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PETITIONER: STATE OF U.P. ETC.

       Vs.

RESPONDENT: SMT. PISTA DEVI & ORS.

DATE OF JUDGMENT12/09/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) KHALID, V. (J)

CITATION:  1986 AIR 2025            1986 SCR  (3) 743  1986 SCC  (4) 251        JT 1986   420  1986 SCALE  (2)423  CITATOR INFO :  R          1988 SC1450  (16)

ACT:      Land Acquisition  Act, 1894:  ss. 4,  SA, 6, 17(1), (4) and 17(1A)-  Acquisition for  urban  housing-Urgency-Inquiry dispensed with-  Post-notification  delay  of  one  year  in publishing   declaration-Action   whether   vitiated-Whether Government can take possession of land, other than waste and arable.      Delhi Development  Act, 1957:  s. 21(2)-  Provision  of relief to  those being expropriated-Principle recommended to be followed by other Development Authorities.

HEADNOTE:      The appellants  are owners  of arable land Lying on the outskirts of Meerut City. The land was sought to be acquired by the  Meerut  Development  Authority  for  its  scheme  to provide housing  accommodation to the residents of the city. The Collector,  recommended the acquisition of the said land on December  13, 1979,  stating that  in view  of the  acute shortage of  houses in  the city  it was  necessary that the State Government  invoke  s.  17(1)  and  (4)  of  the  Land Acquisition Act, 1894. The notification under s. 4(1) of the Act dated  April 29,  1980 was  published in  the Gazette on July 12,  1980, stating that the provisions of sub-s. (1) of s. 17  of the  Act were applicable to the said land and that s. 5-A  shall not  apply to  the proposed acquisition. After publication of  the notification  the Collector noticed some errors in  it which needed to be corrected by a corrigendum. The corrigendum  and the  declaration under  s. 6 of the Act were issued  on May  1, 1981. The possession of the land was taken and handed over to the Authority in July 1982.      The appellants  filed writ  petitions in the High Court questioning the  notification under  s.  4  and  declaration under s.  6 of  the Act  alleging that  the  action  of  the Government in  invoking s.  17(1) and  dispensing  with  the inquiry under  s. 5A  were not  called for since the case of urgency put  forward by the State Government had been belied by the  delay of nearly one year that had ensued between the date of notifica- 744

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tion under  s. 4  and the declaration under s. 6 of the Act. It was  also contended  that in the large extent of the land acquired there were some buildings here and there and so the acquisition was  not justified since these portions were not either waste or arable lands which could be dealt with under s. 17(1).      The High  Court being  of the  view that the failure to issue the declaration under s.6 of the Act immediately after the notification  under  s.  4  was  fatal,  held  that  the notification dated April 29, 1980 under s. 4 which contained a direction under s. 17(4) dispensing with the inquiry under s. 5A  of the  Act was  invalid  and,  therefore,  both  the notification under  s. 4 and the subsequent declaration made under s. 6 were liable to be quashed.      In the  appeals by  special leave  to this Court on the question: Whether  in the circumstances of the case it could be said that on ac count of mere delay of nearly one year in the publication of the declaration it could be said that the order  made   by  the   State  Government   dispensing  with compliance with  s. 5A  at the  time of  publication of  the notification under  s. 4(1)  would  stand  vitiated  in  the absence of any other material.      Allowing the appeals, ^      HELD: 1.1  Having regard  to  the  enormous  growth  of population  in   the  country   the  provision   of  housing accommodation in  these days has become a matter of national urgency. The  schemes relating to development of residential areas in  the  urban  centres  are  so  urgent  that  it  is necessary to invoke s. 17(1) of the Act to dispense with the inquiry under s. 5A. [749 F-G]      1.2 In  the instant case, there is no allegation of any kind of  mala fides  on the part of either the Government or any of  the officers,  nor do  the respondents  contend that there  was   no  urgent   necessity  for  providing  housing accommodation to a large number of people of the city during the relevant time. [749 E]      1.3 The  mere fact that on account of some error on the part of  the officials  processing the  case at the level of the Secretariat  there  was  a  post-notification  delay  of nearly one  year in  issuing  declaration  under  s.  6  is, therefore,  not  by  itself  sufficient  to  hold  that  the decision taken  by the  State Government  under s. 17(1) and (4) of  the Act at the time of the issue of the notification under s.  4(1) of  the Act  was either  improper or illegal. [751 A-B] 745      Deepak Pahwa  etc. v.  Lt. Governor  of Delhi  &  Ors., [1985] (1) S.C.R. 588 referred to.      Narayan Govind  Gavate etc.  v. State  of  Maharashtra, [1977] (1) S.C.R. 768 distinguished.      2.1 Where  a large extent of land is being acquired for planned development  of an urban area it would not be proper to leave  small portions,  over which  some super-structures have been  constructed, out  of the development scheme. In 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. [751 D-E]      2.2 Whether  the land  in question  is waste  or arable land has  to be  judged by looking at the general nature and condition of land. [751 E-F]      3.1 Whenever  power under  s.  17(1)  is  invoked,  the Government automatically becomes entitled to take possession of land,  other than  waste and  arable, by virtue of sub-s.

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(1-A)  of  s.  17  without  further  declaration  where  the acquisition  is   for  sanitary   improvement   or   planned development. [752 B-C]      3.2 In  the  instant  case,  the  acquisition  was  for planned development. The mere omission to refer expressly to s.  17(1-A)  of  the  Act  in  the  notification  cannot  be considered to be fatal in this case. [752 B]      4.1 It  may be that many of the persons from whom lands have been  acquired are  also persons without houses or shop sites and  if they  are to be thrown out of their lands they would be  exposed to  serious prejudice.  Since the  land is being acquired  for providing  residential accommodation  to the people  of Meerut  those who  are being  expropriated on account  of   the  acquisition  proceedings  would  also  be eligible for  some relief  at the  hands  of  the  concerned Development Authority. [752 D-E]      4.2 Although  s. 21(2)  of the  Delhi Development  Act, 1957  which  provides  for  such  relief  is  not  in  terms applicable  to  the  present  acquisition  proceedings,  the provision nonetheless  contains a  wholesome principle which should be followed by all Development Authorities throughout the country  when they  acquire large tracts of land for the purposes of land development in urban areas. [753 B-C]      The Meerut Development Authority, for whose benefit the land in 746 question has  been acquired,  it is  hoped, will  as far  as practicable, provide a house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have  no houses  or shop  buildings in the urban area in question. [753 C-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 1495- 1507 and 1509-1511 of 1986 etc.      From the  Judgment and  order dated  24.5.1985  of  the Allahabad High  Court in  Civil  Misc.  Writ  Petition  Nos. 7729/82, 12762/81, 7810, 7865, 8408, 8409, 8407, 8410, 8872, 9527, 9439, 2482, 5170, 5122, 7903 and 7904 of 1982.      K. Parasaran, Attorney General, Anil Dev Singh, Mrs. S. Dixit, B.P. Maheshwari and S.N. Agarwal for the Appellants.      R.K. Garg, Raja Ram Agarwal, P.D. Sharma, M.C. Dhingra, D.D. Gupta and Ashok Srivastava for the Respondents.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  Meerut city  which is  situated in a densely populated  part of  the State  of Uttar  Pradesh  is growing very fast.  The  State   Government  constituted   a Development Authority under the provisions of the U.P. Urban Planning and  Development Act,  1973 for  the city of Meerut for the  purpose of  tackling the  problems of town planning and urban  development resolutely,  since it  felt that  the existing local  body and other authorities in spite of their best efforts  had not been able to cope up with the problems to the desired extent.      The Meerut Development Authority sent a proposal to the Collector of  Meerut for acquisition of 662 bighas 10 biswas and 2  biswanis of  land (approximately  equal to 412 acres) situated at villages Mukarrabpur, Plahera, Paragana-Daurala, Tehsil Sardhana,  Distt. Meerut  for its housing scheme with the  object   of  providing  housing  accommodation  to  the residents of  Meerut city.  After making necessary enquiries and receipt  of the  report from  the tehsildar of Sardhana, the Collector  was fully  satisfied about  the need  for the

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acquisition of  the land.  He accordingly  wrote a letter on December 13, 1979 to the Commissioner and Secretary, Housing and Urban Development, Government of Uttar Pradhesh recom- mending the  acquisition of  the above extent of land in the villages men 747 tioned above  and he  also stated that since there was acute shortage of houses in Meerut city, it was necessary that the State Government  should invoke section 17(i) and (4) of the Land Acquisition  Act, 1894 (hereinafter referred to as ’the Act’). He  also submitted  a certificate  as required by the Rules containing the relevant data on the basis of which the Government could  take a  decision. In  that certificate  he stated that  the acquisition  of the land was very necessary for the  purposes of  the housing scheme. The total value of the land was estimated to be about Rs.55,01,270.25 paise and the cost  of trees  and structures  was stated  to be in the order of  about Rs.  1 lakh.  The Secretary  of  the  Meerut Development Authority  also  submitted  his  certificate  in support of  the acquisition  of the  land  in  question.  He stated that  the proposed  cost of  the project  was in  the order of  Rs. 48  crores. He  also furnished  the number  of flats to  be constructed and house sites to be allotted. The certificate further  stated that the land which was proposed to be  acquired was  being used for cultivation and that the said land  had been  proposed to  be  used  for  residential purposes under  the master plan of Meerut city. After taking into consideration  all the material before it including the certificates of  the Collector  and  the  Secretary,  Meerut Development  Authority,   referred  to   above,  the   State Government published  a notification under subsection (1) of section 4  of the Act notifying for general information that the land  mentioned in  the Schedule was needed for a public purpose,  namely,   for  the   construction  of  residential buildings for the people of Meerut by the Meerut Development Authority  under   a   planned   development   scheme.   The notification further  stated that the State Government being of the  opinion that  the provisions  of subsection  (1)  of section 17  of the  Act were  applicable to  the  said  land inasmuch as  it was  arable land which was urgently required for the  public purpose, referred to above. The notification further directed that section 5-A of the Act shall not apply to the  proposed acquisition.  The  above  notification  was published in  the U.P.  Gazette on  July 12, 1980 and it was followed by  a declaration  under section 6 of the Act which was issued on May 1, 1981. The possession of the land, which had been notified for acquisition, 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  of Allahabad questioning the notification  under  section  4  and  declaration  under section 6  of the  Act on  the ground that the action of the Government  in   invoking  section  17(1)  of  the  Act  and dispensing with the inquiry under section 5-A of the Act was not called for in the circumst- 748 ances of  the case. The High Court after hearing the parties held that  the notification  dated 29.4.1980 under section 4 of the  Act which  contained a direction under section 17(4) of the  Act dispensing with the inquiry under section 5-A of the  Act  was  an  invalid  one  and,  therefore,  both  the notification under  section 4 and the subsequent declaration made under  section 6  of the Act were liable to be quashed. Accordingly they were quashed.

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    It should  be stated  here that  while only  17 persons owning about  40 acres of land had filed the writ petitions, the High  Court set  aside the  acquisition  of  the  entire extent of  about 412  acres. That was the effect of quashing the notification  issued under  section 4(1)  of the Act and all subsequent proceedings as the relief was not confined to the petitioners  only. By  the time the judgment of the High Court was pronounced on May 24, 1985, it is stated, that the Meerut Development Authority had spent more than Rs.4 crores on the  development of  the land which had been acquired. By then 854  houses had  been constructed  on the  land and 809 plots had  been allotted  by it  to various persons. All the landowners other  than the  writ petitioners before the High Court had  been paid  two-thirds of  the compensation due to them.      Aggrieved by  the decision of the High Court, the State of Uttar  Pradesh and  the Meerut Development Authority have filed the above appeals by special leave.      The main  ground on  which the High Court set aside the impugned notification  and the declaration was that the case of  urgency   put  forward   by  the  State  Government  for dispensing  with  the  compliance  with  the  provisions  of section 5-A  of the  Act had  been belied  by the  delay  of nearly one  year that  had ensued  between the  date of  the notification under  section 4  and the  date of  declaration made under  section 6  of the Act. It, however, rejected the contention of  the petitioners  based on  the delay that had preceded the  issue of  the notification  under section 4 of the Act.  The High  Court observed  that ’if  the Government were satisfied  with the  urgency it  would  have  certainly issued declaration  under section  6 of  the Act immediately after the  issue of  the notification under section 4 of the Act.’ It  found that  the failure to issue declaration under section 6  of the  Act immediately  on the part of the State Government was  fatal. That  there was  delay of  nearly one year between  the  publication  of  the  notification  under section 4(1)  of the Act containing the direction dispensing with the compliance with section 5-A of the Act and the date of publication of the 749 declaration issued  under  section  6  of  the  Act  is  not disputed. It  is seen  from the  record before us that after the publication  of the  notification under  section 4(1) of the Act,  the Collector  after going  through it  found that there were  some errors  in the notification which needed to be corrected by issuing a corrigendum. Accordingly, he wrote a letter  to the  State Government on 25.8.1980 pointing out the errors  and requesting the State Government to publish a corrigendum  immediately.   Both  the  corrigendum  and  the declaration under section 6 of the Act were issued on May 1, 1981. It  is on  account of  some error  on the  part of the officials who  were entrusted with the duty of processing of the case  at the  level of the Secretariat there was a delay of  nearly   one  year   between  the   publication  of  the notification under  section 4(1)  and the publication of the declaration under  section 6  of the  Act. The  question for consideration is whether in the circumstances of the case it could be  said that  on account  of the mere delay of nearly one year  in the  publication of the declaration it could be said that  the order made by the State Government dispensing with the  compliance with section 5-A of the Act at the time of the publication of the notification under section 4(1) of the Act  would stand  vitiated in  the absence  of any other material. In this case there is no allegation of any kind of mala fides  on the  part of  either the Government or any of

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the officers,  nor do the respondents contend that there was no urgent necessity for providing housing accommodation to a large number  of people  of Meerut  city during the relevant time. The  letters and  the certificates  submitted  by  the Collector  and  the  Secretary  of  the  Meerut  Development Authority   to the  State Government before the issue of the notification  under   section  4(1)   of  the   Act  clearly demonstrated that  at that  time there  was a  great urgency felt  by   them   regarding   the   provision   of   housing accommodation at Meerut. The State Government acted upon the said reports,  certificates and  other material  which  were before it.  In the  circumstances of  the case  it cannot be said that  the decision of the State Government in resorting to section  17(1) of  the Act was unwarranted. The provision of housing  accommodation in  these days has become a matter of national  urgency. We  may take  judicial notice  of this fact. Now  it is  difficult to  hold that  in  the  case  of proceedings relating  to acquisition  of land  for providing house sites it is unnecessary to invoke section 17(1) of the Act and  to dispense with the compliance with section 5-A of the Act.  Perhaps, at  the time  to which  the  decision  in Narayan Govind  Gavate etc.  v. State of Maharashtra, [1977] (1) S.C.R.  768 related  the situation  might have been that the schemes  relating to development of residential areas in the urban  centres  were  not  so  urgent  and  it  was  not necessary to eliminate the inquiry under 750 section 5-A  of the  Act. The  acquisition proceedings which had been  challenged in  that case related to the year 1963. During this  period  of  nearly  23  years  since  then  the population of  India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes  of development  of  residential  areas  do  not ’appear to  demand such  emergent  action  as  to  eliminate summary  inquiries   under  section  5-A  of  the  Act’.  In Kasireddy Papaiah  (died) and  Ors.  v.  The  Government  of Andhra Pradesh  & Ors.,  A.I.R.  1975  A.P.  269.  Chinnappa Reddy, J.  speaking for  the High  Court of  Andhra  Pradesh dealing with  the problem of providing housing accommodation to Harijans has observed thus:           "That the  housing conditions of Harijans all over           the country continue to be miserable even today is           a fact  of which courts are bound to take judicial           notice. History  has made  it urgent  that,  among           other problems,  the problem  of housing  Harijans           should be  solved expeditiously.  The greater  the           delay  the   more  urgent   becomes  the  problem.           Therefore, one  can never  venture to say that the           invocation of the emergency provisions of the Land           Acquisition Act  for  providing  house  sites  for           Harijans  is  bad  merely  because  the  officials           entrusted with  the task  of taking further action           in the  matter  are  negligent  or  tardy  in  the           discharging of their duties, unless, of course, it           can be  established that the acquisition itself is           made with  an oblique motive. The urgent pressures           of history are not to be undone by the inaction of           the bureaucracy.  I am  not  trying  to  make  any           pontific pronouncements.  But I  am at great pains           to point  out that  provision for  house sites for           Harijans is  an urgent and pres sing necessity and           that the invocation of the emergency provisions of           the Land  Acquisition Act  cannot be  said  to  be           improper, in  the absence  of mala  fides,  merely           because  of   the  delay   on  the  part  of  some

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         Government officials."                                          (Underlining by us)      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 751 Deepak Pahwa  etc. v.  Lt. Governor  of Delhi & Ors., [1985] (1) S.C.R.  588 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.      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 these 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 out-skirts 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 (20 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, in connection with sanitary           improvements of any kind or planned development."      It is  no doubt  true that  in the  notification issued under section 4 752 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

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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.      It is,  however, argued  by the learned counsel for the respondents that  many of  the persons  from whom lands have been acquired  are also persons without houses or shop sites and if they are to be thrown out of their land they would be exposed to  serious  prejudice.  Since  the  land  is  being acquired for  providing  residential  accommodation  to  the people of Meerut those who are being expropriated on account of the  acquisition proceedings  would also  be eligible for some  relief   at  the   hands  of  the  Meerut  Development Authority. We  may at  this stage  refer  to  the  provision contained in  section 21(2)  of the  Delhi Development  Act, 1957 which reads as follows:           "21(2). The  powers of  the Authority  or, as  the           case may  be, the  local authority  concerned with           respect to  the disposal of land under sub-section           (1) shall  be so exercised as to secure, so far as           practicable,  that   persons  who  are  living  or           carrying on  business or  other activities  on the           land shall, if they desire to obtain accommodation           on land  belonging to  the Authority  or the local           authority concerned and are willing to comply with           any requirements  of the  Authority or  the  local           authority concerned as to its development and use,           have   an    opportunity   to    obtain    thereon           accommodation   suitable   to   their   reasonable           requirements on  terms settled  with due regard to           the price at which any such land has been acquired           from them:                Provided that  where  the  Authority  or  the           local au- 753           thority concerned  proposes to  dispose of by sale           any  land  without  any  development  having  been           undertaken or  carried out thereon, it shall offer           the land in the first instance to the persons from           whom it  was acquired,  if they desire to purchase           it subject to such requirements as to its develop-           ment  and  use  as  the  Authority  or  the  local           authority concerned may think fit to impose."      Although the said section is not in terms applicable to the pre  sent acquisition  proceedings, we  are of  the view that the  above  provision  in  the  Delhi  Development  Act contains a  wholesome principle  which should be followed by all Development Authorities throughout the country when they acquire large  tracts of  land  for  the  purposes  of  land development in  urban areas.  We hope  and  trust  that  the Meerut Development  Authority, for whose benefit the land in question has  been acquired,  will  as  far  as  practicable provide a  house site  or shop  site of  reasonable size  on reasonable terms  to each  of the  expropriated persons  who have no  houses or  shop buildings  in  the  urban  area  in question.      Having regard  to what  we have stated above, we are of the view  that the  judgment of  the High  Court  cannot  be

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sustained and  it is  liable to be set aside. We accordingly allow these  appeals, set  aside the  judgment of  the  High Court  and   dismiss  the   Writ  Petitions   filed  by  the respondents in  the High  Court. There  is no  order  as  to costs. P.S.S.                                     Appeals allowed. 754