IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6864   OF 2009 (Arising out of S.L.P.(C) NO.14302 of 2008)

Babu Ram & Anr.  … Appellants  Vs.

State of Haryana & Anr.     … Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The appellants herein are residents of Narwana,  

District Jind, in the State of Haryana and claim to  

be the owners of land measuring 34 Kanals 2 Marlas  

situated  at  Jind  Patiala  Road  near  the  Railway  

Crossing, Narwana, adjoining the New Grain Market  

at  Narwana.  Subsequent  to  the  acquisition  of

certain lands in the said area in 1995, the State  

of Haryana issued another Notification dated 23rd  

November,  2005,  bearing  No.12/8/05-PH  1,  under  

Section 4 read with Section 17(2)(c) of the Land  

Acquisition Act, 1894 (hereinafter referred to as  

the  “L.A.  Act”),  for  construction  of  a  Sewage  

Treatment Plant.  In the said Notification, it was  

indicated that the land was required on an urgent  

basis  within  the  meaning  of  Sub-Section  (4)  of  

Section 17 of the L.A. Act, thereby excluding the  

application  of  Section  5-A  of  the  said  Act.  

According to appellants while invoking the emergent  

provisions under Section 17 of the aforesaid Act,  

no reason was indicated to exclude the operation of  

Section 5-A of the Act. The said Notification under  

Section  4  was  followed  by  another  Notification  

dated 2nd January, 2006 under Section 6 of the L.A.  

Act.  In the said Notification it also was made  

clear  that  the  Land  Acquisition  Collector-cum-

District Revenue Officer, Jind, Haryana proposed to  

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take possession of the land in question as the land  

was to be acquired urgently.   

3. Aggrieved  by  the  decision  of  the  State  

Government to acquire the land for construction of  

the Sewage Treatment Plant, the Mitaso Educational  

Society Narwana, filed a suit against the State of  

Haryana  to  restrain  the  defendant  therein,  

including the State of Haryana from constructing  

the Sewage Treatment Plant in front of the school  

and on 15th February, 2006, an interim order was  

passed in the suit restraining the defendants from  

constructing the said Plant as the same was likely  

to be a health-hazard for the inhabitants of the  

locality.  In yet another civil suit filed by one  

Jagroop  against  the  State  of  Haryana,  the  

Additional Civil Judge, Senior Division, Narwana,  

restrained the defendants by its order dated 12th  

April, 2006 from constructing the Sewage Treatment  

Plant.   

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4. Having been denied the opportunity of filing an  

objection under Section 5-A of the L.A. Act, the  

appellants also filed a writ petition in the Punjab  

&  Haryana  High  Court  challenging  the  two  

Notifications under Sections 4 and 6 of the L.A.  

Act on several grounds.  One of the grounds taken  

was that the lands in question could not be used  

for the installation of a Sewage Treatment Plant  

owing  to  its  close  proximity  to  the  residential  

colony, the New Grain Market and a school in the  

adjoining  plots.  Furthermore,  an  earlier  

Notification issued under Sections 4 and 6 of the  

L.A. Act in the year 1995 had also been challenged  

in Civil Writ Petition No.1222 of 1997 before the  

High  Court,  wherein  an  order  of  status  quo  was  

passed on 28th January, 1997.  It has been submitted  

that  the  said  writ  petition  is  still  pending  

disposal in the said High Court.  In the subsequent  

writ petition out of which this appeal arises, the  

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appellants herein, inter alia, prayed for quashing  

of the two Notifications dated 23rd November, 2005  

and 2nd January, 2006 issued under Section 4 read  

with Clause (c) of Sub-Section (2) of Section 17  

and Section 6 of the L.A. Act, 1894 on the ground  

that the same were arbitrary and contrary to the  

provisions of the Act.  A prayer was also made for  

a writ in the nature of Mandamus to direct the  

respondents in the writ petition not to dispossess  

the appellants herein from the land in question.   

5. The writ petition was taken up for hearing on  

14th February, 2008. Negating the contention of the  

appellants/writ  petitioners  that  they  had  been  

wrongly  deprived  of  their  right  to  file  an  

objection  to  the  proposed  acquisition  of  their  

lands under Section 5-A of the L.A. Act, the Writ  

Court came to the conclusion that the provisions of  

Section 4 read with Section 17 had been religiously  

observed  and  followed  by  the  Notification  under  

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Section 6, pursuant to which Award was announced on  

23rd May, 2006.        

6. While dismissing the writ petition, the High  

Court sought to distinguish the decision of this  

Court in Union of India vs. Mukesh Hans [(2004) 8  

SCC 14], which had been cited on behalf of the writ  

petitioners/appellants herein in support of their  

contention that the right given to a land owner or  

person  interested  in  the  land  was  not  an  empty  

formality but a substantive right which could not  

be taken away, except for good and valid reason  

within  the  limitations  prescribed  under  Section  

17(4) of the L.A. Act, 1894.  In the said decision,  

this Court had pointed out that mere existence of  

an  urgency  or  unforeseen  emergency  was  not  

sufficient  in  itself  to  dispense  with  the  

provisions  of  Section  5-A  of  the  aforesaid  Act.  

The said right could be dispensed with only after  

the appropriate Government forms an opinion that  

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along with the existence of urgency under Section  

17(1) or unforeseen emergency under Section 17(2),  

there  was  also  a  need  to  dispense  with  the  

provisions of Section 5-A.

7. The Special Leave Petition (now Civil Appeal)  

has been filed by the appellants questioning the  

dismissal of their writ petition.

8. Appearing  in  support  of  the  appeal,  learned  

Senior Advocate Mr. Pradip Ghosh, submitted that  

the present acquisition proceeding was the second  

phase of acquisition of land purportedly for the  

purpose  of  setting  up  a  Sewage  Treatment  Plant  

(STP).   He  submitted  that  similar  Notifications  

under Sections 4 and 6 of the L.A. Act, 1894 had  

been published in 1995-96 for acquisition of land,  

measuring  42  acres,  2  kanals,  8.75  marlas,  

belonging to the appellants and adjoining the lands  

now sought to be acquired under the Notification  

dated  23rd November,  2005  issued  under  Section  4  

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read  with  Sections  17(2)(c)  and  17(4)  of  the  

aforesaid Act, for the selfsame purpose.   

9. As  will  be  evident  from  the  aforesaid  

Notification, the provisions of Section 5-A were  

dispensed with.  Thereafter, on 2nd January, 2006, a  

Notification under Section 6 of the Act was issued  

indicating the intention of the Respondent No.2 to  

take possession of the land immediately.  The said  

Notification was followed by a Notification under  

Section 9 dated 5th May, 2006 mentioning that the  

Award of the acquisition would be pronounced on 23rd  

May, 2006.  Mr. Ghosh submitted that in view of the  

said Notification under Section 9 of the above Act,  

the appellants were advised to file a suit before  

the  Civil  Judge  (Senior  Division),  Narwana,  to  

restrain the respondents from constructing a STP as  

the  same  would  be  a  health  hazard  for  the  

inhabitants of the locality.  Such suit was filed  

on 15th February, 2006.  Subsequently, another suit  

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for the same reliefs was filed by one Jagroop on  

12th April,  2006,  before  the  learned  Additional  

District Judge (Senior Division), Narwana, who was  

pleased  to  restrain  the  respondents  from  

constructing the STP.  In addition to the above,  

the appellants filed Writ Petition CWP No.8332 of  

2006  before  the  Punjab  and  Haryana  High  Court,  

praying for quashing of the Notification dated 23rd  

November, 2005 and for restraining the respondents  

from dispossessing the writ petitioners.  It is out  

of the final disposal of the said writ petition  

that the present appeal has arisen.

10. Initially, the High Court directed the parties  

to  maintain  status  quo  with  regard  to  the  writ  

petitioners’  lands.   Subsequently,  as  indicated  

hereinabove, the writ petition was dismissed on 14th  

April, 2008.  

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11. Mr. Ghosh submitted that no urgency of such  

compelling  nature  had  been  disclosed  by  the  

respondents that warranted the invoking of Section  

17(4) of the L.A. Act, 1894.  On the other hand, by  

denying the appellants the opportunity of filing  

objections under Section 5-A of the L.A. Act, 1894,  

the respondents had tried to play down the fact  

that the STP was being constructed next to a school  

and grain market which would prove to be a health-

hazard, not only for the students of the school,  

but for the inhabitants of the area in general.  

12. In addition, Mr. Ghosh also submitted that in  

the  plan  which  had  been  prepared  by  the  Town  

Planning  Department,  it  had  been  shown  that  the  

lands  to  be  acquired  were  to  be  used  for  

residential  and  commercial  purposes  and  another  

plot had been earmarked for the Sewage Treatment  

Plant.  The change of user and the setting up of a  

STP would severely prejudice the local inhabitants.  

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13. In  support  of  his  submissions  that  certain  

parameters  have  to  be  followed  by  the  acquiring  

authorities  for  the  purpose  of  invoking  the  

provisions of Section 17(4) of the L.A. Act, Mr.  

Ghosh  firstly  referred  to  the  decision  of  this  

Court  in  Union  of  India vs.  Krishan  Lal  Arneja  

[(2004)  8  SCC  453),  wherein  while  dealing  with  a  

similar situation, this Court observed as follows :-

“16. Section  17  confers  extraordinary  powers on the authorities under which it  can  dispense  with  the  normal  procedure  laid down under Section 5-A 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  landowner  of  his  right in relation to immovable property to  file  objections  for  the  proposed  acquisition and it also dispenses with the  inquiry under Section 5-A 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  

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minimum period within which the objections  could be received from the landowners and  the inquiry under Section 5-A 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.”

Referring to two other decisions of this Court  

in (1) State of Punjab vs. Gurdial Singh [(1980) 2  

SCC 471]; and (2)  Om Prakash vs.  State of U.P.  

[(1998) 6 SCC 1], this Court also observed that it  

was fundamental that compulsory taking of a man’s  

property is a serious matter and the smaller the  

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man the more serious the matter.  In fact, in  Om  

Prakash’s case (supra), this Court went one step  

further in observing that according to the decision  

in  Gurdial  Singh’s  case  (supra),  enquiry  under  

Section 5-A is not merely statutory, but also has a  

flavour of fundamental rights under Articles 14 and  

19 of the Constitution.    

14. Various other decisions in the same vein were  

cited by Mr. Ghosh which only go to reiterate the  

propositions  laid  down  in  the  above-mentioned  

cases.  

15. It was lastly submitted by Mr. Ghosh that in  

the  Written  Statement  filed  on  behalf  of  the  

respondents herein before the Punjab & Haryana High  

Court in the Writ Petition filed by the appellants,  

nothing has been disclosed with regard to urgency  

which  prompted  the  said  respondents  to  take  

recourse to the provisions of Section 17(4) of the  

L.A. Act, 1894.   On the other hand, in paragraph 6  

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of the said Written Statement it has been sought to  

be mentioned that if the appellants herein had any  

grievance with regard to the impugned Notification  

under Section 4, it was the duty of the appellants  

to have filed objections.   It was further stated  

that  having  failed  to  file  objections,  the  

appellants  had  waived  their  right  since  the  

respondents had never denied the appellants their  

right to file objections.  Mr. Ghosh submitted that  

such a stand clearly reveals the non-application of  

mind by the concerned authorities since invocation  

of  Section  17(4)  of  the  L.A.  Act  prevented  the  

appellants  from  filing  objections.    Mr.  Ghosh  

submitted that the respondents ought not to have  

dealt with the matter in such a perfunctory manner  

since  the  appellants  had  no  other  forum  to  

vindicate  their  grievances  relating  to  the  

compulsory acquisition of their lands.  

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16. Appearing for the State of Haryana, Mr. Manoj  

Swarup, learned Advocate, denied the allegations of  

malafides  made  on  behalf  of  the  appellants  and  

contended that it was, in fact, the appellants who  

were  guilty  of  having  suppressed  the  extremely  

relevant fact that they had filed a Civil Suit in  

respect of the self-same cause of action in the  

Court  of  the  Additional  Civil  Judge  (Senior  

Division), Narwana, in which they had prayed for a  

decree  of  permanent  injunction  to  restrain  the  

respondents herein from constructing the STP in any  

direction near the school run by the appellants in  

the name and style of ‘Chaudhary Devi Lal Memorial  

Public School, Uklana Road, Narwana.  Mr. Swarup  

submitted that although the Written Statement filed  

on behalf of the Respondent Nos.1 and 2 had been  

amended, the same was not placed on the record and  

only  the  unamended  Written  Statement  was  filed.  

Mr.  Swarup  then  contented  that,  in  fact,  the  

Written Statement had never been amended, but an  

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Additional  Written  Statement  had  been  filed  on  

account of amendment effected to the writ petition.  

From  paragraph  6  of  the  Additional  Written  

Statement, Mr. Swarup pointed out that not one but  

three STPs were planned at different locations at  

Narwana for which three different sites had been  

acquired.   The STP forming the subject matter of  

the present appeal is, in effect, only one of them.  

The decision to set up such a STP was the result of  

accumulation of sewage water which had the ultimate  

effect  of  polluting  the  ground  water.   It  was  

submitted  that  the  site  in  question  for  the  

construction of the STP had been selected after a  

thorough survey of the area in which the land in  

question was found to be most suitable.  Mr. Swarup  

urged that the decision to set up STPs in Narwana  

was in response to a public demand for the laying  

down of a Sewage Treatment Plant since the local  

inhabitants were facing great difficulty in dealing  

with  the  accumulation  of  sewage  water.  It  was  

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submitted  that  the  interests  of  a  few  as  

represented by the appellants, would have to give  

way to the larger public interest to benefit the  

entire population of the area.

17. It was also submitted by Mr. Swarup that the  

suit  in  question  had  been  withdrawn  after  

objections had been taken by the respondents, but  

no  liberty  had  been  asked  for  or  taken  for  

commencing a fresh proceeding on the same cause of  

action.   Mr.  Swarup  also  questioned  the  locus  

standi of the school to file a suit in respect of  

the land belonging to the appellants.  

18. In  conclusion,  Mr.  Swarup  referred  to  the  

decision  of  this  Court  in  Municipal  Council,  

Ahmednagar vs. Shah Hyder Beig & Ors. [(2000)  2  

SCC 48], which dealt with the question of delay in  

challenging  the  notice  issued  under  the  Land  

Acquisition Act, 1894.  In the said decision, this  

Court  held  that  long  after  the  Award  had  been  

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passed in the L.A. proceedings and compensation had  

been made over to the Requiring Authority, a writ  

petition  challenging  the  notices  issued  under  

Sections  4  and  6  of  the  L.A.  Act  was  not  

maintainable.   Mr. Swarup urged that in the facts  

and circumstances of the case, no interference was  

called for with the decision of the High Court.  

19. From the submissions advanced on behalf of the  

parties  and  the  materials  on  record,  two  points  

emerge for decision in the instant appeal.  The  

first  point  to  be  considered  is  whether  the  

provisions of Section 17(4) of the L.A. Act, 1894,  

had been validly invoked by the respondents for the  

purpose of acquiring the lands in question for the  

Sewage Treatment Plant.  The other point which is  

linked with the first point is whether the choice  

of site for setting up the STP would prove to be  

hazardous for the inhabitants of Narwana.   

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20. If  an  opportunity  had  been  given  to  file  

objections to the proposed acquisition, the second  

question would have been resolved while deciding  

the objections under Section 5-A of the L.A. Act,  

1894.   Unfortunately, the provisions of Section  

17(4) were invoked in relation to a project which  

could have serious consequences to the health of  

the general public of the area.  Although, it has  

been urged on behalf of the respondents that the  

decision  to  set  up  the  three  Sewage  Treatment  

Plants  at  Narwana  was  in  response  to  a  public  

demand  to  install  sewage  drains  and  the  present  

site had been chosen to be the most suitable for a  

STP, it has not been denied that the proposed STP  

is to be situated in the vicinity of a school and  

grain  market  which  are  both  hubs  of  community  

activities.  

21. In the present case, we are not concerned with  

technicalities  but  the  likelihood  of  a  health-

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hazard to the inhabitants of the area if the STP  

was set up in the acquired site.   The stand taken  

by the respondent that the appellants could have  

filed  objections  to  the  proposed  acquisition  is  

difficult  to  appreciate  since  the  right  to  file  

such objections had, in fact, been taken away by  

invoking  the  provisions  of  Section  17(4)  of  the  

L.A. Act.  Such a stand taken on behalf of the  

respondent authorities only serve to strengthen the  

case of the appellants that an opportunity should  

have been given to them to file objections to the  

proposed acquisition. As indicated hereinabove in  

the various cases cited by Mr. Pradip Ghosh and, in  

particular, the decision in  Krishan Lal Arneja’s  

case (supra), in which reference has been made to  

the observations made by this Court in Om Prakash’s  

case (supra), it has been emphasized that a right  

under Section 5-A is not merely statutory but also  

has  the  flavour  of  fundamental  rights  under  

Articles  14  and  19  of  the  Constitution.   Such  

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observations  had  been  made  in  reference  to  an  

observation made in the earlier decision in Gurdial  

Singh’s case (supra) and keeping in mind the fact  

that right to property was no longer a fundamental  

right, an observation was made that even if the  

right  to  property  was  no  longer  a  fundamental  

right,  the  observations  relating  to  Article  14  

would continue to apply in full force with regard  

to Section 5-A of the L.A. Act.   

22. The observations made both in  Gurdial Singh’s  

case  (supra)  and  in  Om  Prakash’s  case  (supra)  

assign a great deal of importance to the right of a  

citizen to file objections under Section 5-A of the  

L.A. Act when his lands are being taken over under  

the provisions of the said Act.  That in the said  

decisions, 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  

authorities before resorting to Section 17(4) of  

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the  L.A.  Act.  and  that  they  had  to  satisfy  

themselves that there was an urgency of such nature  

as indicated in Section 17(2) of the Act, which  

could brook no delay whatsoever.  

23. Since  Section  5-A  of  the  L.A.  Act  had  been  

dispensed  with,  the  stage  under  Section  9  was  

arrived at within six months from the date of the  

notice issued under Section 4 and 17(2)(c) of the  

L.A. Act.  While such notice was issued on 23rd  

November, 2005, the Award under Section 11 was made  

on  23rd May,  2006.  During  this  period,  the  

appellants filed a suit, and, thereafter, withdrew  

the same and filed a writ petition in an attempt to  

protect their constitutional right to the property.  

It cannot, therefore, be said that there was either  

any negligence or lapse or delay on the part of the  

appellants.   

24. The  only  other  aspect  of  the  matter  which  

requires  consideration  is  whether  the  lands  in  

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question have already been utilized for the Sewage  

Treatment  Plant.   From  the  averments  made  and  

photographs which were brought to our notice, it  

appears that the site is still lying unutilized.  

In such circumstances, we consider it only proper  

that the appellants should get an opportunity to  

file their objections to the proposed acquisition  

under  Section  5-A  of  the  L.A.  Act  and  the  

respondents  would  be  at  liberty  to  take  

consequential steps after disposal of the same.   

25. We,  accordingly,  dispose  of  the  appeal  by  

directing  that  notwithstanding  the  invocation  of  

Section 17(2)(c) of the L.A. Act in its application  

to the States of Punjab and Haryana, the appellants  

will be at liberty to file objections under Section  

5-A of the L.A. Act within a month from the date  

before  the  concerned  authority,  who  will,  

thereafter,  dispose  of  the  same  upon  giving  the  

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objectors, if any, an opportunity of hearing and  

placing their respective cases.  

 26. The  learned  Advocate  for  the  appellants  is  

directed  to  communicate  this  order  to  the  L.A.  

Collector-cum-District  Revenue  Officer,  Jind,  

Haryana, within a week from  date.  

27. There will be no order as to costs.  

…………………………………………J. (ALTAMAS KABIR)

……………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated : 07.10.2009

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