, therefore, that in the peculiar facts and  

circumstances of the case, the appellants are not entitled to any  

relief although dispensation of enquiry under Section 5A was  

not justified.

33. On  behalf  of  the  appellants,  it  was  vehemently  

argued that the government may be directed to release their  

land  from  proposed  acquisition.  It  was  submitted  by  the  

appellants  that  houses/structures  and  buildings  (including  

educational building) are existing on the subject land and as per  

the policy framed by the State Government, the land deserves

to  be  exempted  from  acquisition.   The  submission  of  the  

appellants has been countered by the respondents and in the  

written  submissions  filed  by  the  GDA,  it  is  stated  that  the  

houses/structures  and  buildings  which  are  claimed  to  exist,  

have  been  raised  by  the  appellants  subsequent  to  the  

notification under Section 4(1) of the  Act and, therefore, they  

are not entitled to release of their land from acquisition.  In our  

view, since the existence of houses/structures and buildings as  

on November 22, 2003/February 20, 2004  over the appellants’  

land has been seriously disputed, it may not be appropriate to  

issue any direction to the State Government, as prayed for by  

the  appellants,  for  release  of  their  land  from  acquisition.  

However, as the possession has not been taken, the interest of  

justice would be subserved if the appellants are given liberty to  

make  representation  to  the  State  authorities  under  Section  

48(1) of the Act for release of their land.  We, accordingly, grant  

liberty to the appellants to make appropriate representation to  

the State Government and observe that if such representation  

is made by the appellants within two months from today,  the  

State  Government  shall  consider  such  representation  in  

accordance with law and in conformity with the State policy for

release of land under Section 48(1) without any discrimination  

within three months from receipt of such representation.

34. In the result, these appeals fail and are dismissed,  

subject  to  the  liberty  reserved  to  the  appellants  for  making  

representations under Section 48 (1) of the Act.

35. I.A.  for  impleadment  is  rejected  and  I.A.  for  

discharge of Advocate – Mr. S.C. Birla is allowed.

36. No order as to costs.

……………………J (R.V. Raveendran)

…….……………..J         (R. M. Lodha)

New Delhi July  28, 2010