REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.           OF 2011 (Arising out of Special Leave Petition (C) No.8939/10

Dev Sharan & Ors.  ...Appellant(s)

- Versus -

State of U.P. & Ors. ...Respondent(s)

With CIVIL APPEAL NO.           OF 2011

(Arising out of Special Leave Petition (C) No.10993/10

Babu Ram Dixit  ...Appellant(s)

- Versus -

State of U.P. & Ors. ...Respondent(s)

J U D G M E N T GANGULY, J.

1. Leave granted.  

2. These appeals have been preferred from the  

judgment and order of the High Court dated  

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25.11.2009  in  Writ  Petitions  (Civil)  

No.46457/2009.

3. The appellants challenge the acquisition of  

their agricultural lands by the State of  

Uttar Pradesh for the construction of the  

district  jail  of  Shahjahanpur.  The  

appellants  themselves  are  bhumidar with  

transferable  rights  and  are  residents  of  

village  Murchha,  tehsil  Puwayan  in  the  

district of Shahjahanpur, Uttar Pradesh.

4. The State of Uttar Pradesh vide its office  

memorandum dated 25.10.2004 constituted a  

committee  under  the  Chairmanship  of  the  

Hon’ble Minister of Revenue to suggest its  

recommendations  for  transfer  of  prisons  

situated in the congested areas of various  

districts. After conducting its second and  

final  meeting  on  10th January,  2005,  the  

said  committee  recommended  to  the  State  

Government  the  shifting  of  the  district  

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jails from congested areas to outside the  

city limits within the district. As per the  

schedule, this shifting was to be done in  

two phases:

1  st   phase   1. District Jail, Shahjahanpur; 2. District Jail, Azamgarh; 3. District Jail, Jaunpur; and 4. District Jail, Moradabad.

2  nd   phase   1. District Jail, Badaun; 2. District Jail, Varanasi; 3. District Jail, Barielly; and 4. District Jail, Muzaffarnagar.

5. The existing district jail of Shahjahanpur,  

constructed in 1870, was one of the oldest  

and required shifting to a new premises.  

The Government case is that the district  

jail is located in a densely populated area  

of the city and is overcrowded, housing as  

many  as  1869  prisoners,  while  having  a  

capacity of only 511.

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6. Thereafter,  the  State  Government  

constituted  a  committee  under  the  

Chairmanship of Chief Secretary, Government  

of  U.P.  vide  office  memorandum  dated  

12.9.2007  to  evaluate  and  consider  the  

shifting  of  prisons  identified  to  be  

shifted in the first phase. Prisons in the  

districts of Lucknow, Moradabad were added  

to  the  list.  This  committee  was  also  to  

evaluate  and  recommend  the  means  for  

modernisation of existing old prisons. In  

its meeting dated 10.10.2007 the committee  

recommended that a Detailed Project Report  

(DPR)  be  prepared  by  the  Rajkiya  Nirman  

Nigam, and that acquisition of lands for  

shifting  of  the  prisons  be  done  on  a  

priority basis.

7. These recommendations were accepted by the  

State Government vide the approval of the  

cabinet  dated  7.12.2007.  Following  this  

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decision, the Director General of Prisons  

(Administration  and  Reforms),  Uttar  

Pradesh,  vide  letter  dated  04.06.2008,  

requested  the  District  Magistrate,  

Shahjahanpur  to  send  all  the  relevant  

records  to  the  State  Government  for  

publication of notification under Sections  

4(1) and 17 of the Land Acquisition Act,  

1894  (hereinafter  ‘the  Act’).  The  land  

suggested  for  such  acquisition  by  the  

Divisional Land Utility Committee was one  

admeasuring 25.89 hectares (63.93 acres) in  

village  Morchha,  tehsil  Puwayan  in  the  

district of Shahjahanpur.  

8. Thereafter,  the  District  Magistrate,  

Shahjahanpur forwarded the proposal to the  

Commissioner and Director, Directorate of  

Land  Acquisition  (Revenue  Board,  Uttar  

Pradesh), for the issuance of notifications  

under  Sections  4(1)  and  17  of  the  Act,  

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which in turn approved of it and further  

forwarded the recommendation to the State  

Government, vide letter dated 2.07.2008.  

9. Thus,  the  State  Government  issued  

notifications under Sections 4(1) and 17 on  

21.08.2008.  However,  the  provisions  of  

Section 5A inquiry were dispensed with. The  

State  Government  explained  that  this  was  

done in view of the pressing urgency in the  

matter of construction of the jails.

10. Being  aggrieved  by  the  aforesaid  

notifications, the appellants moved a writ  

petition  before  the  High  Court  under  

Article 226 of the Constitution of India.  

The  High  Court  in  its  decision  dated  

25.11.2009  refused  to  interfere  with  the  

selection of the site for the construction  

of the jail premises on the ground that it  

was not required to do so unless it found  

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the  selection  of  the  site  was  wholly  

arbitrary. The High Court also approved the  

invoking  of  emergency  provisions  under  

Section 17 of the Act as per the guidelines  

given  in  Essco  Fabs  Private  Limited  and  

another vs.  State of Haryana   and another    (2009) 2 SCC 377. Having thus stated, the  

High Court dismissed the writ petition.

11. Before  this  Court  the  appellants  broadly  

raised the following arguments:

1. Whether or not the State Government was  justified in acquiring the said pieces of  fertile agricultural land, when there were  alternative sites of unfertile banjar land  available?

2. Whether or not the State Government was  justified in dispensing with the inquiry  which  is  mandated  to  be  conducted  under  Section 5A of the Act, especially when one  year  elapsed  between  the  notifications  under Section 4 and the one under Section  6. They further stated that the High Court  had erred insofar as it upheld the factum  of urgency in the absence of a categorical  finding, an enquiry under Section 5A would  have been detrimental to public interest.  

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12. It was urged that it was clear from the  

counter  of  the  respondent  that  the  

contemplation  of  a  new  prison  was  under  

consideration of the State Government for  

several years. Committee was formed, matter  

was  discussed  at  a  leisurely  pace  at  

various  levels  and  there  is  no  material  

fact  to  justify  the  abridgement  of  the  

appellants’ right of raising an objection  

to  acquisition  and  of  a  hearing  under  

Section 5A of the Act.

13. This Court finds a lot of substance in the  

contentions of the appellants.

14. In  connection  with  land  acquisition  

proceeding  whenever  the  provision  of  

Section  17  and  its  various  sub-sections  

including Section 17(4) is used in the name  

of taking urgent or emergent action and the  

right of hearing of the land holder under  

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Section 5A is dispensed with, the Court is  

called upon to consider a few fundamentals  

in the exercise of such powers.  

15. Admittedly,  the  Land  Acquisition  Act,  a  

pre-Constitutional legislation of colonial  

vintage  is  a  drastic  law,  being  

expropriatory in nature as it confers on  

the State a power which affects person’s  

property  right.  Even  though  right  to  

property is no longer fundamental and was  

never a natural right, and is acquired on a  

concession  by  the  State,  it  has  to  be  

accepted  that  without  right  to  some  

property,  other  rights  become  illusory.  

This Court is considering these questions,  

especially, in the context of some recent  

trends in land acquisition. This Court is  

of the opinion that the concept of public  

purpose  in  land  acquisition  has  to  be  

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viewed from an angle which is consistent  

with the concept of a welfare State.

16. The concept of public purpose cannot remain  

static for all time to come. The concept,  

even  though  sought  to  be  defined  under  

Section 3(f) of the Act, is not capable of  

any  precise  definition.  The  said  

definition,  having  suffered  several  

amendments, has assumed the character of an  

inclusive one. It must be accepted that in  

construing  public  purpose,  a  broad  and  

overall view has to be taken and the focus  

must be on ensuring maximum benefit to the  

largest number of people. Any attempt by  

the State to acquire land by promoting a  

public  purpose  to  benefit  a  particular  

group of people or to serve any particular  

interest at the cost of the interest of a  

large section of people especially of the  

common people defeats the very concept of  

public purpose. Even though the concept of  

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public  purpose  was  introduced  by  pre-

Constitutional legislation, its application  

must be consistent with the constitutional  

ethos  and  especially  the  chapter  under  

Fundamental Rights and also the Directive  

Principles.

17. In  construing  the  concept  of  public  

purpose, the mandate of Article 13 of the  

Constitution  that  any  pre-constitutional  

law cannot in any way take away or abridge  

rights  conferred  under  Part–III  must  be  

kept  in  mind.  By  judicial  interpretation  

the contents of these Part III rights are  

constantly expanded. The meaning of public  

purpose  in  acquisition  of  land  must  be  

judged on the touchstone of this expanded  

view  of  Part-III  rights.  The  open-ended  

nature  of  our  Constitution  needs  a  

harmonious  reconciliation  between  various  

competing  principles  and  the  overhanging  

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shadows of socio-economic reality in this  

country.

18. Therefore, the concept of public purpose on  

this broad horizon must also be read into  

the  provisions  of  emergency  power  under  

Section  17  with  the  consequential  

dispensation  of  right  of  hearing  under  

Section 5A of the said Act. The Courts must  

examine these questions very carefully when  

little Indians lose their small property in  

the  name  of  mindless  acquisition  at  the  

instance of the State. If public purpose  

can be satisfied by not rendering common  

man homeless and by exploring other avenues  

of  acquisition,  the  Courts,  before  

sanctioning  an  acquisition,  must  in  

exercise of its power of judicial review,  

focus  its  attention  on  the  concept  of  

social  and  economic  justice.  While  

examining  these  questions  of  public  

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importance,  the  Courts,  especially  the  

Higher Courts, cannot afford to act as mere  

umpires. In this context we reiterate the  

principle  laid  down  by  this  Court  in  

Authorised Officer, Thanjavur and another  vs. S. Naganatha Ayyar and others reported  in  (1979)  3  SCC  466,  wherein  this  Court  

held:

“……It  is  true  that  Judges  are  constitutional  invigilators  and  statutory  interpreters; but they are also responsive  and  responsible  to  Part  IV  of  the  Constitution being one of the trinity of  the  nation’s  appointed  instrumentalities  in  the  transformation  of  the  socio- economic  order.  The  judiciary,  in  its  sphere,  shares  the  revolutionary  purpose  of  the  constitutional  order,  and  when  called upon to decode social legislation  must  be  animated  by  a  goal-oriented  approach. This is part of the dynamics of  statutory interpretation in the developing  countries so that courts are not converted  into rescue shelters for those who seek to  defeat  agrarian  justice  by  cute  transactions of many manifestations now so  familiar in the country and illustrated by  the  several  cases  under  appeal.  This  caveat  has  become  necessary  because  the  judiciary is not a mere umpire, as some  assume,  but  an  activist  catalyst  in  the  constitutional scheme.”

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19. In  other  words  public  purpose  must  be  

viewed through the prism of Constitutional  

values as stated above.

20. The  aforesaid  principles  in  our  

jurisprudence compel this Court to construe  

any  expropriartory  legislation  like  the  

Land Acquisition Act very strictly.

21. The judicial pronouncements on this aspect  

are numerous, only a few of them may be  

noted here.

22. In  DLF  Qutab  Enclave  Complex  Educational  Charitable Trust vs.  State of Haryana and  Ors.  –  (2003)  5  SCC  622,  this  Court  construed the statute on Town Planning Law  

and held ”Expropriatory statute, as is well  

known,  must  be  strictly  construed.”  (See  

para 41 page 635). 14

23. The  same  principle  has  been  reiterated  

subsequently by a three-Judge Bench of this  

Court in State of Maharashtra and Anr. vs.  B.E. Billimoria and Ors. – (2003) 7 SCC 336  in the context of ceiling law. (See para 22  

at page 347 of the report).

24. These principles again found support in the  

decision of this Court in Chairman, Indore  Vikas Pradhikaran vs. Pure Industrial Coke  and Chemicals Ltd. and Ors. – (2007) 8 SCC  705,  wherein  this  Court  construed  the  

status  of  a  person’s  right  to  property  

after  deletion  of  Article  19(1)(f)  from  

Part  III.  By  referring  to  various  

international  covenants,  namely,  the  

Declaration of Human and Civic Rights, this  

Court  held  that  even  though  right  to  

property  has  ceased  to  be  a  fundamental  

right  but  it  would  however  be  given  an  

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express recognition as a legal right and  

also as a  human right .

25. While discussing the ambit and extent of  

property right, this Court reiterated that  

expropriatory  legislation  must  be  given  

strict construction. (See para 53 to 57 at  

pages 731 to 732 of the report)

26. In  the  background  of  the  aforesaid  

discussion, this Court proceeds to examine  

the scope of a person’s right under Section  

5A of the Act.

27. Initially, Section 5A was not there in the  

Land Acquisition Act, 1894 but the same was  

inserted long ago by the Land Acquisition  

(Amendment) Act, 1923 vide Section 3 of Act  

38 of 1923.

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28. The history behind insertion of Section 5A,  

in the Act of 1894 seems to be a decision  

of  the  Division  Bench  of  Calcutta  High  

Court in  J.E.D. Ezra vs.  The Secretary of  

State for India and ors reported in 7 C. W.  

N.  249.  In  that  case,  the  properties  of  

Ezra were sought to be acquired under the  

pre  amended  provision  of  the  Act  for  

expansion  of  the  offices  of  the  Bank  of  

Bengal.  In  challenging  the  said  

acquisition, it was argued that the person  

whose property is going to be taken away  

should  be  allowed  a  hearing  on  the  

principles of natural justice. However the  

judges  found  that  there  was  no  such  

provision in the Act. (see p. 269)

29. In order to remedy this shortcoming in the  

Act  of  1894,  an  amendment  by  way  of  

incorporation of Section 5A was introduced  

on 11th July, 1923. The Statement of Objects  

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and Reasons for the said Amendment is as  

follows:  

“The Land Acquisition Act I of 1894 does  not  provide  that  persons  having  an  interest in land which it is proposed to  acquire, shall have the right of objecting  to  such  acquisition;  nor  is  Government  bound  to  enquire  into  and  consider  any  objections that may reach them. The object  of this Bill is to provide that a Local  Government  shall  not  declare,  under  section  6  of  the  Act,  that  any  land  is  needed  for  a  public  purpose  unless  time  has  been  allowed  after  the  notification  under section 4 for persons interested in  the land to put in objections and for such  objections to be considered by the Local  Government.”  

(Gazette of India, Pt. V, dated 14th July,  1923, page 260)

30. The said amendment was assented to by the  

Governor  General  on  5th August,  1923  and  

came into force on 1st January, 1924.

31. The importance and scheme of Section 5A was  

construed by this Court in several cases.  

As  early  as  in  1964,  this  Court  in  

Nandeshwar  Prasad  and  Ors.  vs.  U.P.  

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Government and Ors. Etc. – AIR 1964 SC 1217  speaking through Justice K.N. Wanchoo (as  

His Lordship then was) held “…The right to  

file  objections  under  Section  5A  is  a  

substantial right when a person’s property  

is being threatened with acquisition and we  

cannot accept that that right can be taken  

away as if by a side-wind…..” In that case  

the Court was considering the importance of  

rights under Section 5A vis-à-vis Section  

17(1) and Section 17(1)(A) of the Act. (See  

para 13 at page 1222 of the report).

32. The  same  view  has  been  reiterated  by  

another three-Judge Bench decision of this  

Court in Munshi Singh and Ors. vs. Union of  India – (1973) 2 SCC 337. In para 7 of the  report  this  Court  held  that  Section  5A  

embodies  a  very  just  and  wholesome  

principle of giving proper and reasonable  

opportunity to a land loser of persuading  

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the  authorities  that  his  property  should  

not be acquired. This Court made it clear  

that declaration under Section 6 has to be  

made only after the appropriate Government  

is  satisfied  on  a  consideration  of  the  

report made by the Collector under Section  

5A. The Court, however, made it clear that  

only  in  a  case  of  real  urgency  the  

provision of Section 5A can be dispensed  

with (See para 7 page 342 of the report).

33. In  Hindustan Petroleum Corporation Limited  

vs. Darius Shahpur Chennai and ors., (2005)  

7 SCC 627, this Court held that the right  

which is conferred under Section 5A has to  

be  read  considering  the  provisions  of  

Article 300-A of the Constitution and, so  

construed,  the  right  under  Section  5A  

should be interpreted as being akin to a  

Fundamental Right. This Court held that the  

same  being  the  legal  position,  the  

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procedures which have been laid down for  

depriving a person of the said right must  

be strictly complied with.  

34. In a recent judgment of this Court in Essco  

Fabs (supra), (2009) 2 SCC 377, this Court,  

after  considering  previous  judgments  as  

also the provisions of Section 17 of the  

Act held:

“41.  Whereas  sub-section  (1)  of  Section  17  deals with cases of “urgency”, sub-section (2)  of  the  said  section  covers  cases  of  “sudden  change in the channel of any navigable river or  other unforeseen emergency”. But even in such  cases  i.e. cases  of “urgency”  or “unforeseen  emergency”, enquiry contemplated by Section 5-A  cannot  ipso facto be dispensed with which is  clear from sub-section (4) of Section 17 of the  Act.”

35. This  Court,  therefore,  held  that  once  a  

case is covered under sub-section (1) or  

(2)  of  Section  17,  sub-section  (4)  of  

Section 17 would not necessarily apply.  

“54. In our opinion, therefore, the contention  of  learned  counsel  for  the  respondent  authorities is not well founded and cannot be  

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upheld  that  once  a  case  is  covered  by  sub- sections (1) or (2) of Section 17 of the Act,  sub-section (4) of Section 17 would necessarily  apply  and  there  is  no  question  of  holding  inquiry or hearing objections under Section 5-A  of the Act. Acceptance of such contention or  upholding  of  this  argument  will  make  sub- section  (4)  of  Section  17  totally  otiose,  redundant and nugatory.”

36. This Court also held that in view of the  

ratio in  Union of India vs.  Mukesh Hans,  (2004) 8 SCC 14, sub-section (4) of Section  

17  cannot  be  pressed  into  service  by  

officers who are negligent and lethargic in  

initiating acquisition proceedings.

37. The  question  is  whether  in  the  admitted  

facts of this case, invoking the urgency  

clause under Section 17 (4) is justified.  

In the writ petition before the High Court,  

the petitioners have given the details of  

the  land  holding,  and  it  has  also  been  

stated  that  the  entire  holding  of  

petitioners 2, 5, 7, 9, 10, 11 and 13 have  

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been  acquired,  and  as  a  result  of  such  

acquisition,  the  petitioners  have  become  

landless. From the various facts disclosed  

in the said affidavit it appears that the  

matter  was  initiated  by  the  Government’s  

letter dated 4th of June, 2008 for issuance  

of  Section  4(1)  and  Section  17  

notifications. A meeting for selection of  

the suitable site for construction was held  

on 27th June, 2008, and the proposal for  

such acquisition and construction was sent  

to the Director, Land Acquisition on 2nd of  

July, 2008. This was in turn forwarded to  

the State Government by the Director on 22nd  

of July, 2008. After due consideration of  

the forwarded proposal and documents, the  

State  Government  issued  the  Section  4  

notification,  along  with  Section  17  

notification on 21st of August, 2008. These  

notifications  were  published  in  local  

newspapers  on  24th of  September,  2008.  

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Thereafter, over a period of 9 months, the  

State  Government  deposited  10%  of  

compensation  payable  to  the  landowners,  

along with 10% of acquisition expenses and  

70% of cost of acquisition was deposited,  

and the proposal for issuance of Section 6  

declaration was sent to the Director, Land  

Acquisition  on  19th of  June,  2009.  The  

Director in turn forwarded all these to the  

State Government on 17th July, 2009, and the  

State Government finally issued the Section  

6 declaration on 10th of August, 2009. This  

declaration  was  published  in  the  local  

dailies on 17th of August, 2009.

38. Thus  the  time  which  elapsed  between  

publication of Section 4(1) and Section 17  

notifications, and Section 6 declaration,  

in the local newspapers is of 11 months and  

23 days, i.e. almost one year. This slow  

pace at which the government machinery had  

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functioned in processing the acquisition,  

clearly evinces that there was no urgency  

for  acquiring  the  land  so  as  to  warrant  

invoking Section 17 (4) of the Act.

39. In paragraph 15 of the writ petition, it  

has been clearly stated that there was a  

time  gap  of  more  than  11  months  between  

Section  4  and  Section  6  notifications,  

which  demonstrates  that  there  was  no  

urgency  in  the  State  action  which  could  

deny  the  petitioners  their  right  under  

Section 5A. In the counter which was filed  

in this case by the State before the High  

Court, it was not disputed that the time  

gap  between  Section  4  notification  read  

with Section 17, and Section 6 notification  

was about 11 months.  

40. The construction of jail is certainly in  

public interest and for such construction  

land may be acquired. But such acquisition  25

can be made only by strictly following the  

mandate of the said Act. In the facts of  

this case, such acquisition cannot be made  

by invoking emergency provisions of Section  

17. If so advised, Government can initiate  

acquisition  proceeding  by  following  the  

provision of Section 5A of the Act and in  

accordance with law.

41. For the reasons aforesaid, we hold that the  

State Government was not justified, in the  

facts of this case, to invoke the emergency  

provision of Section 17(4) of the Act. The  

valuable  right  of  the  appellants  under  

Section 5A of the Act cannot flattened and  

steamrolled  on  the  ‘ipsi  dixit’  of  the  

executive  authority.  The  impugned  

notifications under Sections 4 and 6 of the  

Act  in  so  far  as  they  relate  to  the  

appellants’  land  are  quashed.  The  

possession of the appellants in respect of  

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their land cannot be interfered with except  

in accordance with law.

42. The  appeals  are  allowed.  No  order  as  to  

costs.

.......................J. (G.S. SINGHVI)

.......................J. New Delhi (ASOK KUMAR GANGULY) March 07, 2011

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